Jobin Sebastian, J.

1. Both these appeals have been preferred challenging   the judgment of conviction and order of sentence passed against the accused in S.C.No.3/2012 on the file of Additional Sessions Court-III, Thalassery for offences punishable under Sections 143, 147, 148, 341, 324 and 302 r/w 149 of the IPC and Section 5(1)(a) r/w Section 27 of the Arms Act. Out of the said appeals, Crl.A. No.409/2019 has been preferred by accused Nos.1, 2, 4 and 14 and Crl.A.No. 399/2019 is by accused Nos.3, 5, 7, 8 and 9. By the impugned judgment, accused Nos.6, 10 to 13, 15 and 16 were acquitted.

2. The prosecution case in brief is as follows:-

Dileepan, the deceased in this case, was the Secretary of the Communist Party of India (Marxist) of the Chakkad branch and PW1 and PW2 were the workers of the said political party. The accused were the workers of another political party, namely, the National Development Front (NDF). As one of the workers of NDF, namely, Sainudheen was murdered by CPI(M) activists, there arose a political rivalry between these two parties, and the accused Nos. 1 to 16, who were the workers of NDF, on 24.08.2008, formed themselves into an unlawful assembly armed with deadly weapons in a coconut plantation of one Hamza situated at Chakkad and in prosecution of the common object of the said assembly to murder Dileepan, the accused wrongfully restrained Dileepan, who was enroute to his house, accompanied by PW1 and PW2 and attacked him with dangerous weapons. The 1st and 14th accused allegedly hacked Dillepan with axes on his face and head, the 2nd accused hacked on his leg and shoulder with a sword, and the other accused, who were holding dangerous weapons like sword and axe, also inflicted injuries on Dillepan. When PW1 and PW2 attempted to escape by running from the spot, the 4th accused, who followed them, beat them on their back with a stick and hence inflicted injuries on them. After the incident, though Dillepan was taken to Amala Hospital, Iritty and thereafter for better management to Co-Operative Hospital, Thalassery, he succumbed to the injuries. Hence, the accused are alleged committed the offences punishable under Sections 143, 147, 148, 341, 324 and 302 r/w 149 of the IPC and Section 5(1)(a) r/w Section 27 of the Arms Act.

3. On completion of the investigation, the final report was submitted in this case before the Judicial First Class Magistrate Court, Mattannur. Being satisfied that the case was one triable exclusively by the Court of Session, the learned Magistrate, after complying with all the necessary formalities, committed the case to the Court of Session, Thalassery, under Section 209 of the Criminal Procedure Code. The learned Sessions Judge, after taking cognizance of the offences, had made over the case for trial and disposal to the Additional Sessions Court-III, Thalassery.

4. On appeareance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under section 227 of Cr.P.C. and upon perusal of the records, framed a written charge against the accused for offences punishable under Sections 143, 147, 148, 341, 324 and 302 r/w 149 of the IPC and Section 5(1)(a) r/w Section 27 of the Arms Act. When the charge was read over and explained to the accused, all of them pleaded not guilty and claimed to be tried.

5. During the trial, from the side of the prosecution, PW1 to PW24 were examined and marked Exts.P1 to P32. The contradictions in the 161 statement of the prosecution witnesses brought out by the defence were marked as Exts.D1 to D3. MO1 to MO34 series were exhibited and identified. After the completion of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C., during which all of them denied all the incriminating materials brought out in evidence against them. Thereafter, both sides were heard under Section 232 of Cr.P.C., and as it was not a fit case to acquit under the said provision, the accused were directed to enter on their defence and to adduce any evidence that they may have in support thereof. From the side of the accused, one document was marked as Ext.D4.

6. Thereafter, both sides were heard in detail, and finally, the learned Additional Sessions Judge found accused Nos. 1 to 5, 7, 8, 9 and 14 guilty of the offences punishable under Sections 143, 147, 341, 324 and 302 r/w 149 of the IPC and Section 5(1)(a) r/w Section 27 of the Arms Act and convicted them thereunder. In addition, the accused Nos. 1, 2 and 14 were found guilty of an offence punishable under Section 148 of the IPC, and convicted for the said offence also.

