# 4 S.C.R. 526 M.C. ALI AND ANR v. STATE OF KERALA

- **Citation:** [2010] 4 S.C.R. 526
- **Court:** Supreme Court of India
- **Decided:** 2010-04-13
- **Case number:** Criminal Appeal Nos. 499 of 2002
- **Bench:** B. Sudershan Reddy, Sufunder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-526-m-c-ali-and-anr-v-state-of-kerala-26675
- **Pages:** 34

## Headnote

Penal Code, 1860: ss.302, 307, 149, 34 - Murder of one
C and grievous injuries to others allegedly on account of
religious enmity - Acquittal by trial court disbelieving
prosecution story - High Court setting aside acquittal and
ordering conviction under ss.302, 307, 149, 34 - Correctness
of - Held: High Court erred in interfering with the order of
D acquittal recorded by trial Court - The sequence of events and
the evidence were meticulously examinea' by the Trial Court
- Trial Court noticed that the incident took place in dark, but
no torches were recovered from the accused - The evidence
of injured prosecution witness PW1 was not believed as his
E behaviour appeared wholly unnatural - PW2 was present
when police reached scene of incident but his statement was
not recorded - Names of accused were me·ntioned in the First
Statement but not in the inquest report recorded later in time
-
There was no explanation for injuries suffered by the
F accused - Even the witnesses were interested witnesses and
could not be believed in the absence of independent
corroboration - Findings recorded by trial court were neither
perverse nor unreasonable - Conviction set aside - Evidence
- Interested witness.
G
Prosecution case was that PW-5, his; family and close
relatives were believer of a particular soct in the muslim
community and were socially boycotlted by the large
section of the community. This created frequent conflicts
H
526
M.C. ALI AND ANR. v. STATE OF KERALA
527
in the locality between the two groups. PW-5 brought A
PW-1 and deceased from a different place to work in his
fields. PW-1 and deceased were residing in the house
of PW-5. On S0.1.1994, PW-5 received information about
the injuries suffered by the son of his brother CW9. Due
to the tension prevailing in the locality between the two
B
groups of the community, PW-5 asked PW1 and the
deceased to accompany his son PW-2 to visit the house
of CW9. At 9.15 p.m., they proceeded towards the house
of CW9 through paddy fields, holding torches in their
hands. A group of 15 persons was standing at tile end c
of the paddy fields. The group also had torches in their
hands. They flashed torches on them. Accused persons
were in possession of M01 weapon, knives and sticks.
They suddenly attacked PW-1, 2 and the deceased. A1
to A4 inflicted cuts on the neck of the deceased and as a
0
result he fell down. A-1 to A~6 again attacked deceased.
PW-1 ran from the spot to save himself, and took shelter
in the house of CW-9. PW-2 who also suffered injuries,
ran for his life and reached the house of CW9. As
deceased did not reach the house of CW-9, PW-1 along
E
with the son of CW9 went to the scene of occurrence and
saw the deceased lying dead.
PW-5 also heard a lot of noise from the side of parldy
field. He went towards the paddy field and on the way
he saw accused 1 to 4, 7, 9, and 11 to 13.
All of them
F
possessed knife and sticks. Fearing attack PW-5 ran
towards his house.
PW-8, the Head Constable registered FIR at 00.30
hours on 31.1.1994. On that day morning, it was sent to G
the Magistrate who signed it at 3.30 p.m. Trial court did
not believe the prosecution story and acquitted all the
accused. High Court set aside the acquittal and ordered
conviction under Sections 302, 307, 49 and 34 IPC.
Hence these appeals.
H
528
SUPREME COURT REPORTS
[2010) 4 S.C.R.
A
Allowing the appeals, the Court
HELD: 1.1. If two reasonable co,nclusions are
possible on the basis of the evidence on record, the
Appellate Court should not disturb the findings of
8 acquittal. The acquittal re-enforces and reaffirms the
presumption of innocence of the accused. [Para 44) [5568)
Antar Singh v. State of M.P. (197'9) 1 SCC 79;
Chandrappa v. State of Kamataka 2007 (4) SCC 415; Kali
C Ram v. State of H.P. (1973) 2 sec 808, rellied on.
1.2. The incident took place in the dark. The Trial
Court noticed that none of the torches were recovered
or produced by any of the concerned persons. There was
0 also no moon light. In such circu

## Text

_Characters 0–39,930 of 68,119. This is a partial read: ask again with offset=39930 for what follows._

A
B
(2010] 4 S.C.R. 526
M.C. ALI AND ANR.
v.
STATE OF KERALA
(Criminal Appeal Nos. 499 of 2002)
APRIL 13, 2010
[B. SUDERSHAN REDDY AND SUFUNDER SINGH
NIJJAR, JJ.]
Penal Code, 1860: ss.302, 307, 149, 34 - Murder of one
C and grievous injuries to others allegedly on account of
religious enmity - Acquittal by trial court disbelieving
prosecution story - High Court setting aside acquittal and
ordering conviction under ss.302, 307, 149, 34 - Correctness
of - Held: High Court erred in interfering with the order of
D acquittal recorded by trial Court - The sequence of events and
the evidence were meticulously examinea' by the Trial Court
- Trial Court noticed that the incident took place in dark, but
no torches were recovered from the accused - The evidence
of injured prosecution witness PW1 was not believed as his
E behaviour appeared wholly unnatural - PW2 was present
when police reached scene of incident but his statement was
not recorded - Names of accused were me·ntioned in the First
Statement but not in the inquest report recorded later in time
-
There was no explanation for injuries suffered by the
F accused - Even the witnesses were interested witnesses and
could not be believed in the absence of independent
corroboration - Findings recorded by trial court were neither
perverse nor unreasonable - Conviction set aside - Evidence
- Interested witness.
