# [1973] 2 S.C.R. 16

- **Citation:** [1973] 2 S.C.R. 16
- **Court:** Supreme Court of India
- **Decided:** 1970-12-12
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1973-2-s-c-r-16-5770
- **Pages:** 24

## Headnote

ie
APREN JOSEPH A.LIAS CURRENT KUNJUKUNJU &: ORS.
A
v.
Tim STATB. OF KBRALA
September l, 1972
{J. M. SHELAT, ACTING C.J., I. D. DUA, AND H. R. KHANNA, II.]
InditJn PtN.:l Codt-S. 302 rtad wth S. 148 imd 149-Mwdtr-EI«t
of btlattd F.I.R. wlrtn fatal.
ln Cr. A. No. 263 of 1971, accused Nos. 6 to 1~ were acquitted by
the trial_ Court but the High Court reversed the order of acquittal and
convicted them under S. 302/149 and 148 of I.P.C. In Cr. A •. No.~ 300
of 1971, accused Nos. 1 to 5 were convicted under S. 302/148 J.P.C. b7.
both the Courts below.
The alleged occurrence gh·ing rise to the prosecution of the appellants
took place on the night be! ween· December 13 and 14 at about 2 a.m. as
a result of political animosity between two groups of peoplo-the Marxists
and the agriculturists called the "Karshak Sangham", in Puthupally village
in Kottayam, Ker6la. 'The eye-witnesses, for fear of retaliation, did not
rep(!rt the crim~·to.the police.
Only on the next day, a member of the
1~1 panc~ayat (P.W 2), lodged :t~e F.I.R. at 8 A.M. at Kottayam East
Pollee Stallon, 9 JCM. away from the place of occurrence.
Before this Court, tile 'following points were raised on behalf of the
appellants :-(i) that the first information report i! highly belated and
(ii) that the alleged eye-witnesses did not lodge the c:omplaint' becauae
they h;~d in fact not w:tnessed the oc;curre'lce, and the accused have been
falsely implicated.
Partly allowing the app~al,
HELD : ('i) The Fir: t Information Report relating to the commissior.t
elf an offence is not a condition precedent to the setting in motion of II'
~rim!nal investigation. [23 C]
R. V. Khwaja, I.L.R. [1945] Lah. I, re'ferred to.
Nor does the statute provide· that such informatiOn r.:port can ooJy
be made by 2.'1 eye-w:tness.
F.I.R. is not even considered a substantive
piece of evidence.
It can only be used to corroborate or c:ootradict tbe
informants' evidence in court.
But this information ·when recorded
is the basis of the case set up by the informant.
It is very useful it
recorded before there is time and opportunity to embeUisb, or before the
informants' memory fades.
Undue or unreasonable .delay lodging the F.I.R., therefore, give. rise
to suspicion which put the Court on guard to look for the possible motive
and the explanation for the delay and consider its effect on the trustworthj..
ness of the prosecution ve~ion. No duration of time in the abstract can
be fixed a< reasonably for giving information of a crime to the police, the
question of reasonable time being a matter foe determ·inatioa by the court
. in each case. [23 E)
(ii) In the pre~Cnt case, the eye-witnesses were tiraid to go to cbt
police station during night time and their evidence could Dot be shabcl
in cros~amination.
Keeping 'in view the local tense atmosphere aod
the effect of the ghastly murder on the eye-witnesses, their strong· di!inclication to go and lodge the repott ·during the night after the alltged
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• ·• · ·· . APREN JOSEPH l'. KERAL.\ ·
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o~c_urrcnce, which seems ~uitc nOJ·m;~l, cannot by itself arouse any suspiCIOn about the prosecution case.
Further, the prosecution version -as
a whole, has al!>o been :1ccepted by both the Courts below for rea~ons
which cannot be said to he uns<.HtnJ or implausible.
Therefore, the:
Jclay in m:~king the F.l.R. hao; rt..~~o:1ahly been expl:1inecl by the prosecvtion wit nesscs.
(iii) Tt is not &·putcd and inth:eu r-Oth the Courts below have found
that on December 12, 1970, there was full moon, aod as such, there was
moon-light at the time · of the occurrence. The ne:lrest street light wa•
ahout 130 ft. away t-ow-:~ rds the \'.C';t and th::
n-:ar~st electric post on
the eastern side was ;:.bout 90 ft. tm ay from the place of occurrence.
The light of the lorry, which was :.1< the pbc.:, :!:;o hcli)cJ -.yc witnes~cs
to clearly !.C.:: who the assailants were. Th.:: C"licurrc:-ot c ~ :lc!c! :;)n of the
tl'lo Courts below leaves no doubt that the witness

## Text

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ie
APREN JOSEPH A.LIAS CURRENT KUNJUKUNJU &: ORS.
A
v.
Tim STATB. OF KBRALA
September l, 1972
{J. M. SHELAT, ACTING C.J., I. D. DUA, AND H. R. KHANNA, II.]
InditJn PtN.:l Codt-S. 302 rtad wth S. 148 imd 149-Mwdtr-EI«t
of btlattd F.I.R. wlrtn fatal.
ln Cr. A. No. 263 of 1971, accused Nos. 6 to 1~ were acquitted by
the trial_ Court but the High Court reversed the order of acquittal and
convicted them under S. 302/149 and 148 of I.P.C. In Cr. A •. No.~ 300
of 1971, accused Nos. 1 to 5 were convicted under S. 302/148 J.P.C. b7.
both the Courts below.