7. For offence punishable under section 302 r/w 149 IPC, the accused No.1 to 5, 7, 8, 9 and 14 were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 30,000/- each and in default of payment of fine, they were ordered to undergo rigorous imprisonment for one year. Likewise, for offence punishable under Section 143 of the IPC, the accused Nos. 1 to 5, 7, 8, 9 and 14 were sentenced to undergo rigorous imprisonment for a period of six months. For offences punishable under Sections 341 and 324 r/w 149 IPC, the accused Nos.1 to 5, 7, 8, 9 and 14 were sentenced to undergo simple imprisonment for one month and rigorous imprisonment for six months respectively. For offence punishable under Section 147 r/w 149 of IPC, accused Nos. 3 to 5, 7, 8 and 9 were sentenced to undergo rigorous imprisonment for one year. For the offence punishable under Section 148, accused Nos. 1, 2 and 14 were sentenced to undergo rigorous imprisonment for two years. Moreover, the accused Nos.1 to 5, 7, 8, 9 and 14 were sentenced to undergo rigorous imprisonment for a period of three years under Section 5(1)(a) r/w 27 of the Arms Act. The substantive sentences were ordered to be run concurrently. Challenging the findings of guilt, the conviction, and the order of sentence passed by the trial court, accused No.1 to 5, 7, 8, 9 and 14 have preferred these appeals.

8. We heard Sri. P.Vijayabhanu and Sri. Renjith B.Marar, the learned counsel appearing for the appellants and Sri. T. R. Renjith, the learned Public Prosecutor appearing for the respondent.

9. This is a case in which a 32-year-old man named Dileepan, a local-level leader of CPI(M), a political party, was brutally killed due to political rivalry. The accused, who faced the charge for the murder of Dileepan belong to NDF, another political party, and according to the prosecution, the said murder was a retaliation for an incident in which one Sainudheen, an NDF activist, was allegedly killed at the hands of CPI(M) activists. The incident that led to the death of Dileepan occurred on 24.08.2008 at 9.00 p.m. According to the prosecution, in the very same incident, two other CPI(M) workers, who were then accompanying Dileepan, also sustained injuries at the hands of the assailants.

10. The law was set in motion in this case on the strength of the statement given by PW1, one of those injured in the incident, to PW20, the Assistant Sub Inspector of Police, Iritti Police Station. Acting upon this initial statement, PW19 registered the First Information Report (FIR), marked as Ext.P11, alleging the commission of offences punishable under Section 143, 147, 148, 324, 302 r/w 149 of the IPC. Following the registration of the FIR, the Circle Inspector of Police, Iritti (PW21), conducted the initial investigation in the case and later, PW23, his successor-in-office, after compiling the evidence and materials collected, filed the final report before the Jurisdictional Magistrate.

11. When PW1, the first informant, who is allegedly an injured in the incident, was examined, he deposed that he is a resident of Muzhakkunnu, Chakkad. He was acquainted with the deceased Dileepan from childhood onwards, as both of them belonged to the same locality. The deceased was the Secretary of CPI(M), Chakkad branch, and he was a loyalist of the said party. The incident in this case occurred on 24.08.2008 at 9.00 p.m. On the said day, at 3.00 p.m., he, along with deceased Dileepan and PW2, was near the Chakkad Ovappally area and was engaged in joining subscribers for Desabhimani Daily. They were so engaged till 8:30 p.m. At 8:30 p.m., they reached Ovappally and Dileepan purchased tomato, onion and a packet of biscuits from the shop of one Murali (PW8). Thereafter, he, along with PW2 and Dileepan, proceeded to the house of Dileepan, and they were holding torch lights in their hand. They accompanied Dileepan as there existed a life threat to Dileepan. Initially, all of them proceeded through a pathway which passes near Chakkad mosque and thereafter entered the property of one Hamza so as to go to Dileepan’s house. There was an old toilet in the said property. While they were proceeding to the house of Dileepan through the said property, around 10 to 16 NDF activists suddenly encircled them and attacked Dileepan. Out of the assailants, he had an acquaintance with 5 to 10 assailants. The 1st accused, Latheef, uttered and approached Dileepan with an axe. Then, Dileepan said that “Then the 1st accused replied that and hacked on the head and face of Dileepan using the axe. At that time, Basheer (A7) and Farook(A9) caught hold of Dileepan. Then Siddique (A2) hacked at the leg and shoulder of Dileepan using a sword. At the time when A2 hacked, Dileepan attempted to evade the attack. Then Yakoob (A8) also assisted in restraining Dileepan. A8 was also holding an axe in his hand. Then Dileepan asked him, as well as PW2, to escape. Afraid of the accused, when he, along with PW2, was escaping from the spot and when he turned back, he saw Gafoor (A14) hacking Dileepan with an axe. While running from the spot, Unnais (A4) beat on his as well as PW2’s back with a wooden stick. He witnessed the incident in the torchlight held by him as well as PW2. Apart from that, A3 and A5 were lighting torches from both sides of Dileepan. After escaping from the spot, when he, along with PW2, reached the road near a mosque, they met Prakashan (PW3). When PW3 asked what happened, he told him that NDF activists had hacked Dileepan and requested to save Dileepan. Thereafter, they went to a hospital at Peravoor in an autorickshaw and met a doctor. Both of them were admitted in the said hospital. Then the police came and recorded his statement. Ext.P1 is the said statement. PW1 identified A1 to A9 and A14 before the court. However, in the chief examination itself, PW1 deposed that the names of the other accused were stated by him to the Police as told by others who came to see him in the hospital. When PW1 was confronted with two axes, he identified the same as the weapons used by A14 and A1, and they were marked as MO1 and MO2, respectively. The Lungi, shirt and chappal worn by the deceased Dileepan at the time of the incident were marked as MO3 to MO5, respectively. According to PW1, the murder of Dileepan was a retaliation for the murder of one Sainudheen.