G
Prosecution case was that PW-5, his; family and close
relatives were believer of a particular soct in the muslim
community and were socially boycotlted by the large
section of the community. This created frequent conflicts
H
526
M.C. ALI AND ANR. v. STATE OF KERALA
527
in the locality between the two groups. PW-5 brought A
PW-1 and deceased from a different place to work in his
fields. PW-1 and deceased were residing in the house
of PW-5. On S0.1.1994, PW-5 received information about
the injuries suffered by the son of his brother CW9. Due
to the tension prevailing in the locality between the two
B
groups of the community, PW-5 asked PW1 and the
deceased to accompany his son PW-2 to visit the house
of CW9. At 9.15 p.m., they proceeded towards the house
of CW9 through paddy fields, holding torches in their
hands. A group of 15 persons was standing at tile end c
of the paddy fields. The group also had torches in their
hands. They flashed torches on them. Accused persons
were in possession of M01 weapon, knives and sticks.
They suddenly attacked PW-1, 2 and the deceased. A1
to A4 inflicted cuts on the neck of the deceased and as a
0
result he fell down. A-1 to A~6 again attacked deceased.
PW-1 ran from the spot to save himself, and took shelter
in the house of CW-9. PW-2 who also suffered injuries,
ran for his life and reached the house of CW9. As
deceased did not reach the house of CW-9, PW-1 along
E
with the son of CW9 went to the scene of occurrence and
saw the deceased lying dead.
PW-5 also heard a lot of noise from the side of parldy
field. He went towards the paddy field and on the way
he saw accused 1 to 4, 7, 9, and 11 to 13.
All of them
F
possessed knife and sticks. Fearing attack PW-5 ran
towards his house.
PW-8, the Head Constable registered FIR at 00.30
hours on 31.1.1994. On that day morning, it was sent to G
the Magistrate who signed it at 3.30 p.m. Trial court did
not believe the prosecution story and acquitted all the
accused. High Court set aside the acquittal and ordered
conviction under Sections 302, 307, 49 and 34 IPC.
Hence these appeals.
H
528
SUPREME COURT REPORTS
[2010) 4 S.C.R.
A
Allowing the appeals, the Court
HELD: 1.1. If two reasonable co,nclusions are
possible on the basis of the evidence on record, the
Appellate Court should not disturb the findings of
8 acquittal. The acquittal re-enforces and reaffirms the
presumption of innocence of the accused. [Para 44) [5568)
Antar Singh v. State of M.P. (197'9) 1 SCC 79;
Chandrappa v. State of Kamataka 2007 (4) SCC 415; Kali
C Ram v. State of H.P. (1973) 2 sec 808, rellied on.
1.2. The incident took place in the dark. The Trial
Court noticed that none of the torches were recovered
or produced by any of the concerned persons. There was
0 also no moon light. In such circumstances, the
recognition of the six accused could not bie possible. The
Trial Court had meticulously examined E!ach and every
issue. It also noticed that there was anticipation of trouble
otherwise there was no occasion for PW2 to be
E accompanied by PW1 and the deceased for going to the
house of CW.9, brother of PW5. The Trial Court also
traced the progress of these three individuals through the
paddy field. Since it was a dark night, it was not entirely
unbelievable that the torches were introd1l1ced to ensure
that the accused could be said to have been identified.
F Surprisingly, after the deceased was fatallly injured, PW1
bolted from the scene of crime. This PW1 was so loyal
to PW5 that he had been taking undue advantage of
being a scheduled caste and lodging false complaints
against the accused persons under the Scheduled
G Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989. Yet when the other faithful serv<mt of PW5 was
being brutally murdered, he ran away. Tlhe Trial Court,
therefore, rightly concluded that the behaviour of PW1
was wholly unnatural. [Para 47] [557-C-G)
H
M.C. ALI AND ANR. v. STATE OF KERALA
529
1.3. The Trial Court meticulously examined the
A
sequence of events with regard to the recording of the
FIR. The FIR was recorded at 0030 hrs on 31.1.1994. It
was not received by the Magistrate till 3.30 p.m. on
31.1.1994. The Trial Court also noticed that the names of
the accused were mentioned in First Information
B
Statement Ex.P.1. But they were not mentioned in the
relevant column of the inquest report. If Ex.P.1 had been
prepared prior to the inquest report Ex.P.14, the names
would surely have been mentioned therein. These
conclusions again cannot be said to be perverse. [Para c
49] [558-D-F]
1.4. The Trial Court also noticed that due to the long
enmity of P.W.5 and his family with the accused, the
evidence had to be scrutinized carefully. The deceased
as well as PW1 were the employees of PW5 who were
D
brought from the State of Karnataka as the local labour
was not available. The Trial Court noticed that in case
there had been an assault, as projected by the
prosecution, there was no reason why PW1 would have
been spared while the deceased was brutally murdered.