The alleged occurrence gh·ing rise to the prosecution of the appellants
took place on the night be! ween· December 13 and 14 at about 2 a.m. as
a result of political animosity between two groups of peoplo-the Marxists
and the agriculturists called the "Karshak Sangham", in Puthupally village
in Kottayam, Ker6la. 'The eye-witnesses, for fear of retaliation, did not
rep(!rt the crim~·to.the police.
Only on the next day, a member of the
1~1 panc~ayat (P.W 2), lodged :t~e F.I.R. at 8 A.M. at Kottayam East
Pollee Stallon, 9 JCM. away from the place of occurrence.
Before this Court, tile 'following points were raised on behalf of the
appellants :-(i) that the first information report i! highly belated and
(ii) that the alleged eye-witnesses did not lodge the c:omplaint' becauae
they h;~d in fact not w:tnessed the oc;curre'lce, and the accused have been
falsely implicated.
Partly allowing the app~al,
HELD : ('i) The Fir: t Information Report relating to the commissior.t
elf an offence is not a condition precedent to the setting in motion of II'
~rim!nal investigation. [23 C]
R. V. Khwaja, I.L.R. [1945] Lah. I, re'ferred to.
Nor does the statute provide· that such informatiOn r.:port can ooJy
be made by 2.'1 eye-w:tness.
F.I.R. is not even considered a substantive
piece of evidence.
It can only be used to corroborate or c:ootradict tbe
informants' evidence in court.
But this information ·when recorded
is the basis of the case set up by the informant.
It is very useful it
recorded before there is time and opportunity to embeUisb, or before the
informants' memory fades.
Undue or unreasonable .delay lodging the F.I.R., therefore, give. rise
to suspicion which put the Court on guard to look for the possible motive
and the explanation for the delay and consider its effect on the trustworthj..
ness of the prosecution ve~ion. No duration of time in the abstract can
be fixed a< reasonably for giving information of a crime to the police, the
question of reasonable time being a matter foe determ·inatioa by the court
. in each case. [23 E)
(ii) In the pre~Cnt case, the eye-witnesses were tiraid to go to cbt
police station during night time and their evidence could Dot be shabcl
in cros~amination.
Keeping 'in view the local tense atmosphere aod
the effect of the ghastly murder on the eye-witnesses, their strong· di!inclication to go and lodge the repott ·during the night after the alltged
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• ·• · ·· . APREN JOSEPH l'. KERAL.\ ·
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o~c_urrcnce, which seems ~uitc nOJ·m;~l, cannot by itself arouse any suspiCIOn about the prosecution case.
Further, the prosecution version -as
a whole, has al!>o been :1ccepted by both the Courts below for rea~ons
which cannot be said to he uns<.HtnJ or implausible.
Therefore, the:
Jclay in m:~king the F.l.R. hao; rt..~~o:1ahly been expl:1inecl by the prosecvtion wit nesscs.
(iii) Tt is not &·putcd and inth:eu r-Oth the Courts below have found
that on December 12, 1970, there was full moon, aod as such, there was
moon-light at the time · of the occurrence. The ne:lrest street light wa•
ahout 130 ft. away t-ow-:~ rds the \'.C';t and th::
n-:ar~st electric post on
the eastern side was ;:.bout 90 ft. tm ay from the place of occurrence.
The light of the lorry, which was :.1< the pbc.:, :!:;o hcli)cJ -.yc witnes~cs
to clearly !.C.:: who the assailants were. Th.:: C"licurrc:-ot c ~ :lc!c! :;)n of the
tl'lo Courts below leaves no doubt that the witnesses prc-;r.nt r.• the place
of occurrence were in a p0sition to ch::ar!y t;cc a'"~d identify the acc\L<;eJ
pcnons "ho \\"ere not strangers to them.
Th.:rdon::. conviction of accus-:<.1 No;. I to 5 under S. 30:! 1. P.C. anJ S. 14S i~ uphclJ as also the
•.cntcncc under S. 148 I.P.C.
Accused No. 6 h~s also h:en rightly founJ
guilty and his sentence is ulso confirmt!J.
(iv) As regards ac'q1~.::J No'i. 7 to 10. they llid not form an unlawful assembly with the common ohjcct l,f 1-.illing the d..:ccascd.
Thcrdorc,
they arc acquitted.
Khanna 1. !Jiuentins:)
He~J ( iJ From the c\:u.::nc-: on record it
wus Jifficul! to subscribe to -the view th~~ the \\ itnc;;o;cs refrained from
reporting the muller to the pulicc ~oon aft'!r the occurrence because of fear.
The witn.:":·"> h;.J not got nto th:: lorry while the acc\Jscd were on foot.
It would nut have t:1kcn the lorry more than t5 or :o minutes to rc:-tcb
the police ~t;:.t"on.
Further, it cannot he said that the witnesses were not
conscious cf t!l.: necessity of informing th~ pollee about the occurrc1cc.
(ii) E\"Cn if the witnesses wcr~ afr:J.id h) go to the police station . in
the ni~ht, they t~ould h·Jvc gonl.l to thc station in the morning because
they did not remain confined in thdr homcc;; hut were mavin~ nbout and
go to difTu~·ot places on the ftlllowing morning, there is no !atisfactory
explanation as to why they diJ not ~o to the police station anJ make a
report. Their f;Jilurc to report to the police the follo\-\-ing day, creates
<.-on~iJ.:r;~bJc doubts ubout the veracity of their evidence.