12. The other witness, who allegedly sustained injury in the incident, when examined as PW2, deposed in tune with the evidence given by PW1. Before delving into a detailed discussion regarding the evidence presented by the prosecution to prove the offence, it is significant to consider the evidence of the doctor who conducted autopsy on the body of the deceased Dileepan. The said doctor was examined as PW15, and the post-mortem certificate issued by her was marked as Ext.P7. Referring to Ext.P7 post-mortem certificate, PW15 deposed that it was on 25.08.2008, while she was working as a civil surgeon in General Hospital, Thalassery, that she conducted the post-mortem on the body of Dileepan. According to PW15, in the post-mortem examination, she noted the following ante- mortem injuries.

                  1. Incised wound transversly placed 17x4 cm over the right joint exposing the joint and cutting pattella.

                  2. similar incised wound 16x5 cm transversely placed on the left knee cutting pattella and exposing the joint.

                  3. Incised wound 5x2 cm at index finger exposing fracture carbel boll.

                  4. Abrasion 7 cm long right shoulder.

                  5. Incised wound 13x1 cm very deep obliquely placed on the right cheek extending down to angle of mandible (Jaw borne).

                  6. slanding T shape injury incised wound on the scalp on parattal region of the TH side fracturing skull exposing brain matter. Horizondal injury measures 10 cm directed downwards and latering and vertical limb of T directed laterly and downwards extending upto right eye.

                  7. Incised wound 4x1 cm vertically placed at cheek.

                  8. Incised wound 13x14 cm below chin very deep and transversely place and cutting trachea, oesophagus (trachea means wind pipe, oesophagus means food pipe) upto the anterior ligament of spine.

                  9. Small incised wound 4x2 cm just below and lateral to injury No.8.

                  10. Incised wound 5x4 cm left shoulder exposing borne.

                  11. Abrasion 12 cm long over left shoulder.

                  12. Incised wound 13x6 cm behind left thigh near knee very deep and exposing muscle.

13. PW15 opined that the death was due to head injury and other multiple injuries. Likewise, she added that injuries to the brain and cutting the trachea (injury nos.6 and 8) are fatal injuries ordinarily sufficient to cause death. When PW15 was confronted with MO1 and MO2 weapons, she deposed that injuries nos 6 and 8 could be caused by those weapons. A conjoint reading of the evidence of PW15 and the post-mortem certificate issued by her undoubtedly and convincingly establishes that the death of the deceased was homicidal in nature.

14. It was mainly relying upon the evidence of PW1 and PW2, who were alleged to have sustained injuries in the very same incident, that the prosecution attempted to prove its case. There can be no dispute with the settled legal position that the testimony of an injured witness is ordinarily accorded a special status in law, as such a witness carries an inherent assurance of having been present at the scene and would not normally shield the real assailants in order to falsely implicate innocent persons, in the absence of any motive for false implication.

15. However, in the present case, the appellants are seriously disputing the very presence of PW1 and PW2 at the scene of the occurrence. According to the learned counsels for the appellants, PW1 and PW2 are planted witnesses and were not even present at the place of occurrence at the relevant point of time. It is further contended from the side of the appellants that the injuries alleged sustained by PW1 and PW2 are not connected with the incident in question and are self inflicted one. According to the learned counsels for the appellants, PW1 and PW2 were introduced as witnesses at the instance of the Police under the influence of the ruling party, namely the CPI(M).

16. In order to prove that PW1 and PW2 also were with the deceased at the time of the incident, the prosecution mainly relies upon the evidence of PW3, who allegedly saw PW1 and PW2 immediately after the incident in a panic state, and the evidence of PW8, a shop owner who allegedly witnessed PW1 and PW2 accompanying Dileepan, from his shop immediately prior to the occurrence. Apart from the testimony of PW3 and PW8, the prosecution also relies upon the medical evidence adduced in the case to show that immediately after the incident, PW1 and PW2 had sought medical treatment for the injuries allegedly sustained by them.