E
After all, it was P.W.1 who had proceeded against those
accused while working under PW5 by filing false cases
against the accused. The Trial Court also noticed that
delay in recording the statement of P.W.2 cannot be easily
brushed aside. He was conscious through all the night
F
and yet the statement was not recorded at the initial stage
by PW7. He became unconscious only at the time when
general anesthesia was given to him at 11.40 a.m. the
following day. The Trial Court noticed that there was .
absolutely no explanation with regard to the injuries G
suffered by the accused. This apart, all the witnesses
being interested witnesses, their evidence could not be
believed in the absence of independent corroboration.
Taking into consideration the entire facts and
circumstances of the case, it would not be possible to
H
530
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A agree with the High Court that the findings recorded by
the Trial Court were perverse or that only one conclusion
consistent with the guilt of the accused was possible. The
two views being reasonably possible the High Court
ought not to have interfered with the verdict of acquittal
B recorded by the Trial Court. [Paras 50- 52:] [558-G-H; 559A-B; 559-C-F]
c
Case Law Reference:
(1979) 1 sec 79
2001 (4) sec 415
(1973) 2 sec so8
relied on
relied on
relied on
Para 43
Para 44
Para 44
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
0
No. 499 of 2002.
From the Judgment & Order dated 18.12.2001 of the High
Court of Kerala at Ernakuklam in Crl. A.No. 444 of 1998 (B).
WllH
E Crl. A. Nos. 500-501 & 434 of 2002.
Ranjeet Kumar, E.M.S. Anam, Syed Ahmad Saud, Mohd.
Moonis Abbasi, Shakil Ahmed Syed for the Appellants.
F
C.S. Rajan, G. Prakash, Ramesh Babu M.R. (NP) for the
Respondent.
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. These three appeals
G have been filed against a common judgment of the High Court
whereby the six appellants in the three appeals have been
convicted under Sections 302, 307, 149 and 34 of the Indian
Penal Code (for short 'IPC' ); the sentence to life imprisonment
for offences under Section 302 read with Section 149 or 34 of
H the IPC; rigorous imprisonment for five years under Section 307
M.C. ALI AND ANR. v. STATE OF KERALA
531
[SURINDER SINGH NIJJAR, J.]
read with Section 149 or 34 of the IPC; rigorous imprisonment
A
for six months each under Sections 143 and 148 of the IPC.
2. Initially 13 persons including the six appellants had been
charge-sheeted in Kumbla Police Station, Crime No.22/1994
for offences punishable under Sections 143, 148, 324, 307 and
302 of the IPC read with Section 149 of the IPC. Upon trial,
B
the six appellants had been convicted under Sections 143,
147, 148, 307 and 302 read with Section 149 of the IPC and
sentenced to life imprisonment together with various other
periods of imprisonment under different sections. The
C
sentences were directed to run concurrently. Accused Nos. 7
to 13 were found not guilty and acquitted of all the charges. The
convicted accused filed Criminal Appeal No.391/96 before the
High Court of Kerala. At the same time, the acquittal of
accused Nos. 7 to 13 was challenged through revision by K.
Hussain (PW2) the son of Moosa Haji, PW5 (the injured
D
witness), through Criminal Revision Petition No.1115/96.
Through a common judgment, the High Court was pleased to
accept the appeal filed by the convicts and their convictions as
well as their sentences were set aside. The case was
remanded to the Trial Court for fresh disposal after complying
with the provisions under Section 233 of the Criminal Procedure
Code. Criminal Revision Petition No.1115/96 against acquittal
E
of accused Nos.7 to 13 was dismissed.
3. On remand, accused Nos.1 to 6 appeared before the
F
Court on 9.1.1998. They were given an opportLmity to adduce
defence evidence. Consequently, they examined DW1 to DW5
and marked Exbts. 07 to 010. At the time of the remand, the
earlier Sessions Judge who had convicted accused Nos.1 to
6 had been transferred, therefore, the evidence was recorded
G
by his successor in office. On a reappraisal of the evidence
led by the parties, the Sessions Judge came to the conclusion
that the prosecution had failed to prove the offences alleged
against the accused. They were, therefore, all acquitted.
4. These acquittals were challenged by the Sate of Kerala
H
532
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A in Criminal Appeal No.444/98 and by P'N2, K. Hussain, in
Criminal Revision No.552/98. The High Court, by a common
judgment, came to the conclusion that the prosecution had
conclusively proved the case against accused Nos. 1 to 6 and
the findings recorded by the Sessions Judge were perverse
B and manifestly erroneous. Therefore, the judgment of the Trial
Court was set aside. They have all been convicted for various
offences, as noticed above.
5. A9ainst the conviction and sentence, accused Nos.1
and 4, namely, K. M. lddinkunhi and Andan have filed Criminal
C Appeal No.434/2002, accused Nos. 2 and 3, namely, M.C. Ali
and Andunhi have filed Criminal Appeal No.499/2002 and
accused Nos.5 and 6, namely, B.K. Bayan Kunhi and K.B.
Abbas have filed Criminal Appeal Nos.500-501/2002.
D
6. We have heard the learned counsel for the parties.
Before we consider the submissions made by the learned
counsel, it would be appropriate at this stage to notice the case
as presented by the prosecution.
E
7.
It is claimed by the prosecution that Moosa Haji,
(PW5), his family and some of his close relatives are believers
of Shemsia Thareequat sect in the Muslim community. They are
the worshippers of Sun and followers of Sai Baba. They are
not accepted by a large section of the Muslim community.