Tlwli!. Kali v. St<ll<' t~/ Tamil Nadu, Cr. A. 165/71 decided on Fcbni- .
ary :!5, 1972. rl'fcrrcJ to .
. (iii) Further, the pro>ccution evidence is of a partis:m character.
(iv) Thl.' cir~
1unhlaflCC\ of tho.:
ca~c tend hl ~how that the dccea~cd
1':." l..ilkd ;,r a Iilli! hour durin!! the nig.ht Pl'hl~n O.:cembcr 13 :1nd 14,
I 'J70 y, h.:n he wa' coming twm a place \\here h..: haJ taken toddy. The
f:u;t th:tt no rcpo1 t 11 ·'' ltlJ~cJ with the polic.: llurin~; the night and no
IHlC '>'cr.t t•' the 1illa~~: or r;1twd •• hu~ anJ cry kmls to show that no on.:
\I:J' pr.:>~n t alnng \1 ith tho.' J.:c.:<ht..'<l >II th;ll tim!!.
Therefore, it i~ Ol1t
po"'hlo.: r·.> ,tl'>l;1in th.: Cllllvktit1:l of the r..ccu.;.:u appellants on the e\'iu-
~·~~~·\! :1ddt•c,•d in th,; ~;;,:.
CIU\f!S.\L AI'I'FLLAlF JlllUSDICTIO~: Crimin:.tl ,\ppe:lls 't\'~h.
~OfJ ~tnJ 263 of 1971 .
Ai'r~:tl-.; from the jud~m.:nt and on.l.:r JatcJ Augu-.t ~-+. t lJ71
1'f th.: !:..:r;1L Ili~2h Court in Criminal 1\tmcals Nos. ! 6h ltl ! 6S
::nJ R. T. "\'~'. 15 of 1971 an•.l Cr. A r-.:ll. 25 !0171.
18
[1973) 2 s.c.a.
A. S. R. Chari, N. Sudhakaran and P. Kesava Pillai, for the
appellants. (in both the appeals).
V. A. Seivid Muhmud and M. R. Krishna Pillai, for the res~
pondenr (in Cr. A. No. 263/71).
V. A. S('iyid Mulmuui and A. G. Pudissery, for respondent (in
A
Cr. A No. 300/71).
1S
The Judgment of Shelat, Acting C.J. and Dua, J. was delivered
by Dua, J. Kb.uma. J. delivered a dissenting opinion.
DuA, J.-The.~~ are two appeals (Crl. A.-no. 263 of 1971 and
Crl. A. no. 300 of 1971) against a common judgment of the
Kerala High Court disposin~ of four appeals (3 separate appeals
'by accused nos. 1 :o 5 ctmvicted by the Additional Sessions Judge,
Kottayam and one appeal by the State against the acquittal of
accused nos. 6 w I 0) affirming the conviction and sentence of
accused nos;, 1 to ~ and reversing lhc order of acquittal of accused
nos. 6 to 10, convicting them under ss. 302/149, I.P.C. as also
under s. 148, I.P.C. Accuscct nos. 1 to 5 have been sentenced
to death by both the trial court and the High Court under s. 302.
I.P.C. and to rigorous imprisonment for one year under s. 148.
t.P.C. whereas accused nos. 6 to 10 have been sentenced to imprisonment for life by the High Court under s. 302/149~ I.P.C.
and to rigo!"ous imprisonment for one year under ·s. 148, I.P.C.
All the ten accused persons have appealed to this Court and they
arc:
I. Apren Joseph alias Current Kunjukunju,
2. Kochukunju Vasu alias Thankappan,
3. Velu Damodaran,
4. Kt:savan Kumaran alias Kochu,
5. 'Cherian Mathew aUas Scaria.
6. Mundan Poulose alias Baby.
7. Yohannan Pothan alias Kochu.
8. Gangadiuiran Bhaskaran.
9. Kutty Chellappan alias Jruttu.
10. Kunchan ~ukumaran.
This is also the order in which these ten persons appeared as
accused in the trial.
Criminal Appeal No. 263 of 1971 has been presented to this
Court under s. 2(a) of the Supreme Court (Enlargement of Criminal Appeal Jurisdiction) Act, no. 28 of 1970 by accused nos.
6 to 10 whose acquittal by the trial court was reversed by the
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High Comt on appeal by the State Criminal Appeal No. 300 of
1971 under Art. 136 of the Constitution has been presented by
accused nos. 1 to 5.
The alleged occurrence giving rise to the prosecution of the
appellants took place at abPut 1 O'clock on the night between
December 13 and 14, 1970 at a place on Manarkad-Tenganal
road on the southern side of Kalappurakat dispensary of Baby in
Puthupal!y village in Kottayam. The occurrence is stated to be
tbc result of political animosity between the members of the
~larxht party and the members of an organisation of agriculturists
called "Karshak Sangham" at Puthupally ef which the deceased
Kuru\i1!a was the Vice-President.
On the evening of December 13, there was a meeting of the
K:w.haka Sangham near the Puthupally junction and it was over
~~t about 10-30 p.m.
After attending the. meeting (Pappu)
Joseph (P.W. 1) and Joseph Cheriaa (P.W. 4) along with one
Baby started for going home.
