Judgment:
P. Bhavadasan, J.
1. This is an appeal against acquittal filed by the State.
2. Six persons were sought to be prosecuted for the offences punishable under Sections 143, 147, 324, 307 and 302 read with Section 149 of the Indian Penal Code. After trial they were found not guilty and acquitted of the charges levelled against them.
3. According to the prosecution, the incident took place on 8.2.1998 at about 11.30 p.m. P.W.1 was an abkari business man. On the date of the incident he had gone to the toddy shop, which was leased out to one Krishnan on rent. The shop, which he had leased out to Krishnan was Shop No. 42. When he reached the place, Krishnan was not available. He waited there. At that time, four of the accused persons armed with weapons came there and the first accused asked P.W.1 that since he had informed the Excise officers regarding the distillation of illicit arrack carried on by their employer, he will teach him a lesson. They unleashed an attack on him with weapons. He cried aloud and two among the accused tried to attack him with broken bottles. Somehow one person from the toddy shop informed Ratnakaran, the brother of P.W.1 about the incident, he rushed to the aid of his brother. When Ratnakaran reached near the culvert on the road situate on the eastern side, P.W.1 was being chased by the accused persons. When they found Ratnakaran, the deceased, they turned their wrath on him. He was mercilessly attacked. Ratnakaran fell down on the road. The assailants four in number ran away from the place. A festival was going on in the temple nearby and the police were on duty. Coming to know about the incident, they reached there. With aid of the people, who had gathered there, the injured were removed to hospital. While undergoing treatment, Ratnakaran breathed his last. On getting information, police reached the hospital and recorded Ext.P1 first information statement furnished by P.W.1. P.W.23, the Sub Inspector of Police recorded Ext.P1 first information statement and registered Crime No. 43 of 1998 of Anchalummoodu Police Station as per Ext.P20 FIR. Investigation was taken over by P.W.24. He conducted inquest over the body of Ratnakaran and M.Os. 6 and 7 were seized. He prepared Ext.P22 scene mahazar and seized M.Os. 8 to 10 from the scene of occurrence. Exts. P7, P8, P9, P10, P24, P29 and P30 are the various mahazars prepared by P.W.24 regarding recovery of various items. After arresting the fourth accused he got the fourth accused examined through P.W.18. Ext.P18 is the wound certificate. The body of Ratnakaran was sent for autopsy. P.W.16 conducted autopsy over the body of Ratnakaran and furnished Ext.P15 report. Ext.P16 is the connected chemical analysis report. P.W.24 completed the investigation and laid charge before court.
4. JFCM-I, Kollam, before whom final report was filed, took cognizance of the offences. On appearance of the accused before the said court, all legal formalities were complied with. The said court found that the offences are exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Kollam under Section 209 Cr.P.C.. The said court made over the case to Additional Sessions Court, Kollam for trial and disposal.
5. The additional Sessions Court, on receipt of records, issued summons to the accused and they entered appearance. After hearing both sides, charge was framed for the offences punishable under Sections 143, 147, 324, 307 and 302 read with Section 149 IPC. The accused pleaded not guilty and claimed to be tried. Prosecution therefore examined P.Ws. 1 to 24 and Exts.P1 to P33 marked. M.Os. 1 to 11 were identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 of the Criminal Procedure Code. They denied all the incriminating circumstances brought out against them and maintained that they were innocent. The court below being satisfied that the accused could not be acquitted under Section 232 Cr.P.C., asked them to enter on their defence. The defence had, except for having marked Exts.D1 to D8, chose to adduce no other evidence.
6. On an appreciation of the evidence in the case, the court below found that the prosecution had miserably failed to establish the case beyond reasonable doubt and therefore acquitted the accused. The said acquittal is challenged in this appeal. The question that arises for consideration is whether the court below has erred in acquitting the accused.