Therefore, the local Jumaath had unleashed "a sort of an overt
F and covert attack on PW5 and other followers of Thareequat
movement." This had created fights betwe·en the two groups
of the locality which caused friction in the relationships, activities
and life which ended up in a number of disputes including
criminal cases. The majority in the Muslim community of the
G area had ex-communicated PW5 and other followers of
Thareequat movement. It is further alleged by the prosecution
that some of the religious scholars had even called upon the
members of the Muslim community to annihilate the followers
of the Thareequat movement on the belief that such actions
H would bring the reward from the Almighty. Such type of social
M.C. ALI AND ANR. v. STATE OF KERALA
533
[SURINDER SINGH NIJJAR, J.]
boycotting had put PW5 and other followers in a situation of
A
not even getting employees to work in the agricultural fields and
also for other work. This had compelled them to bring the
workers from other areas. PW1, Chandrasekhara, was thus
brought by PW5 from Ubradka, Mittur, Karnataka State and
deceased Faizal from Manjeri. Because of the threat· of other
B
people of the Jumaath both PW1 and deceased Faizal were
residing in the house of PW5. PW1 Chandrasekhara belonged
to Scheduled Caste.
8. On 30.1.1994, PW5 Moosa Haji and his son PW2
C
Hussain returned at about 8 p.m. to their home. They came to
know that the child of CW9, Mammunhi Haji, the brother of
PW5, had met with an accident and suffered some injuries. On
receipt of this information, PW5 asked PW2 to go to the house
of CW9 and enquire about the details. Because of the tension
prevailing in the locality between the two groups of Muslim
D
community, PW5 asked PW1 and the deceased Faizal to
accompany PW2 to the house of CW9. Thus all the three
proceeded to the house of CW9, at about 9.15 p.m.
There
were two ways to reach the house of CW9 from the house of
PW5. Both were through the paddy fields, one on the higher
E
level and the other on the lower level. They had proceeded
along the path way leading through the higher level. When they
reached the Thrikkandam paddy field of one Kunhamu Haji,
they proceeded westwards to reach the house of CW9. The
paddy field was free of paddy as the harvest was over. They
F
walked through the bund of the fields. All three of them had
torches in their hands. While thus proceeding, they found a
group of about 15 persons standing on the north-western end
of the paddy field. While they were proceeding westwards the
group of 15 moved towards eastwards along the same bund.
G
The group also had torches in their hands and they had flashed
the torches on PWS, 1, 2 and Faizal who also flashed back
their torches. In this light PW1 identified A 1 to A6 as he knew
them by name. A7 to A13 were also present in the group whom
H
534
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A PW1 could identify, but did not know their names at that time.
PW2 knew A1 to A13.
9. When both the groups thus reached at the paddy field,
the accused suddenly attacked PWs 1, 2 and F aizal. A 1 had
8 M01 weapon in his possession and A2 to A6 were in
possession of knives. A? to A 13 were in possession of sticks
like M02. A 1 to A4, with the weapons in their hands, inflicted
cuts on the neck of Faizal. When PW2 intervened, A 1, A3, A5
and A6 attacked PW2 with weapons in their possession.
C Because of the severity of the injury suffered by Faizal, he fell
down. A 1 to A6 had again attacked Faizal who was lying down
by inflicting cut injuries on his body. The othe~r accused had
beaten Faizal and PW2 with sticks. The accused were
shouting to do away with PW2 and Faizal. To save his life, PW1,
i.e., Chandrasekhara jumped from the higher level of the ridge
D to the lower level and took shelter in the house of CW9
Mammunhi Haji. PW2 Hussain, who also suffered injuries, rari
for his life and reached the house of CW9. As Faizal did not
reach the house of CW 9 Mammunhi Haji, PW 1 along with a
son of CW 9 went to the scene of occurrence! and saw that
E Faizal was lying dead in the paddy field.
10. PW 5 Moosa Haji heard a lot of noise from the side
of the paddy field. He sensed something bad must have
happened, as his son and employees had gone in that
F direction. Therefore, becoming restless, he procHeded towards
the direction from where the noise originated. He ran towards
the west of his house and as he reached the path to the mosque
on the north direction, he saw some persons entering that
pathway from the paddy field in the west. Some people had
G already gone towards north. On reaching nearer, he identified
accused 1 to 4, 7, 9 and 11 to 13. All of them possessed
weapons like knife or sticks. PW 5 Moosa Haji emquired as to
what happened to which A 7 replied that they had killed two
persons. Suddenly A 13 gave a cut to PW 5 with a sharp edged
H knife-like weapon. While warding off the same, PW 5, fearing
M.C. ALI AND ANR. v. STATE OF KERALA
535
[SURINDER SINGH NIJJAR, J.]
further attack, ran towards his house. He locked the door and
A
remained inside. His attempts to contact CW 9 Mammunhi Haji
over the telephone were not successful.
11. PW7, the then Sub-Inspector, Kumbla Police Station,
received information at 9:50 pm on 30.1.1994 over telephone
8
that some incident had taken place at Ujar Ulwar village
resulting in the death of one person. The informant did not
disclose his identity. PW7 entered this information in general
diary (Ex. P9). He then proceeded to the place of occurrence
with whatever force he had in the police station.
c
12. On reaching the place of occurrence, after making
inquiries near the local mosque, he was able to trace out the
house. of PW5, who was inside the house. He (PW5) narrated
what had happened to the Sub-Inspector and took the police
party along the pathway to the house of his brother, CW9. At
D
the house of CW9, they saw PW2 who had sustained injuries.