Kuruvilla who met them at the
Puthupully junction requested them to accompany him to the
house of Yesu Kathanar (Christian priest) (P.W. 5) which was
on the western side of Puthupally junclion. They readily agreed
with the result they all went together to the house of the priest
along the Manarkad-Thcnganat road. That road runs east to
west.
While Puthupally junction is on the eastern side Eramallur
junction is on the western side of this road. In order to reach
the house of the priest one has. to go through Eramallur junction.
After KuruvilJa had a talk with P.W. 5 and when they were .
returning through the same route, at the place of occurrence
which is about 7 furlongs <lway from the house of P.W. 5 they
met Mathayikutty (Mathayi) (P.W. 3) driving a lorry and coming
from the opposite direction. On seeing them P.W. 3 stopped his
lorry. One Achankunju was also in the lorry with P.W. 3. After
~topping the lorry P.W. 3 told these four persons
~hat accu»N
no. 2 and others were coming that way armed with deadly
weapons. r. W, 3 accordingly asked these lour persons not to
proceed towards Puthupally junction. at thl! same time offering to
take them in his lorry. Dy the time this conversation was over
the accused had alreaJy reached the seen~ of occurrence. As soon
4lS they arrived there accused no. 1 Apren Joseph struck a blow
with his chopper on Kuruvilla's hi!au. Kuruvilla tried to ward it
off with his right hand but WJS not successful.
Accused nos. 2
and 3 (Kochukunju Vasu and Velu Damodaran) who had choppers in their hands also gave blows with their respective weapons
on the back of Kuruvilla's head. This was followed by the fin.t
accused giving two more blows at Kuruvilla's right shoulder.
TI1~
fourth accused Kesavan Kumaran stabbed Kuruvilla on his back
with Mallapuram knife. The fifth accused Cheri:m Mathew alsQ
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SUPREME COURT REPORTS
[1973)2 S.C.R.
struck Kuruvilla thrice with an iron rod on his chest, Kuruvilla
fell down and died after sometime. P.Ws 1 and 4 and Baby
managed to. get into the lorry when Kuruvilla was ~ing beaten
though while doing so they implored the accused persons not to
kill Kuruvilla.
However, P.W. 3 with the three men who got
into the lorry at the place of occurrence (P.Ws I and 4 and Baby)
and Achankunju who was already in the lorry drove away towards
the west.
The sixth accused Mundan .Poulose hit him with a
wooden spear. As the lorry started moving, the accused pelted
stones at it.
After dropping Achankunju at Eramaloor junction
Mathayi (P.W. 3) took P.Ws 1 and 4 and Baby Jto the house ·of
P.W. 5 and dropped them there. Thereafter P.W. 3 went to his
own house.
On account of fear he, however, did not go back
towards his home by the same road but took a different route.
Early on the morning of December 14, 1.970 Markose_ ~anL
(P.W. 2) who is a member of the local Panchaya1 came ·to know
of Kuruvilla's dea.th. He went to the scene of the occurrence and
saw the dead body of the deceased. After getting whatever .information he could gather there he went to Kottayam East police
station, 9 k.m. away, and lodged the first information report. (Ex.
P-1) at about 8 a.m.
According to this -report Markose Mani
,came to know of Kuruvilla's death at about 5 O'clock early in
the morning of December J 4, 1970. Having gone to the spot he
saw the dead body of the deceased.
He noticed that the 1ittle
linger of the right hand of the deceased had been cut off and the
ring finger was hanging due to a cut.
There were also cut in·
juries on the back of the head of the deceased.
After stating
what he had seen the informant proceeded to state :
" ..... There was a meeting and· procession of
farmers at the Puthupally junction yesterday. The meet~
ing was over at 10-30 in the night.
Deceased Kunju
Kalappurakkal Baby, Padinjarekoothu Pappa, Inchalk~
kad Kochu and some others had gone from Puthupally
to take back the persons who had come from Eramallur
for the procession. What I came to know is that while
they were returning afte.r getting down the persons who
had tor the procession at Kochalum Moodu somE l:x>dy
killed him by inflicting cut injudes· at about 2 O'clock
in the night at the place where the dead body lay. It
is heard that Acbankala Vaslu, Valia Veettil Pothan.
·current Kunju Kunju, Carpenter Damodaran, Inchakad
Bhaskaran and some others b~longing to the Marxist
party who are opponents . of the faqners had followed
. the persons who had gone to Eramallur after the meetat Puthupally held on yesterday and while Kunju etc.,
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APREN JOSEPH v. KERALA (Dua, J.)
were returning from
Kochalummoodu.
Somebody
among them killed Kunju by inflicting cut injuries at
that place by attacking him. The dead body of Kunju
is lying there. I am the member of the IV Ward in
Puthupally Panchayat. I have come over here to report
the matter. The place of occurrence is 9 k.m. away
towards south-east from here ... , .• ,
:n
The Additional Sessions Judge trying the case found accused
nos. 1 to 5 guiHy of an offence under s. 302, I.P.C. and sentenced
them to death. They were also found guilty of an offence under
s. 148, I.P.C. and sentenced to rigorous imprisonment for one
year each.
Accu!,ed nos. 6 to 10 were, however, acquitted of
all the charges, reliance for the order of acquittal having been
placed on a decision of this Court in Ma.mlti etc. v. State of Uttar
Ptadesh ( L).
The convicted persons and the State, both appealed to the
High Court of Kerala. The High Court, in a fairly exhaustive
judgment, affirmed the convictions and sentences of accused nos.