17. It is true that, in order to substantiate the prosecution’s case that, after the incident, PW1 and PW2 sought treatment from the Co-operative Hospital, Peravoor, the wound certificates issued from the said hospital were produced and marked as Exts. P27 and P28. The doctor who actually prepared the said certificates was not examined as a witness in this case. Instead, another doctor, who was acquainted with the signature of the doctor who prepared the wound certificates, was examined as PW22. Referring to Exts. P27 and P28, PW22 deposed that on 24.08.2008, both PW1 and PW2 sought medical treatment at the said hospital with an alleged history of assault at 8.30 p.m. at Ovapally. A perusal of Exts. P27 and P28 reveal that Ext. P27 pertains to the examination of PW1, while Ext. P28 pertains to the examination of PW2. In Ext. P27, it is mentioned that an injury was noted on the left lower back of PW1 without giving any description of the said injury and in Ext.P28, it is mentioned that tenderness was noted on the right shoulder region of PW2.

18. However, the above-discussed medical evidence, including the wound certificates, was seriously assailed by the learned counsel for the appellants on the ground that the said evidence was fabricated. The learned counsel pointed out various grounds to disbelieve the authenticity of the medical evidence adduced to show that PW1 and PW2 had also sustained injuries in the very same incident. One of the grounds highlighted on behalf of the appellants was that, the hospital where PW1 and PW2 sought medical treatment is run by a Co-operative Society headed by leaders of the CPI(M), the political party to which the deceased, PW1, and PW2 admittedly belong. Furthermore, it was contended on behalf of the appellants that it is highly suspicious that PW1 and PW2 chose to seek medical treatment from the said hospital, which is admittedly situated about 15 kilometres away from the place of occurrence, when other hospitals were available in the nearby locality.

19. We are also of the view that there are several circumstances giving rise to serious doubt regarding the medical evidence adduced by the prosecution in respect of the medical examination of PW1 and PW2 immediately after the incident. Notably, the date of examination mentioned in Exts. P27 and P28 wound certificates are on 24.08.2008. However, in the very same certificates, it is stated that they were prepared on 07.10.2008. Likewise, the said wound certificates are shown to have been issued on 07.10.2008 and produced before the court only on 16.12.2009. It is highly suspicious that there was such an inordinate delay in the preparation and issuance of the wound certificates, particularly when, in medico-legal cases, wound certificates are usually prepared without much delay from the time of examination of the injured.

20. Another crucial aspect which cannot be ignored is that, during examination before the court, PW22, the doctor categorically deposed that the hospital in question is run by a Co-operative Society functioning under the leadership of the CPI(M). Further, the evidence on record establishes that the hospital is situated approximately 15 kilometres away from the place of occurrence. It has also emerged in evidence that several other hospitals are available within a radius of about 5 kilometres from the scene of occurrence. Even according to the prosecution's case, the deceased was initially taken to a hospital situated within a radius of 5 kilometres from the place of occurrence. In such a situation, the conduct of PW1 and PW2 in travelling a much longer distance, bypassing nearby hospital facilities, appears highly unnatural and suspicious. Therefore, a conjoint reading of the delayed preparation and issuance of the wound certificates, the delayed production of the wound certificate before the court, the political control over the hospital, and the conduct of PW1 and PW2 in opting for a hospital situated 15 kilometres away from the place of occurrence, while skipping other nearby hospitals, makes it apparent that the possibility of manipulation cannot be ruled out.

21. Moreover, referring to Ext. P27 wound certificate, PW22 deposed that the nature of the injury allegedly sustained by PW1 was not mentioned in the said certificate. A perusal of Ext. P27 would reveal that it merely records an “injury on the left lower back.” Curiously, neither the nature nor the size of the alleged injury is specified in Ext. P27. Likewise, with reference to Ext. P28, PW22 deposed that the injury noted in the wound certificate pertaining to PW2 is “tenderness on the right shoulder region.” Notably, during cross-examination, PW22 stated that such an injury could be superficial or even self-inflicted. In that context, it is evident that, even assuming that any injuries were sustained in the incident, the same were only trivial in nature. Therefore, the conduct of PW1 and PW2 in immediately seeking medical treatment for such trivial injuries, while completely ignoring the grievously injured deceased and failing to render any assistance in taking him to a hospital, appears wholly unnatural and contrary to normal human conduct. Consequently, we are of the considered view that it is unsafe to rely solely on the medical evidence adduced in this case to conclude that PW1 and PW2 were present with the deceased at the time of the commission of the alleged offence or that they sustained injuries in the same incident.