At that time they learnt that Faizal had been murdered. The
Sub-Inspector (PW7) immediately made arrangements to take
PW2 and PW5 to the hospital in the police jeep.
13. First lnformat1on Statement was taken from PW1 by
E
PW7 in the house of CW9. Since Police jeep was sent with
PW2 and PW5 to the hospital, he sent a constable to Kumbla
Police Station. The Head Constable (PW8) on general diary
charge (GD charge) duty, registered the FIR at 00.30 hours on
31.1.1994. On that day morning itself it was sent to the
Magistrate and the Magistrate signed it on the same day at 3.30
p.m. According to the prosecution, Circle Inspector, Kumbla
Police Station (PW9) who was at Kasargod on law and order
duty in connection with the meeting of the Muslim League,
received wireless information that two groups had clashed at
G
Ujar Ulwar village. He, therefore, rushed to the village with
police party where he met PW7. Both of them made
arrangement for maintaining law and order. They also posted
guards at the scene of occurrence during the night. The injured
witnesses PW2 and PW5, who were traveling in the police jeep,
F
H
536
SUPREME COURT REPORTS
[2010) 4 S.C.R.
A reached Bayikatta. From there they got into the car of their
relative as the jeep had to be returned to the Sub-Inspector
PW7. At that stage, PWS remembered that he had forgotten
to take any money. They, therefore, went to the house of one
Mohan Karnath, a friend of PWS, who also accompanied them
B to the City Hospital Research and Dia1inostic Centre at
Mangalore.
14. When the first accused was questioned, he made a
confessional statement to PW9 about the plaice of concealment
of M01, weapon of offence. A 1, after recording the statement,
C took PW9 to the ditch with thick grass on t11e eastern side of
the paddy fields where tile occurrence took place. He took out
knife (M01) from the place where it had bee11 concealed. This
was duly sealed by PW9 under Ex.PS seizure mahazar on
3.2.1994. The seizure mahazar is attested by PW6. The
D accused were produced before the Magistrate Court and
remanded in custody. The M01 was thErn forwarded for
chemical examination. The report of the chemical analysis
Ex.P21 shows there was human blood on M02 series, the
E
sticks. There was no blood on M01, 6 and 9.
15. Dr. S. Adhyanth PW3, the duty medical officer,
examined PW2 and PWS. He issued the wound certificate
(P4) in respect of PW2 and admitted him for treatment. He
was discharged on 7.2.1994. The same doctor also issued
F the wound certificate (PS) on examination of PWS who was
treated as an outpatient. The doctor PW3 sent intimation
Exbs.P6 and P13 to the police regarding the admission of PW2
and treatment of PW5. Further investigation was conducted
by PW9 from 31.1.94. He conducted the inquest on the dead
G body of Faizal. He also seized material objects (MOs 2 to 9)
and prepared Ex.P14 report. A knife (MOt3) covered with
newspaper (M09) was found kept at the back of waist of the
deceased. During the inquest PW9 got the photographs of the
dead body and the scene of occurrence which is marked at
Ex.P2 (series). Ex.P2 (A) shows that M06 was on the waist of
H
M.C. ALI AND ANR. v. STATE OF KERALA
537
[SURINDER SINGH NIJJAR, J.]
the deceased. The photos and the negatives were seized under
A
Ex.P17 seizure mahazar, when produced by the photographer.
PW9 also drew up Ex.P.15 scene mahazar. In Ex.P1, PW1
mentioned only the names of accused A 1 to A6. But he stated
several more accused were there whose names were not
given. But according to him, he could identify them. After
B
questioning PW2 and PW5, names of other accused were
included.
16. Dead body of Faizal was sent for post mortem and
PW3 received the post mortem certificate (Ex.P3) from the then
C
doctor of Community Health Centre, Kasargod. The post
mortem certificate was marked by consent of both sides under
Section 294 of the Criminal Procedure Code. In the First
Information Statement (Ex.P1), PW1 Chandrasekhara had
stated the names of accused 1 to 6. He also stated that there
were 7 more accused whose names were not known to him
D
but he could identify them on sight. PW2, according to the
prosecution, was under general anesthesia for suturing of the
wounds and, therefore, could not be questioned immediately.
However, he was questioned by PW9 on 3.2.1994 in the City
Hospital. Thereafter PW9 filed report (array of accused) P.16
E
in Court on 3.2.1994 including the names of accused 7 to 12.
PW5 was questioned by the investigating officer, PW9. On
4.2.1994 on the basis of his statement name of 13th accused
was added. Accused Nos. 1 and 3 to 6 surrendered before
the investigating officer in his office on 3.2.1994. They were
duly arrested. Accused Nos.AS to 12 were arrested between
29.4.1994 and 30.4.1994.
F
17. At the same time, A2 to A7 also claim to have suffered
some injuries on the night of 30.1.1994. They went to Unity
G
Health Complex at Mangalore on 31.1.1994, where they were
admitted and treated as in-patient. Exs. P23 and P24 are the
treatment particulars whereas Exbs.P25 and P26 are the case
sheets respectively of the accused. PW10 and DW1 had
treated them during this period. They were discharged on
H
538
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A 23.3.1994 on which date PW9 arrested them. A 13 was
absconding but later appeared before the Magistrate Court.