1 to 5 and dismissed their appeals. The reference in regard to
their death sentence was accepted. The State appeal against the
acquittal of accused nos. 6 to 10 was allowed and their acquittal
set aside. They were sentenced to imprisonment for life under
s. 302/149, I.P.C. and to rigorous imprisonment for one year
under s. 148. I.P.C.
The sixth accused was also sentenced to
rigorous imprisonment for one year under s. 324, I.P.C. for eaus~
ing injury (an incised wound) with a wooden spear to Joseph
Cherian (P.W. 4).
Before us it was strongly t:rged by Shri Chari on behalf of
the appellants that -lhG first information report was lodged afteJ:
a very long delay any this in the drcumstnnces of the case is
fatal to the prosecution. The submission most seriously pressed.
and this appears to us to be the basic subcrnission which is sought
to be supported by reference to other faotors. is that- no one had
actually witness~d the occurrence and that the v.·hole of the prosecution story has been fabricated with the object of falsely im·
plicating all the accused persons, who are enemies of the· prosecution witnesses.
The story invented by the prosecution, it was
argued, is the work of a highly imaginative and fertile brain. The
first jnfonnation report, contended Shri Chari in his usual forceful manner, was lodged after a long delay because a plausible
story had to be built up .involving the accused so as to fit in with
the murder of the deceased at the place where his dead body was
found. and this, emphasised the counsel. was the real cause for
II) [l%4j 8 S.C.R. n~.
22
SUPREME COURT REPORTS
[1973] 2 S.C.R.
not l?dgin_g the report immediately after the alleged occurrence.
The mterval between 'the alleged occurrence and the time when
the prosecution story was unfolded to the police was, according
to the submission, uti1ised in inventing the story to be placed
before the police.
Now if this argument is accepted then obviously the prosecution story has to be rejected and all the appellants acquitted. We
have, therefore, to seriously examine the challen~e to the proiecution story on the basis of the argument that the first information report is highly belated and that the alleged eye witnesses did
not lodge it because they had in fact nCl't witnessed the occurrence.
It may be pointed out that the factum of the unnatural death
of the deceased by violence at the place where his dead body was
found is not disputed; nor has the time of his death been controverted. The sole argument vehemently pressed upon .us is, that
no one saw the deceased b~ing murdered and the accused ha Je
been falsely implicated, on account of enmity, by the prosecution
witnesses who have deposed to an imaginary story concocted by
<them. There is of course no dispute that there was considerable
ill-will between the workers of the Marxist party in the local
Puthupalli area and the members "of the Krishak Sangham.
fndeed, even according to the accused, there had been a quarrel
between these two groups about 20 days prior to the occurrence
in dispU'te.
Some of the accused persons were involved :in other
criminal cases as well. But enmity as is well-known is a double·
. edged weapon.
Whereas the accused may rely on it in support
of their plea of false implication, the prosecution on the 'other
har.d may legitimately argue that this provided the necessary
motive for ~the offence. It is that none of the persons who claim
to have been with the deceased since ·about 10-30 p.m. right
up to the time of occurrence informed the police or made any
attempt to do so : nor did K. Achan Kunju who was sitting in
the lorry next to Mathayi (P.W. 3). Mathayi, however, does state
in his evidence that he made an attempt to contact the police on
telephone but the telephone line being out of order he did not succeed.
This, he did, from the house of Attupurathu Punnachan
where he stopped for this purpose on his way back home from
the house of Achan (P.W. 5). The contention forcefully pressed
before us is that P.W. 3 who was driving the lorry could have
driven straight to the police station and lodged the necessary infonnation.
Indeed, the submission proceeds like this.
After
having left the scene of the alleged murder P.W. 3 and his companions in tlte lorry could and .should have gone straight to the
police station to lodge the first infonnation report. In any event
P.W. 3, who, on his own showing, tried to contact the police on
telephone but failed to do so as the telephone line was out of
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APREN JOSEPH v. KERALA (Dua, /.)
order, could and s!lould, after this unsuccessful attempt, ·have
proceeded in his lorry to the police station to make the report.
This should have been considered to be more hnportant than going to his home. The fact that none of these persons considered
it important enough or even pmper to go and lodge the first information report shows that no one witnessed the murder and
the whole story deposed by the prosecution witnesses in court is
a concoction which is the outcome of the fertile brain of P.Ws. l.
3,. 4 and 5 aod does not represent the truth.
Now first information report is a report relating to the colUluission of an offence given to the police and recorded by it under
s.154, Cr. P.C. As observed by the Privy Council in /1.£. v.
Khwaja(') the receipt und recording of information feport by
the police is not a condition precedent to the setting in motion of
a criminal investigation. Nor does the statute provide that such
irformation report can only be made by an eye witness.
First
information report under s. 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or
contradict the informant's evidence in court. But this information
when ·recorded is the basis of the case set up by the informant.
It is very useful. if recorded before there is time and opportunity
to embellish or before the informant's memory fades. Undue
or unreasonable delay in lodging the F .l.R., therefore, inevitably
gives rise to suspicion which puts the court on guard to look
for the possible motive and the explanation for the delay and
consider its effect on the trustworthiness or otherwise of the
prosecution version. In our opinion, no duration of time in the
abstract can be fixed as reasonably for giving information of a
crime to the police, the question of reasonable time being
n
matter for detennination by the court in each case. Mere delay
in lodging the first infonnation report with the police is. therefore, not necessarily, as a matter of law, fatal to the prosecu~
tion. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly
must fall for consideration· on all the facts and circumstances of
a given case.