7. The prosecution sought to prove its case through the testimony of P.Ws. 1 and 2 and the various recoveries made by the investigating officer, which according to the prosecution falls within the ambit of Section 27 of the Indian Evidence Act. Reliance was also placed on the fact that one of the accused was injured and that was unexplained. The court below found that it was not safe to accept the testimony of P.Ws.1 and 2 and that even assuming that the recoveries were made as claimed by the prosecution, that by itself was insufficient to hold the accused guilty.
8. Learned Public Prosecutor was severe on the lower court and pointed out that the court below was not justified at all in discarding the evidence of P.Ws. 1 and 2. P.Ws.1 and two are injured witness and their evidence is entitled to considerable weight. The court below was not justified in placing undue significance on the issue regarding the motive. It is trite, according to the learned Public Prosecutor, that when there is direct evidence regarding the commission of the act, the motive is irrelevant. May be there are some slight inconsistencies and contradictions between the evidence of P.Ws. 1 and 2. But they are trivial in nature and could not affect the prosecution case at all. The fact remains that Ratnakaran was no more and he died due to the injuries suffered at the hands of the accused. Learned Public Prosecutor emphasized that on an impartial consideration of the evidence in the case, it can be found that the prosecution has succeeded in establishing the acts of the accused.
9. Countering the above submissions, the learned Counsel appearing for the respondents in this appeal pointed out that the court below has meticulously analysed the evidence and found it to be incompatible to each other. The evidence of P.Ws.1 and 2 are inconsistent and contradictory and do not inspire confidence in the mind of the court. The court found that both the witnesses were not speaking the truth and the prosecution had hidden a lot from the court. On no point there was any consistency or uniformity in the evidence of witnesses and it is very evident that the incident had not occurred as alleged by the prosecution. There are several versions regarding the incident and it was in the light of the above facts that the court below was constrained to hold that the prosecution has failed to establish its case. Learned Counsel was of the opinion that even assuming that motive may not be decisive in a case of the present nature, it cannot be said to be irrelevant in the facts and circumstances of this case. A definite motive had been alleged and that stood disproved. Having done so, the prosecution cannot now turn round and say that the motive is irrelevant. Merely because two injured persons had given evidence, it does not mean that the prosecution case is true. If inherently the evidence is weak and unsatisfactory, the court is perfectly justified in discarding the same. Learned Counsel invited the attention of this Court to the fact that the court below has considered the evidence in considerable detail and had arrived at a conclusion.
10. The defence counsel also cautioned this Court that as an appellate court, though the court has ample power to re- appreciate and re-evaluate the evidence in the case, the appellate court should be very slow in upsetting the order of acquittal. Learned Counsel stressed that unless it is found that the order of acquittal is perverse, unreasonable and unjustifiable on the basis of the materials on record, it may not be proper to interfere. It is also pointed out that if two views are possible, the one taken by the lower court should prevail.
11. Before going into the evaluation of evidence in the case in an attempt to find out whether the conclusions of the court below are proper or improper, it will be useful to ascertain the power of the appellate court while dealing with an appeal against acquittal.
12. It will be beneficial to refer to the statutory provision and precedence on the point.
13. Section 378 of the Code of Criminal Procedure deals with the right of appeal. Section 385 deals with the procedures to be followed while hearing the appeals which are not summarily dismissed, and Section 386 deals with the power of the appellate court while dealing with an appeal. For the present purpose, it will be sufficient to refer to Section 386 of the Code alone, which reads as follows:
386. Powers of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may -
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re0tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so a to enhance the same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(3) make any amendment or any consequential or incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.
14. A reading of the provision relating to appeal clearly shows that the provision confer unfettered and full power to the appellate court to review the evidence. The Code places no limitation on this power. On a re-appreciation of the evidence, the appellate court is entitled to come to its own conclusion. But self imposed constrains restrict the scope of interference in the case of acquittal due to various reasons.
15. The power to re-appreciate and re-evaluate the evidence and the scope of interference with an order of acquittal have come up for consideration before various courts on innumerable number of occasions. It is unnecessary to refer all the decisions on this point.