18. While at the Unity Health Complex, a statement was
given by M.C. Ali (A2), which was recorded by the Kadari Police
8 Station as the First Information Statement (Ex.P22). In this he
claimed that on 30.1.1994, he and his neighbour Abdul
Rahiman were returning from Kasargod at 9.30 p.m. after
attending a Muslim League meeting. Whein they reached a
place called Trikkandam through Kunjamu Haji's field at 10.15
p.m., they found Mammunhi Haji's son Hussain, his brother
C Abdul Khader, Moosa Haji, his son Hussain, his brother-in-law
Jamal Bayikkatta coming from the opposite direction. The
complainant also stated that these people had enmity with them
and thus they blocked them and told "we will not leave anybody''.
Mammunhi Haji's son and Jamal inflicted injurl1es on his left hand
D shoulder and armpit. When Abdul Rahimain came to block,
Moosa Haji and his son inflicted injuries on his right hand and
the wounds started bleeding. At that time complainant fell down
and he was beaten up on his right leg and lei~ side of the head
with a stick and as a result of which he became unconscious.
E He has also stated in his complaint that t1here was a case
pending regarding the issue of a mosque betNeen him and the
accused and thus the accused had caused injuries to them with
sword-like knife, sticks, etc. On the basis of the aforesaid
statement, Crime No. 67/94, transfer FIR
(Ex.P11) for
F offences under Sections 143, 147, 148, 324, 341, 506 read
with 149 IPC was registered. The same was later on
transferred to Kumbla Police Station, where 1=>W8 registered it
as Ex.P12 of Kumbla Police Station. PW9 also conducted the
investigation of FIR (Ex.P12).
On completion of the
G investigation charges were filed against five accused persons
including PW2 and PW5.
19. On committal this case was numbered as SC No.66/
95 against the 13 accused. The case against 5 accused,
registered on the basis of FIR Ex.P12, was numbered as SC
H
M.C. ALI AND ANR. v. STATE OF KERALA
539
[SURINDER SINGH NIJJAR, J.]
111/95. The trial of both the cases was taken up simultaneously
A
one after the other and judgment in both the sessions cases
was pronounced on the same day. We have noticed above
that after trial accused 1 to 6 were convicted in SC No.66/95.
20. On remand, the accused had examined DWs 1 to 5.
8
The Trial Court takes note of the post mortem report of the dead
body. It was marked as Ex.P3 by consent of both the sides.
The report indicates the following external and internal injuries:
"Entire body of an adult male lying supine. Rigor
mortis present in both upper & Lower limbs. Bleeding from
C
both nostrils present.
External injuries:- Incised wound on the face transversely
placed extending from the center of upper lip to Lt. Ch~ek
14 x 3 x 3 c.m. exposing the oral cavity cutting the full
0
thickness of facial muscles. 2) Incised wound on the Lt.
Cheek below the Lt. Eye transversely placed 6 x 1 c.m.
skin deep. 3) Incised wound on the lower part of chin
transversely placed 10 x 6 c.m. flap of skin &
subcutaneous tissue raised exposing the lower part of
E
mandible. 4) Incised wound on the Right side of neck
transversely placed 12 x 5 x 6 c.m. cutting the muscles of
neck on Right side with carotid artery and jugular veins and
trachea being cut.
Incised wound on the inner aspect of left ankle region
F
transversely placed 6 x 1 x1 c.m. cutting the lower end of
tibia. 6) Incised wound 1 c.m. above injury No.5
transversely placed 4 x 1 c.m. skin deep. 7) Incised wound
on the front of right leg transversely placed 5 x2 c.m. cutting
the tibia which is fractured. 8) Incised wound on the front
G
or right leg 6 c.m. above injury No.7, 4 x 5 c.m. skin deep.
9) Incised wound on the dorsum of right second toe 5 x
0.5 x 1 c.m. along the long axis of the toe cutting the
tendons and bone. 10) Linear abrasion obliquely placed
on the front of right thigh 6 c.m. long. 11) Linear abrasion
H
A
B
c
540
SUPREME COURT REPORTS
[2010] 4 S.C.R.
obliquely placed on the front of left thigh !5 c.m. long. 12)
Linear abrasion transversely placed on the front of left
shoulder 3 c.m. long. 13) Incised wound on the right side
of scalp running anterior posterior 6 x 1 c.rn. exposing the
skull.
Internal Examination :- Thoracic cage intact. Heart &
Lungs intact. Plae stomach, contains partly digested food
materials. Liver, spleen and kidneys plae. Urinary bladder
contains 150 c.c. of Urine, skull intact, Brain and meninges
pale".
21. The opinion as to the cause of death of Faizal given
in Ex.P3 is that "the deceased dies due to hemorrhage and
shock due to injuries to major vessels of neck". During the
hearing neither the prosecution nor the defence has challenged
D the finding and the opinion contained in Ex.P3. Therefore it was
accepted by the Trial Court that Faizal died due to hemorrhage
and shock suffered by him because of the injurie:s on the major
vessels of the neck.
E
22. We may also notice here that the injuries noted in the
wound certificate (Ex.P4) issued to PW2 on examination by the
doctor PW3. PW2 was examined at 1.15 am on 31.1.1994.
The certificate indicates the following injuries:
"1.