22. However, it is significant to note that it is not a case where the prosecution is relying on the above-discussed wound certificates alone to prove the presence of PW1 and PW2 at the crime scene along with the deceased, rather the prosecution had examined two other crucial witnesses to show that PW1 and PW2 were also with the deceased at the time of commission of the offence. PW3 and PW8 are the said witnesses examined by the prosecution to prove the said aspect. Therefore, it is worthwhile to have a look at the testimonies of PW3 and PW8.

23. According to PW3, he resides near the Chakkad Madrasa and was formerly a Grama Panchayat member. On 24.08.2008, at around 9.00 p.m., Raveendran (PW13), who is employed in the Excise Department, telephoned him and informed him that some commotion was taking place inside the property of one Hamza and enquired whether PW3 was aware of the same. PW3 replied that he was unaware of it and disconnected the call. After a short while, PW13 again contacted PW3 and informed him that something serious was happening at the said place and requested him to make enquiries. Thereupon, PW3 proceeded to the place of occurrence. When PW3 reached near the Madrasa, he saw Gireesh (PW1) and Rajan (PW2). PW1 and PW2 then uttered that NDF workers were killing Dileepan, and, uttering so, they ran towards Mayiladumpara Bhagom. However, neither of them disclosed the names of any of the assailants. PW3 then proceeded to the place of occurrence and found Dileepan lying there in a pool of blood. At that time, Nanu (PW4), the uncle of Dileepan, rushed to the scene, and one or two other persons were also present there.

24. PW3 thereafter rushed to his house and attempted to arrange a vehicle by making phone calls. Then he returned to the scene of the occurrence and found PW4, along with one or two other persons, taking the injured Dileepan towards the road. Both legs of Dileepan were found severed and hanging. There was also a grievous hack injury on his neck and injuries on his head. By that time, a Police jeep arrived, and PW3, along with others, took Dileepan to Amala Hospital, Iritty, in the said jeep. From there, Dileepan was shifted to the Co-operative Hospital, Thalassery, for better treatment. Shortly after reaching there, the doctor declared that Dileepan had succumbed to the injuries. According to PW3, when he initially reached the place of occurrence, he saw some persons running away from the spot carrying weapons, but he could not identify them as they were not known to him. PW3 admitted that he was a member of the CPI(M) and was engaged in social work till the death of Dileepan. However, he stated that he discontinued his political activities after the incident in this case.

25. Undisputedly, the main evidence relied upon by the proseuciton to establish that PW1 and PW2 were present with the deceased at the time of the incident is the above evidence of PW3. However, the learned counsel for the appellants strenuously contended that the evidence of PW3 in this regard is unreliable. It was argued that PW3 himself admitted that he was a local-level leader of the CPI(M) and, therefore, he cannot be treated as an impartial witness but is an interested witness. The learned counsel further submitted that the sequence of events narrated by PW3 itself indicates that there was insufficient time for PW3, after receiving information over the phone, to proceed from his house and encounter PW1 and PW2 en route, allegedly uttering that Dileepan had been hacked by NDF workers.

26. While considering the aforesaid contention, it is significant to note that even according to the prosecution's case, PW3 came to know about the incident through PW13 over the telephone, and initially, he did not treat the information as serious. It was only after receiving a second call from PW13 that he decided to proceed to the place of occurrence. Similarly, the evidence of PW13 reveals that he came to know about the incident from one Narayani(PW24), who resides at a distance of about 50 metres from the place of occurrence. PW13 further deposed that Narayani reached his house at around 9.00 p.m. and informed him that she had heard loud cries and seen torchlight at the scene. Thereafter, PW13 attempted to contact Dileepan (the deceased) on his mobile phone three times, but the calls went unanswered. It was only thereafter that he contacted Prakasan (PW3) twice. According to PW13, he then informed the Police over the phone.

27. PW13 further stated that subsequently, he heard a collective loud cry from the place of occurrence, following which one Navaneeth rushed to his house and informed him that Dileepan had been hacked by some persons and requested him to arrange a jeep. PW13 then proceeded towards the road and, upon reaching near the mosque, found the injured Dileepan lying on the lap of one Satheesan. Shortly thereafter, a Police jeep arrived and took Dileepan to the hospital. PW3 and one Kunhambu (PW17) allegedly accompanied the injured to the hospital. PW13 also deposed that he contacted PW3 within five minutes of Narayani informing him about the incident.

28. Likewise, the evidence of PW3 indicates that the first call from PW13 was not taken seriously and that it was only after the second call, made within five minutes of the first call, that PW3 proceeded to the place of occurrence. According to PW3, when he reached near the Chakkad Madrasa, he found PW1 and PW2 coming towards him in a state of panic.