16. In Ramachandra Reddy v. Public Prosecutor : AIR 1976 SC 1994, it was held as follows:
Mr. P. Rama Reddy for the State submitted that Ext.P2 was corroborated by the presence of at least accusd No. 1 near the petrol pump slightly before the occurrence took place. The presence of accused No. 1 in Tada Bazar near his village is not completely inconsistent with his guilt and being a resident of the village close by his presence in the Bazar can be explained on account of various reasons. It was then submitted that the accused had been absconding. The accused, however, surrendered within 14 days and this is not a circumstance which can outweigh the effect of the suspicious circumstances under which the dying declaration was made. It seems to us that as the deceased did not know the names of the appellants nor did he know them from before he was not able to identify his assailants and the names were supplied by P.W.2 his cousin just before the dying declaration was made. Putting the prosecution case at the highest, there can be no doubt that the view taken by the learned Sessions Judge that the dying declaration did not amount to a truthful disclosure cannot be said t be against the weight of the evidence on the record and even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for the reversing the order of acquittal. In Ram Jag v. State of U.P. : AIR 1974 SC 606 this Court observed as follows:Such regard and slowness must find their reflection in the appellate judgment, which can only be if the appellate court deals with the principal reasons that influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a contrary view of the evidence. It is implicit in this judicial process that if two views of the evidence are reasonably possible, the finding of acquittal ought to be disturbed.' Thus in the instant case as two views were reasonably possible and therefore the High Court was in error in disturbing the order of acquittal passed by the Sessions Judge.
17. In the decision reported in Hari Ram v. State of Rajasthan AIR 2000 SC 1647, it was held as follows:
It is too well settled that the power of the High Court while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re-appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would be sitting as a trial court, taken the other law. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise there would be gross miscarriage of justice.
18. In the decision reported in State of Goa v. Sanjay Thakran : (2007) 3 SCC 755, it was held as follows:
From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of materials placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.
19. In the decision reported in Ghurey Lal v. State of U.P. : (2008) 10 SCC 450, it was held as follows:
The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due to proper weight and consideration must be given to the trial court's decision . This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
In the light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal;
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has 'very substantial and compelling reasons' for doing so.
A number of instances arise in which the appellate court would have 'very substantial and compelling reasons' to discard the trial court's decision. 'Very substantial and compelling reasons' exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in 'grave miscarriage of justice'.
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.
20. In the decision reported in Hem Raj v. State of Punjab : AIR 2003 SC 4259, it was held as follows:
In this state of the evidence on record,we find that the view taken by the trial Court is also a possible reasonable view of the evidence on record. The evidence adduced by the prosecution is rather inconsistent and creates a serious doubt about the truthfulness of the prosecution case. Even if it may be possible to take a different view, we cannot say that the view taken by the trial Court is not a reasonable view of the evidence on record. It is well settled that if on the basis of the same evidence two views are reasonably possible and the trial Court takes the view in favour of the accused, the appellate Court, in an appeal against acquittal, will not be justified in reversing the order of acquittal, unless it comes to the conclusion that the view taken by the trial Court was wholly unreasonable or perverse and it was not possible to take the view in favour of the accused on the basis of evidence on record.
21. On a reading of the above decisions, the following principles emerge. They are:
i) If it is found that the view of the trial Judge regarding the credibility of the witnesses is unsustainable both on facts and in law, then interference will be justified.
ii) There is a presumption of innocence in favour of the accused, and it is further fortified by the acquittal in trial.
iii) The accused is entitled to the benefit of doubt and the defence can insist that the prosecution must prove its case beyond reasonable doubt.
iv) The appellate court will be slow in disturbing a finding of fact arrived by a trial Judge, who had the advantage of seeing the witnesses and their demeanour. Bearing the above principles in mind, an attempt shall now be made to review and re-evaluate the evidence with the object to ascertain whether the order of acquittal passed by the court below needs to be interfered with in the interest of justice.
22. As already noticed, the prosecution mainly based its case on the oral testimony of P.Ws. 1 and 2. P.W.1 is one of the injured apart from two other injured, namely P.W.2 and the deceased, late Ratnakaran, who is the elder brother of P.W.1. The deceased was settled at Kozhikode. During the relevant time as the festival was going on in the local temple, Ratnakaran and his family had come to participate in the same.