In the case in hand the eye witnesses who had seen . the
occurrence were afraid of going to the police station
during
night time. The evidence to this effect seems to us to be trustworthy and has not at all been shaken in cross-examination.
The submission that no reasonable human being in those circumstances could or should have felt frightened and, therefore,
the ground of fear is a mere excuse is unacceptable. Indeed,
there is hardly any effective cross·e)(amination
on
the· point
0) T.t.R. 1945 L:lh, I.
SUPREME COURT REPORTS
(1973] 2 S.C.R.
eliciting any illuminating information indicative
of
suspicion
with respect to their reluctance to go, during the night or early
in the morning, to the police station for making the report. The
effect on their mind of having witnesses such a gruesome murder
at the hands of a group of persons armed with lethal weapons
and extremely inimical to the eye witnesses, cannot be measured
by any general yard-stick. It necessarily depends on the mental
make up of each individual person. Some may feel so frightened
that they would rue their decision which took them to the place
of occurrence and would tak-e a long time to be their normal
self, whereas some others would not mind informing the police
if they can conveniently do so without going out of their way:
still others may be highly public-spirited and
may,
therefore.
feel so strongly that they would in their enthusiasm go all out.
as though inspired by missionary seal, to contact the police and
infonn them about the crime. · It is difficult as also inadvisable
to lay down any uniform general rule in this respect.
As each
case has to be considered on its ~wn facts and circumstances let
us see how the courts berow -.have dealt with this question. The
trial court repelled the defence contention in these words :
"It has been pointed out on behalf of the defence
that none of the persons who were
along with the
deceased informed the police.
P.W. · 3 swears that he
made an attempt to contact the police over phone.
But because of some line disorder he could not infonn
the police.
P.W. 2 is the
Panchayat Member
of
Ward no. 4 of Puthupally Panchayat. He got information in the early hours of morning and went to the
place of occurrence <}nd sav .. · the
deceased.
Thereafter he proceeded to the police st<2tion and gave Ex.
P 1 statement, The fact that none of the persons who
was present at the time of occurrence did not infom1
the police is not sufficient to warrant a conclusion that
the alleged eye witnesses were not present there."
1 n the High Court also this criticism "Was repeated but met with
no better fate.
This is what Narayana Pillai J., said in
this
connection :
"
One has· to visualise
the
situation
in
which P .Ws. 1 and 4 and Baby were
at the time.
There were many active members and
sympathisers
of the Marxist Party at Puthupally. That party had
strong foothold there.
The 1Oth
accused
was the
Secretary of that party there.
The formation of tbe
Karshaka Sangham which was opposed to the Marxist
Party was not to the liking of members of the Marxist
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AI'RE:'-i JOSEPH \', KERALA (Dua, J.)
Party. Ten to tw~nty Jays before the occurrence there
was a quarrel between members of the Marxist Party
and the Karshaka Sanghams at Eramalloor about the
putting up of bunds on paddy fiields. There was also
a quarrel between Kuruvilla and members of the Marxist Party about agricultural labour at one Puthukari
field which belongs to several
persons.
The whole
atmosphere must have been surcharged with tear after
the meeting of the Karshaka Sangham on the
13th
evening was over. There was no
residential
house
anywhere near the scene.
The road there was desolate. There was, therefore. nothing unusual if P.Ws. L
3 and 4 and Baby left the place at the time of the
occurrence for safety instead of remaining there
to
render assistance to Kuruvilla.
Although P.W. 3 had
before the occurrence offered to take P.Ws. 1 and 4
and Baby in his lorry, ·after the occurrence he thought
that to take them in his lorry was risky and tllat was
why at the Eramalloor junction he asked them to get
out of the lorry. P.W.s l and 4 and Baby were in a
room in the house of P.W. 5 for the rest of the night.
At 7.15 a.m. P.W. 1 went out of that house."
Moidu J ., in a separate concurring note dealt with this mattelmorc specifically and observed ;
''The only circumstance pointed out
during
the
argument of the learned counsel was that these witnesses could not have seen the occurrence and that if
they had seen thi!y would have reported the incident
to the police without delay.
The evidence was clear
to show that these witnesses \vould not have dared to
get out of the place \Vhcre they stayed in the night after
the gruesome murder was committed. Neither P.W. 1
nor P.W. 4 was prepared to get out of the house of
P.W. 5 at midnight.
P.W. 3 had to go to his house
hv a different route and though he made an attempt to
inform the police he did not succeed.
On the next
day P.W. 3 had to go to Erumeli with the lorry and
he returned home only by about 5.30 p.m. Within a
short time thereafter he was questioned by the police."
From this it is obvious that keeping in view the local tense atmosphere and the effect of this ghastly murder on the eye witnesses their strong disinclination to go and lodge the report
du~ing the night after the alleged occurre~c~, which seems quit~
naturaL cannot by itself arouse any susptcton . about t~e. prosecution ·case. The bad condition of the road, not penmtttng the
lorry to go faster than six or ten miles per hour. ac; stated by
SUPREME COURT REPORTS
[1973] 2 S.C.R.
P.W. 3, may also have consciously or unconsciously
detened
them, to some extent, from risking a visit to the police station
during the night. In this connection it would not be unimporJ.ant to bear in mind that P.W. 3 did not possess a driving licence
and he would naturally have hesitated in driving the lorry to
the police station. The concurrent conclusions of the two courts
below on this point deserve serious consideration
and cannot
be Jigh~ly brushed aside.