29. Thus, for PW3 to have seen PW1 and PW2 immediately after the occurrence, the entire sequence of events, namely Narayani informing PW13, PW13 making three unsuccessful phone calls to the deceased, PW13 making two phone calls to PW3, and PW3 proceeding to the scene, must have taken place in rapid succession. Given the time necessarily consumed by these events, such a version appears highly improbable, particularly when the prosecution's case itself is that PW1 and PW2 escaped from the scene immediately at the inception of the incident.

30. Moreover, although PW13 deposed that he saw Dileepan lying injured on the lap of one Satheesan when he reached the road, the said Satheesan was not examined as a witness. That apart, during cross-examination, PW13 admitted that in his statement to the police, he had not stated that he saw Prakasan (PW3) at the road or that Prakasan accompanied the injured to the hospital. Therefore, even the presence of PW3 near the Madrasa immediately after the incident becomes doubtful.

31. Apart from the above, PW3 deposed that when he reached near the Chakkad Madrasa, he saw PW1 and PW2 running in panic and shouting that NDF workers were killing Dileepan. However, PW3 has no case that PW1 and PW2 stopped upon seeing him or sought his assistance to take the injured to the hospital. Likewise, PW1 and PW2 also do not claim that they stopped and assisted in taking the injured to the hospital. Such conduct is highly unnatural and contrary to ordinary human behaviour, especially when the prosecution case is that PW1 and PW2 were accompanying Dileepan due to the threat he was facing from NDF workers. In the normal course of human conduct, they would have stopped and rendered assistance. Therefore, the testimony of PW3 that he saw PW1 and PW2 immediately after the incident cannot be believed. In a recent judgment in Nimai Ghosh v. State of Bihar (now Jharkhand) - [2025 SCC Online SC 2337], the court observed that in cases where an eye-witness to an incident takes no steps whatsoever to save the life of the deceased and leaves the place of the incident wihout furnishing any information to the Police or intimating the relatives or friends of the deceased, then his conduct cannot be seen as that of a normal human being, and his conduct would be relevant fact while testing his evidence for credibility.

32. The prosecution further relies on the testimony of PW8 to establish that immediately prior to the incident, PW1 and PW2 were in the company of the deceased. PW8 deposed that on the date of the incident, at about 8:15 p.m., Dileepan came to his provision-cum-tea shop at Ovapally along with Rajan (PW2) and another person. According to PW8, after purchasing certain items, Dileepan left the shop at around 8:30 p.m., accompanied by PW2 and the said other person.

33. However, this evidence is insufficient to establish the presence of PW1 and PW2 at the place of occurrence. As evident from the testimony of PW8, the place called Mayiladumpara is situated about 750 metres from his shop, and from Mayiladumpara, there is another distance of approximately 750 metres to Chakkad Juma Masjid. Thus, there is a total distance of nearly 1½ kilometres between PW8’s shop and the place of occurrence. In these circumstances, the possibility of PW1 and PW2 parting ways with the deceased before reaching the place of occurrence cannot be ruled out. Consequently, the feeble evidence of PW8 alone is insufficient to conclusively establish the presence of PW1 and PW2 at the place of occurrence along with the deceased.

34. As already stated, it was based on Ext.P1 statement given by PW1 that the present case was registered and the investigation was started. Curiously, in Ext.P1 statement, the names of all assailants, more particularly all the 16 accused, were clearly mentioned along with their respective parentage. While appreciating this aspect, it cannot be lost sight of that from the very inception, the defence has consistently contended that the names of assailants were incorporated in the FIR on the basis of a list allegedly supplied by the leaders of CPI(M), a political party to which PW1 and PW2, as well as the deceased Dileepan, were affiliated. In that context, the detailed mention of the names of all the accused, along with their parantage assume significance and creates a certain amount of doubt in the mind of this Court.

35. Notably, when PW1 was examined before the court, he deposed that he had stated the names of ten accused in his statement on the basis of his own knowledge, whereas the names of the remaining six persons were furnished on the basis of the information given to him by those who came to the hospital after the incident. This version given by PW1 would indicate that, before the lodging of FIS, there occurred some consultations and deliberations in the hospital. In such circumstances, the possibility projected by the defence that the names of all accused were incorporated after due deliberations cannot be brushed aside. Moreover, though PW1 deposed that, names of some of the accused were mentioned by him in the statement given to the police based on the information given by those who came to the hospital, during cross-examination, he stated that at the time when his statement was recorded by the police, he had not stated the said fact to the police.