23. Before going into the oral evidence, the cause of death of Ratnakaran may be ascertained. That Ratnakaran suffered injuries at the hands of some assailants is a fact which cannot be disputed. The evidence of P.Ws. 1 and 2 would indicate that Ratnakaran suffered injuries at the hands of some assailants. Ext.P21 inquest report prepared by the investigating officer, namely, PW.24, shows the injuries found on the body of Ratnakaran. In Ext.P15 postmortem report prepared by P.W.16, the Police Surgeon gives the cause of death of Ratnakaran. According to P.W.16, the death of Ratnakaran was due to injury No. 3 sustained on his chest. The Doctor opined that injury No. 3 was fatal and sufficient in the ordinary course of nature to cause death. Considerable evidence is therefore available to show that the death of Ratnakaran was homicidal.
24. The next question that arises for consideration is whether the prosecution has succeeded in establishing that it was the accused persons, who had inflicted the injuries on P.Ws.1, 2 and late Ratnakaran.
25. Evidence of P.W. 1 discloses that the incident had taken place on 8.2.1998 late in the night. He claims to have suffered injuries in the incident. He is the author of Ext.P1 first information statement. Festival was going on in Velayudha Mangalam Temple, Kuppana. P.W.1's brother late Ratnakaran, who was residing at Kozhikode had come down to attend the temple festival. P.W.1 says that Toddy Shop No. 42 was being run by one Krishnan on the basis of a lease deed executed in favour of P.W.1. Four months' rent was due. According to P.W.1 Krishnan asked him to come over to the shop on the date of the incident after 11 p.m. P.W.1 says that when he went to the temple to attend the festival, he happened to see P.W.3 and P.W.3 accompanied him to the toddy shop. When P.Ws. 1 and 3 reached the toddy shop, P.W.1 found that Krishnan was not available, but one Sasiraj was in the shop. P.W.1 asked P.W.3 to wait outside and talked to Sasiraj. Then he sensed that a few people had come to the toddy shop and they were the accused persons. They entered the shop and as soon as they found him, P.W.1 would say that, the accused told him that they were in search of him, for, it was he, who was responsible for the raid conducted by the excise officers in the premises of their employer, namely, Chithan Muthalali. P.W.1 says that the first accused wielded a sword at him and it was warded off by him resulting in an injury on his right hand. He was again attacked by the first accused. P.W.1 sustained injuries on his fingers. Meanwhile, accused No. 2 had also attacked him with a sword. P.W.1 was fortunate to avoid those attacks. P.W.1 says that he ran to the east to escape. He was followed by the assailants. When he reached the main road on the eastern side, he saw his brother coming from the northern side. When late Ratnakaran, the brother of P.W.1, interfered to save P.W.1, P.W.1 would say that the first accused attacked Ratnakaran with a sword. P.W.1 would further say that it was with M.O.1 his brother was attacked by the first accused. That weapon hit Ratnakaran on the chest resulting in bleeding injury. He fell down. He would then depose that thereafter the accused mercilessly inflicted injuries on him. P.W.1 says that people who had gathered at the spot with the aid of police removed him and his brother to the hospital. He was admitted in the hospital. However, his bother was pronounced dead. According to P.W.1, the reason for the attack was that the accused believed that it was he who was instrumental in giving information to the excise officers, which resulted in a raid at the premises of Chithan Muthalali. The accused persons are his workers. P.W.1 says that the accused also believed that late Ratnakaran was helping him financially and that was the reason for the attack on him.