L shaped incised wound on the pariotalaspect of
F
the skull 5 x 6 c.ms;
G
H
2.
Two small incised wounds on the right
parietal
region of the skull;
3.
Incised wound over the nose 2 cm x ·1 cm;
4.
Swelling and deformity over the lower end of left
hand. X-ray of the left hand showed c:omminuted
fracture ofright ulna lower
end."
23. As noticed earlier, he was admitted on 31.1.94 and
M.C. ALI AND ANR. v. STATE OF KERALA
541
[SURINDER SINGH NIJJAR, J.]
discharged on 7.2.94. The injury No.4 was grievous while the
A
other injuries were simple. The doctor also noticed that the
history was of alleged assault by known persons at Ulwar,
Kumbla at 10.15 pm on 30.1.1994. PW5, who was examined
by doctor PW3 at 1.25 am on 31.1.1994, was also issued
wound certificate Ex.P5. As per Ex.P5 statement following
B
injuries were suffered by PW5:
"1.
Incised wound over the first web space of the left
hand with partial tear of the flexor tendons ( 1" x Yi")'
2.
Incised wound on the base of the leftthumb 3/4 "x
C
Y4".
24. Doctor also opined that injury No.1 in respect of PW5
was grievous in nature. PW3 sent intimation Ex.PS to the
police. As per the intimation report P6, RMO had come to the
D
hospital. On the basis of Ex.PG, it has been noticed that PW2
was taken to the operation theatre for suturing and closed
reduction under general anesthesia was done. The report also
shows that at 11.40 am on 31.1.1994 the patient was not in a
position to give a statement. The Trial Court notices that after
E
remand the defence had examined DW1 to DW5 and marked
Exs. D7 to D10, the prosecution had marked Ex. P25 (a-g).
Thus the total evidence in this case was PW1 to 10 and Exts
P1 to P26 series together with M01 to 9 for the prosecution
and DW1 to 5 and Exts.01 to D10 for the defence. The Trial
Court, after hearing submissions from the prosecution as also
the defence, formulated the following points for consideration:
"1.
What was the cause of death of Faizal?
F
2.
Whether the accused 1 to 6 along withothers had
G
formed themselves in to anunlawful assembly and
acted, infurtherance of their common object, as
alleged against them by the prosecution?
3.
What offence, if any, is proved against the
accused 1 to 6?
H
542
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
4.
Regarding sentence?"
25. As noticed earlier, the post mortem report has been
accepted by both the sides, according to which Faizal died due
to hemorrhage and shock suffered by him because of the
8
injuries on the major vessels of neck. Whil'e discussing points
No.2 and 3, the Trial Court notices that PW1 is a native of
Mittur, in State of Karnataka and has been living in the house
of PW5 as a worker under him for the last about 10 years. He
had gone with PW2, and the deceased Faizal to the house of
CW9 at about 9.15 pm on 30.1.1994. It is alleged by the
C prosecution that the occurrence took place1, whilst they were
enroute to the house of CW9. PW1 has supported the
prosecution version. It was he who gave Ex.P1 FIS to PW?
on the basis of which crime against A 1 to A6 was registered
at Kumbla Police Station. The Trial Court then notices the
D sequence of events as narrated earlier. Prosecution mainly
relied on the evidence of PW1, 2 and 5 in support of its version.
26. The Trial Court noticed the entire sequence of events,
narrated above. It also noticed the defenco version. It was
E noticed that the learned counsel appearing for the accused had
pointed out that there was delay in sending Ex.P1 and P10 to
the Court; PW1 was probably not present at the scene of the
incident; the injuries sustained by A2 and A7 were not
explained by the prosecution and the registra:tion of a counter
F case by A2 would be sufficient to show that it was the PWs who
were the offenders.
27. The Trial Court further notices that the local Muslim
community who are in majority have a long standing enmity with
PW5, his family and other close relatives. The religious
G scholars had even called upon their followers to do away with
the believers of Shemsia Thareequat sect of the Muslim
community. Their life and movement had been made
impossible in the locality. The majority of the Muslim community
was encouraged to disrupt the life of the family of PW5 and his
H relatives. They had been boycotted and were not allowed to
M.C. ALI AND ANR. v. STATE OF KERALA
543
[SURINDER SINGH NIJJAR, J.]
socialize with the local Jumaath. The Trial Court also notices
A
the prosecution version that on 30.1.1994 at about 8 pm, PW5
and his son PW2 returned to the house. They were informed
that CW9, brother of PW5, who was residing at some distance
from the house of PW5 had telephoned to inform that his son
had sustained some injuries because of a fall. Therefore PW5
B
had asked PW1 and deceased Faizal to go along with PW2
to the house of CW9. PW1 and Faizal had been asked to go
along with PW2 due to the peculiar situation existing in the
locality against PW5 and his family. At about 9.15 P .M. they
proceeded to the house of CW9 Mammunhi Haji.
c
28. In appreciating the evidence with regard to the alleged
occurrence, the Trial Court notices the background of both PW1
and deceased Faizal with regard to their relationship with PW5
Moosa Haji. It is noticed that PW1, who belongs to a schedule
caste community, had been working for PW5.for the last 10
D
years. At the time of the occurrence he was allegedly residing
in the house of PW5. He admits that his native place is Mittur
Sullia in the State of Karnataka. Faizal was also working under
PW5 and he is the native of Manjeri, Malappuram District. He
had also been brought by PW5 for employment as he was
E
unable to find any local workers. The Trial Court notices that
according to both PW1 and PW2 they had taken the shortest
route through the paddy field to the house of CW9. All of them
had torches in their hands. Whilst they were going they found
a group of 15 people standing together about 50 meters away
F
from them. At that time they were passing through the pathway
near the house of A4. They did not suspect anything when they
had moved forward for another 10.5 meters. One of the
individuals from the crowd flashed the torch light at them. Other
members of the crowd flashed their torch lights on the ground.