But that apart, it would also need a
highly creative and fertile brain to cook up an imaginary story
embodying in it, the peculiar .features of the prosecution case .
. and that also within a short span of time, after learning of the
murder on the morning of December 14, 1970 and before making the statement to th~ police at noon the same day as deposed
by P.Ws. 1 and 14.
In fact P.W. 2, a member of Panchayat.
who is no partisan and whose statement
is
corroborated by
P.W. 14 had, already informed the police (per Ex. P-1) much
earlier at about 9 a.m. about what he had seen at the place of
oOccurrence and what he had heard
involving
five
accused
persons: This adds to the vu~nerabi1ity of the defence version.
Features which seem peculiar for their insertion in an imaginary
story which could hardly be circulated so early as
to reach
P.W. 2 to enable him to go tothe spot and then to go to lodge
·the F.I.R. at 9 a.m. arc (i) bringing on the scene (a) a lorry
driven by its owner (P.W. 3) who does not belong to Karshak
Sangham and who nonnally does not drive that lorry and does
not even possess a driving licence but has employed a wholelime driver for the said lorry; (b) th~ other eye witnesses along
with the companion of P.W. 3, Kadiyathuruthil Achan Kunju
who has not appeared as a witness, (ii) to make P.W. 3 drive
1he eye witnesses to the house of Achan for dropping them there~
after having dropped Kadiayathuruthil Achan Kunju on
the
road, and finally (iii) on his way back home to make P.W. 3
attempt unsuccessfully to contact the police on telephone from
the house of Attupura$u Punnachan.
What is more intriguing
'is that as many as ten accused persons should have been in·
volved but only five assigned overt acts in th~ murder and one
only an injury with a wooden spear to P.W. 4, the rest (including accused no 10, the Secretary of the Marxist Party)
beh1g
only involved as members of the unlawful
assembly. In the
absence of a plausible and rational explanation as to whv only
accused nos. 1 to 5 should have been selected bv the author of
1hi~ concocted imaginary version for the direct and active role
·in the murder, this feature also tends to dhcount the credibility
of the defence version.
Now, assuming sucli' a fictional stOJ)'
t~ have been. invented i~ retrospect, for this is the only a1tematrve to the WJtnesses bavmg actualJy seen the commission of the
murder. one has to ponder to find a rational and plausible ansB
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Al'REN JOSEPH v. KERALA (Dua, J.)
27
wer to several puzzling ~estions. To begin with it is not understood where was the necessity of introducing P.W. 3 insteact of
his driver.
And then what was the reason for bringing Kadiyathuruthil Achan Kunju in the picture when he was
not to
appear as a witness. lt is also not easy to understand, on the
evidence and in the peculiar circumstances of this case, as to
how the prosecution witnesc;es deposing about the occurrence,
other than P.W. 3, managed to get together for
consultation.
after learning of the murder and incn how. where and when.
did they contact P.W. 3 with the object of prevailing upon him
to take up the important role in this drama and subscribe to
this imaginary story. P.W. 3 was cros<>-examincd at great length
but his credibility was not at all shaken.
He said in a forthright manner that he had reached his house on the fateful night
at about 2 a.m. and on the following morning at about 6 or
7 ·O'clock he went to Erumalloor from where he returned -at
5.30 p.m. and it was then that he learnt about Kunju's death.
He had. however, narrated the incident to his wife and brother
!>n reaching his house at 2 a.m. His statement was recorded by
the police at about 7 p.m. on his return from Eramalloor. His
testimony apoears to be straightforward and imoressive, and it
has been believed by the courts below.
No convincing argument has been advanced for differing
with
their view.
In a
concocted story P .W. 3 could not reasonably have been assigned
a role of such vital imPOrtance. Indeed, his presence seems to
be a strong factor which renders the defence theory incredible
and establishes the truth of the prosecution version. But apart
fn>m the inherent weakness of the theory of the story having
been concocted to fa1se1y imolicate the
accused persons, the
prosecution version as a whole has also been accented bV both
the trial court and the Hh:!h Court for reasons which cannot be
said to be unsound or imolau<;ible.
In fact, there appears 10
be a ring of intrinsic truth in this version.
The trial court believed the version given by P.W. 4 as also
the tesHmonv of P. Ws. 1. 3 and 5.
P.W. 5 was not an eve
witness to the occurrence but he fully
corroborated that the
deceased and P.Ws.l, 4 and Babv had gone to him bv 11.30 p.m.
and later at 1.30 a.m.
The three persons, other than the dece~s
~d. returned to him and informed him of the occurrence. The
trial court felt that P.W. 5 had no reason to falsely swear against
the accused.
The sto• .. , given bv P.Ws 1. 3 and 4 was consirlered
bv the trial court to b.! sonc:;~ tcnt and reliable.
The High Court
in an exhaustive judgment after di~cu~sing the criticism levelled
a)!ainst the orosecution version observed :
"We have carefully gone through the
cnti:-~ evidence of all the witnesses. On all material matters the
28
SUPREME COURT REPORTS
(1973] 2 S.C.R.
evidence of P.Ws 1, 3 and 4 is clear, consistent and
convincing.
All the facts spoken to by them strike as
nothing but truth.
Tht(y are quite natural witnesses.