36. Likewise, during the chief examination, PW1 had deposed about the overt acts committed by some of the accused and about the weapons used by them. PW1 deposed that the 1st accused hacked on the head and face of Dileepan using the MO2 axe, and at that time, Basheer(A7) and Farook(A9) were catching hold of Dileepan. Then Sidique (A2) hacked at the leg and shoulder of Dileepan using a sword. At the time when A2 hacked, Dileepan attempted to evade the attack. Then Yakoob(A8) also assisted in restraining Dileepan. A8 was also holding an axe in his hand. Then Dileepan asked him, as well as PW2, to escape.

                  Afraid of the accused, when he, along with PW2, was about to escape from the spot and when he turned back, he saw Gafoor(A14) hacking Dileepan with the MO1 axe. While they attempted to rescue by running from the spot, Unnais(A4) beat on his as well as PW2’s back with a wooden stick. Moreover, PW1 deposed that during the incident, A3 and A5 were lighting torches from both sides of Dileepan.

37. However, during cross-examination, PW1 deposed that he does not remember whether he had stated to the police that A7 and A9 were catching hold of Dileepan while A1 hacked him. PW20, the police officer who recorded Ext.P1 statement, and PW21, the investigating officer, admitted that PW1 had not stated so in his statement to the police. Likewise, PW1 admitted that he had failed to state before the police that A8 was holding an axe in his hand and that A8 had wrongfully restrained Dileepan. The said omission stands proved through the evidence of PW20, who recorded the statement of PW1. Further, from the evidence of the investigating officer, it is established that at the time of recording PW1’s statement, PW1 had not stated that while attempting to escape from the spot and on turning back, he saw A14 hacking Dileepan with an axe. Likewise, from the evidence of the investigating officer, it is proved that PW1 had not stated to the police that A3 and A5 were lighting torches from either side of Dileepan.

38. Notably, the testimony of PW2 is also marred by lot of improvements. Although during the chief examination, PW2 deposed that he saw A14 holding an axe in his hand, PW21 categorically stated that no such statement was given by PW2 to the police. Likewise, during the chief examination, PW2 deposed that while he was running away from the spot, A4 beat him on his back. However, PW21 admitted that PW2 had not stated this fact to the police. Moreover, PW21 deposed that PW2 had not stated before the police that A7, A8, and A9 had caught hold of Dileepan. Similarly, PW21 further deposed that PW2 had not stated to the police that A3 and A5 were lighting torches towards Dileepan at the time of the incident.

39. We are not oblivious to the fact that when there are several assailants and numerous injuries are inflicted, it may not be possible for a witness to give a videographic or minute account of the incident to the police with respect to each and every overt act. Therefore, minor omissions in the statement given to the police may not, by themselves, be of serious consequence. However, when the very presence of PW1 and PW2 at the scene of occurrence is under challenge, such omissions relating to material and serious aspects of the incident assume significance and have to be considered in conjunction with other attendant circumstances, which probabilise the defence case that PW1 and PW2 were, in fact, not present at the scene of crime at the time of commission of the offence.

40. Before parting with the case, it is apposite to advert to the serious lapses in the investigation. The prosecution's case is that, after the commission of the offence, the assailants escaped from near the place of occurrence in a blue-coloured jeep bearing Registration No. KL-11-C-7927.

41. The evidence of PW9 reveals that, on the alleged date of the incident, after 9.00 p.m., while he was walking to his house along with one Gangadharan from the shop of Abdul Rahiman, he saw a blue- coloured jeep approaching at a frantic speed. He claims to have seen accused Nos. 1, 3, 6, and 16 inside the jeep, all of whom appeared to be in a belligerent mood. According to PW9, when he later reached near the mosque, he found Dileepan lying on the lap of Satheesan with several grievous injuries. Soon thereafter, a police jeep arrived, and Dileepan was taken to the hospital. Similarly, the evidence of PW13 indicates that, upon coming to the road after learning about the incident, he too saw a blue- coloured jeep proceeding at high speed.

42. Notably, when the Investigating Officer was examined as PW21, he deposed that, in the course of the investigation, it was revealed that the said jeep belonged to one Bushara, the sister of Sajeer. The said jeep was also taken into custody as part of the investigation. However, it is surprising that the RC particulars of the jeep were not obtained from the Motor Vehicle Department, and that Bushara, along with her brother Sajeer, were not cited or examined as witnesses by the prosecution. PW21, the Investigating Officer, admitted that he did not interrogate Bushara or Sajeer as part of the investigation. Had the owner of the vehicle been examined, such evidence could have been vital and crucial to the prosecution's case. Such a lapse cannot be viewed lightly. The failure of the investigating Officer to record the statements of these material witnesses has, in fact, afforded the defence an opportunity to contend that their examination would have been favourable to the accused and would have assisted in establishing their innocence.