G
By that time the distance between the deceased PW1 and
PW2 and the other group was about 5 meters. All three of them
also flashed back their torch lights. PW1 and PW2 were
walking with Faizal in the front, in the torch light. Suddenly they
cut Faizal on his neck causing injuries. PW2 intervened. Then
H
544
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A A2, A3 and AS and A6 caused injuries with their weapons on
the hands, head, face and other parts of the body of PW2 by
cutting with the weapons. Faizal fell down and PW1 ran away
from the scene. PW1 stated that after s13eing that PW2 and
Faizal were injured, he ran for safety to the house of CW9. The
B door of the house was closed as they were afraid of further
attacks. Since Faizal did not reach the house of CW9, PW1
and son of CW9 went to the place of occurrence. They saw that
Faizal was lying dead in the paddy field. Both of them returned
to the house of CW9 and reported the matter. PW? then got
c the information over the telephone as narrated earlier. He came
to the place of occurrence, and went to the house of PW5. He
had also sustained injuries in the same incident, after Faizal
had been killed and PW2 had been injured. PW5 then took the
police party to the house of CW9 by the same route which had
0 been taken by PW1, PW2 and Faizal. Statement made by PW
1 was recorded as First Information Statement by PW 7 which
is produced as Ex. P1. This was sent to PW8 who recorded
the FIR. The FIR according to PW? was recorded at 00.30 hrs
on 31.1.1994. It was received by the Judicial Magistrate, 1st
Class, Kasargod at 3.30 pm on 31.1.1994. The Trial Court
E notices the submissions of the defence that this gap of 15 hrs
clearly shows that PW1 was not present in the house of CW9
when PW? went to that house. In fact, no First Information
Statement was recorded by PW? at that place. According to
the defence Ex.P10 FIR was registered much later. This gap
F has given an opportunity for the prosecution to manipulate the
case and book innocent persons who were thought to be
inimical with PW5 and his family.
29. Analyzing the aforesaid submissions of the defence,
G the Trial Court notices that Ex.P10 FIR. W3$ received by
Kasargod Magistrate at 3.30 pm on 31. f.94. The distance
from Kumbla Police Station to Kasargod is less than 15
kilometers. They had a duty police constable who comes to
the court to attend the day's cases at Kurnbla Police Station.
H Therefore, there was no difficulty for the Kumbla Police Station
M.C. ALI AND ANR. v. STATE OF KERALA
545
[SURINDER SINGH NIJJAR, J.]
authority to send Ex.P10 and Ex.P1 along with police constable
A
so that they will be received at least by the office of the
Magistrate if not the Magistrate himself before 11 am on that
day. The Trial Court scrutinizes the effect of late receipt of the
FIR by the Court very closely. The prosecution had submitted
that the delay in receiving Ex.P10 FIR was not fatal to the
B
prosecution case as it did not prejudice the accused and it was
not introduced to make any improvements or distort the version
of the occurrence. After appreciating the aforesaid legal
position the Trial Court notices that since it is the case of the
prosecution that PW1 had run away from the place of c
occurrence after witnessing the assault, the action of PW1 and
the evidence of the prosecution needs close scrutiny. Therefore
late receipt of Ex.P10 and P1 assumes importance. The Trial
Court then notices that it is recorded in the inquest report
Ex.P14 that the inquest on the .dead body of Faizal was 0
conducted on 31.1.1994. The inquest commenced at 10 a.m.
and was completed at 12.30 p.m. The query at Sl.No.12 (a) of
the prescribed form is to be filled by PW9 under Section 17 4
Criminal Procedure Code. The query is "while conducting
inquest is any person suspected who and why". In answer to
E
this Ex.P.14, PW9 recorded that "accused are known". The
Trial Court also notices that P.W.9 did not record who the
accused are and why they are suspected.
30. The Trial Court agrees with the suggestions made by
the defence that Ex. P .14 was perhaps prepared prior to Ex. P .1.
F
Vague answer was given to Question 12 (a) of Ex.14, so that
other persons could be added as the accused. Therefore, it
has been held that Ex.P1 has not been registered as alleged
by P.W.7. Another suspicious circumstance was that PW1 had
deposed that Ex.P1 was recorded by himself.
But in cross
G
examination, he conceded that Ex.P1 was not in his own hand
writing and is in that of some other person's hand writing. The
Trial Court, therefore, holds that Ex.P1 was not recorded as
alleged by the prosecution at the place and time recorded both
in Ex.P1 as well as in Ex.P10. The Trial Court also notices that
H
546
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A when PW1 appeared as DW5 after the remand, he depose9
that he had been working for PW5 for th13 last 10 years. He
also deposed that he would do whatever PW5 asked him to
do. However, since the witness had clarified in the reexamination that he did not understand the question, the Trial
B Court ignored the earlier statement.
31. The Trial Court then examines the sequence by which
the names of accused No.7 to 12 have been incorporated.