There is absolutely nothing in their evidence
to disbelieve them. They corroborate each
other. Their
evidence i-; abo corroborated by
the
circumstances
brought out in the case.
The trial Judge believed them
and we cordider rightly.
It is proved beyond reasonable doubt that it was in the manner spoken to by
P.Ws 1, 3 and 4 that the occurrence took place.''
We have not been persuaded to hold that these concurrent
cooclusions of the two courts arc in any wa)• tainted by an infirmity justi~ying interference by us in the present appeal so far as
accused nos. 1 to 5 are concerned whose appeal has been prosented under Art. 136 of the Constitution. Even otheiWise the
conclusions arc unexceptionable on the material to which our
attention is drawn and we unhesitatingly agree with them.
It is
not disputed and indeed both the courts below have found that
on December 12, J 970, there was full moon and as such there
was moonlight at the time of the occurrence. The nearest street
light is also stated to be about 130 ft. towards the west and the
nearest electric post on the eastern side was about 90 ft.
away
from the place of occurrence.
The light of the lorry also helped
the eye witnesses to clearly sec who the assailants were. The
concurrent. conclusion of the two courts below leaves no doubt
that the witnesses present at the place of the occurrence were in
a position to clearly see and identify the accused persons who
were not strangers to them.
The lriere fact that the eye witnesses did not gather up
enough courage to go to the police station to lodge the first information report or to go to the place of the occurrence during the
night or early in the following morning to give some aid to the
deceased, who undoubtedly was no blood-relation of any one of
the witnesses, does not show that they had not witnessed the
occurrence and the whole story is imaginary and made up only
for falsely implicating the accused due to enmity.
P.W. 3 having
decided to go home with the lorry. the other witnesses quite
naturally did not dare to move about during the nigh't.
The conviction of accused Nos. 1 to 5 under s. 302 I.P.C. and s. 148 is
upheld as also the sentence under s. 148 I.P.C.
In so far as accused no. 6 is concerned the High Court has
believed the testimony of P.W. 4 which is corroborated by the
medical evidence. We see no reason to differ with the conclusion of the High Court. He must, therefore, be held to have
been nghtly found guilty of inflicting injury with the wooden
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APREN JOSEPH v. KEllALA (Dua, J.)
29
spear on P.W. 4.
The sentence imposed on him is also not
open to any objection. This injury was apparently not inflicted
pursuant to the common object to kill the deceased but only when
provoked by P.W.4.
This t<tkes us to the case of accused nos. 7 to 10 who have
been convicted by the High Court of an offence uneler s. 148,
I.P.C. It IS true that these accused persons were accompanying
the others but no overt act has been imputed
to them. The
entire occurrence seems to have taken place within a short span
of time and it is difficult to hold that they formed an unlawful
assembl} with the common object of killing the deceased.
No
doubt, in their case this Court has to go into the entire evidence
because their appeal had been presented under Act No. 2S of
1970. The evidence does not seem to show that they were aware
of the common object of accused nos. 1 to 5 to kill the deceased.
They must, therefore, be acquitted of the charge under ss. 308/
149. Evidence is also wanting on the record to show that these
accused persons were parties to any common object or committing
any unlawful act which accused nos. 1 to 5 had in view. We
have, therefore, no hesitation in acquitting them of the charge
under s. l 48, l.P.C. as well.
On the same reasoning accused
no. 6 is also acquitted of charges under ss. 302/149 and s. l4R .
. Indian Penal Code.
We should like to point out that in this case the learned counsel for the appellants was penuittcd to refer to any evidence he
considered proper for considering the credibility of the witnesses
with regard to the whole of the prosecution story because with
respect to accused nos. 6 to 10 the appeal was not before us
under Art. 133 of the Constitution but under s. 2(a) of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 28 of 1970. It was, therefore, only proper that the evidence
be appraised by this Court with respect to all the accused persons, in order to avoid conflict in the conclusions in this respect.
Coming to the question of sentence imposed on accused nos.
to 5, after the amendment of s. 367(5), Cr.P.C. in 1955 it is
a matter of judicial discretion for the court to decide on a consideration of all the relevant circumstances of th~ case, which of
the two pem1issible sentences under s.
302, I.P.C. should be
imposed.
It is no longer necessary to give reasons for the lessrr
penalty.
The detennination of sentence in a given case depenas
on a variety oi considerations, the more important being, the
nature of the crime, the manner of its commission, the motive
which· impelled it and the character and antecedents of the
accused.
So far <ts the accused before us 'lfe concerned it
•.t
30
SUPREtfE COURT REPORTS
(1973] 2 S.C.R,
appears that in their excessive . zeal f<;>r their p~rty they felt undulv
provoked by the success of the meetmg organtsed by the Karshak.
San&ham and being m~sguided by. politic.al intolerance and cult
of VIOlence they committed the offences m question soon after
the said meeting.
We, therefore, feel that the interest of justice
would be fully served in this case if we substitute the sentence
of impri~onmcnt for· me for the sentence ·of deatlt.
We,
however, must not be understood to lay down any general rule with
regard to sentence applicable to all cases of political murders.
Murder inspired by dilfcrences of politicnl opinions ·as idcoloaics.
it may be pointed out, is wholly inconsistent with our svste~ of
government \'!here the Con~titLttion has guaranteed frceJom of
thought and expression to all citizens and patties. so lono- as thcv
act within the Constitution and the law.
We have red~tced th~
sentence of death to tbut of li[c impri<;onmcnt OH accused nos.