43. Furthermore, the case of PW21, the Investigating Officer is that MO2 axe was recovered on the basis of a disclosure statement given by the first accused. As evident from Ext. P10 recovery mahazar, the said recovery was effected on 28.04.2009. Likewise, MO1 axe, the weapon allegedly used by A14, was recovered on the strength of a disclosure statement allegedly given by A14 on 03.01.2009. The inordinate delay in effecting the recoveries of the weapons casts grave doubt on the genuineness and reliability of the recovery proceedings.

44. Moreover, the attestors to the recovery mahazars admitted their political affiliation. PW18, an attestor to the recovery mahazar pertaining to MO2 axe, admitted that he is the Local Secretary of CPI(M), Kakkengad and that he resides about 3 kilometres away from the place of recovery. He further admitted that he is an accused in another case, which alleges that he, along with other CPI(M) workers, trespassed into the house of certain BJP–RSS workers and committed mischief by setting the house on fire and destroying agricultural crops. Likewise, PW17, an attestor to Ext. P9 recovery mahazar prepared in connection with the recovery of MO1 axe allegedly used by A14, admitted that he also resides about 3 kilometres away from the place of recovery. According to PW17, he is a relative of Gangadharan(PW10), who is a CPI(M) Branch Secretary, Chakkad and also belongs to the same party as that of the deceased. Therefore, the delayed recoveries, coupled with the political affiliation of the recovery witnesses, who admittedly reside far away from the place of recovery, cast serious doubt on the reliability of the recovery evidence adduced in this case. The same also casts a serious shadow on the fairness and credibility of the investigation.

45. Apart from the attestors of the recovery mahazar, it is also not in dispute that all other material witnesses cited by the prosecution and examined before the court belong to CPI(M) political party. It is well settled that merely because a witness belongs to the same political party as the deceased, or is in inimical to the accused, his evidence cannot be discarded outright. However, where the entire prosecution case rests exclusively on the testimony of witnesses belonging to one political fraction, the court is duty bound to subject such evidence to strict and cautious scrutiny. In such circumstances, the prosecution is expected to place before the court independent corroborative material lending assurance to the partisan version.

46. In the present case, defence has raised a specific allegation that the names of the accused were supplied by CPI(M) leaders owing to political rivalry and that the names were mechanically incorporated in the FIR. Therefore, the absence of independent witnesses coupled with the fact that all the witnesses examined are politically aligned with the deceased creats a reasonable apprehension that the investigation lacked fairness. In cases arising out of political rivalry, the possibility of false implication of opponents cannot be ruled out and the prosecution evidence must be of unimpeachable quality. In the present case, even the presence of the witnesses who allegedly witnessed the occurrence and sustained injuries itself is in doubt for the reasons which we have detailed above and hence, their evidence cannot be acted upon in the absence of other independent corroborative piece of evidence.

47. We have already found that the wound certificates relating to the examination of PW1 and PW2 were prepared and issued only on 07.10.2008, that is, about one and a half months after the incident. Notably, the said certificates reached the court only on 16.12.2009. The delayed collection of the said wound certificates by the Investigating Officer and their belated production before the Court also afforded the defence an opportunity to allege manipulation and to challenge even the presence of PW1 and PW2 at the scene of the crime, along with the deceased.

48. We are not oblivious to the settled legal principle that mere lapses or defects in investigation, or even a faulty investigation, by themselves do not constitute a ground for acquittal. Courts are required to independently evaluate the evidence on record and determine whether the prosecution has otherwise succeeded in establishing the guilt of the accused beyond reasonable doubt. However, such lapses can be ignored only when there exists clear and convincing evidence to prove the guilt of the accused. In the present case, on an overall appreciation of the evidence adduced by the prosecution, this Court finds that there is no such convincing or trustworthy evidence to establish the guilt of the accused beyond reasonable doubt. Therefore, the serious lapses in the investigation cannot be brushed aside as inconsequential.

                  In the result, Crl.A. Nos. 409/2019 and 399/2019 are allowed. The impugned judgment of conviction and order of sentence in S.C. No. 3/2012 on the file of the Additional Sessions Court-III, Thalassery, passed against the appellants, are set aside, and they are acquitted. Accused Nos. 1, 2, 3, 4, 5, 7, 8, 9, and 14 shall be set at liberty forthwith from the prison concerned, if their continued detention is not required in connection with any other case. The Registry shall communicate this judgment forthwith to the concerned Jail Superintendent, where the appellants are undergoing incarceration.