26. P.W.2 is another injured witness. Both the injured and the accused are familiar to him. He claimed that he had gone to meet P.W.1in the temple premises at the relevant time on the relevant date. Coming to know that P.W.1 had gone to the toddy shop, he went there to meet him. He saw Mohanan, P.W.3 standing outside. According to this witness six persons reached the place. P.W.1 was talking to Krishnan. He waited outside along with Mohanan. Then the six accused persons came there and they dragged P.W.1 out of the toddy shop. The first accused then attacked him with a sword. The attacks were warded off by him. But he suffered injuries on his hands. This witness also speaks about the acts committed by the various accused persons. In order to escape from the attack of the accused persons P.W.2 would say that P.W.1 ran away from the place. According to him, P.W.1 ran towards the temple. He claims to be one of the persons, who had gone to inform Ratnakaran about the incident. P.W.2 would say that late Ratnakaran rushed to the aid of his brother, namely P.W.1. When Ratnakaran reached the place, he was attacked by the first accused, who inflicted a fatal injury on the chest of Ratnakaran. He speaks about the acts committed by other accused persons also. He also speaks about the various weapons carried by the accused persons.
27. As already noticed, the evidence of P.Ws. 1 and 2 are the main items of evidence relied on by the prosecution. There are two parts of the incident. First one is at the toddy shop situate in the property owned by P.W.1 and the second incident near the culvert on the main road on the eastern side. The earliest version of the incident is available from Ext.P1 first information statement, of which P.W.1 is the author. At the time of giving Ext.P1 first information statement he named only four assailants. He was definite that only four persons were involved. At the time of evidence, however, the number of assailants increased to 6. His claim that the shop was taken on lease by Vijayan was not strictly proved. No documents whatsoever were produced to show that the lease is in force. While P.W.1 would say that when he reached the toddy shop, Krishnan was not available in the toddy shop and he had waited for Krishnan. P.W.2 would say otherwise. Going by the evidence of P.W.2 when he reached the place P.W.1 and Krishnan were in conversation. The motive alleged was that in the previous year a raid was conducted in the liquor shop at Anchalumoodu and the accused pleaded that it was at the instance of P.W.1 in the case. However, the evidence discloses that Ratnakaran had shifted his residence eleven years ago. P.W.1 claimed that Ext.P33 was the complaint filed by him regarding the threat meted out to him from the accused persons. A perusal of Ext.P33 shows that it is undated. There is nothing to indicate that the complaint was ever sent or received by the concerned persons. The accused persons questioned P.W.1 in regard to the said complaint. But he was unable to give satisfactory answers. P.W.19, the officer, who had dealt with the complaint was also unable to convince the court that there is a genuine complaint.
28. The earlier version given by P.W.1 is that on 8.2.1998 he was attacked by four persons. The lower court has noticed that there are several infirmities in the first information statement regarding the father's name and address of some of the accused persons. The lower court recalled the fact that according to PW.1 the accused were very familiar to him and if that be so such mistakes could not have arisen.
29. May be that the toddy shop was situate in the property owned by P.W.1. It is important to notice that there were no signs of any scuffle or struggle at the place. The court below also found that there was considerable improvement and developments made by P.W.1 at the time of his evidence. It is unnecessary to repeat them. The advent of Ratnakaran and the way in which he was attacked as projected, according to lower court does not inspire confidence.
30. Learned Counsel appearing for the defence places considerable reliance on Ext.P6 plan and pointed out that the story of Ratnakaran rushing to the aid of P.W.1 was a cock and bull story.
31. Even as admitted by the prosecution, the incident originated in the toddy shop which is situate far away from the temple where the festival was going on. There was also no dispute regarding the fact that Ratnakaran was in the temple participating in the festival at the relevant time. Going by Ext.P6 plan, there is nothing to show that there is any proper access from the toddy shop to the main road on the eastern side. In fact there is a water channel on the southern side of the toddy shop. There was an effort made by the learned Public Prosecutor to point out that there is enough space on the banks of the canal on its northern side for persons to walk along and reach the main road on the eastern side. But neither Ext.P6 plan nor Ext.P22 scene mahazar show any such way, which means that Ratnakaran had to cover a lot of distance from the temple to reach the place of incident. The court below has adverted to this aspect and came to the conclusion that it is rather inconceivable that Ratnakaran had come to the place of incident as alleged by the prosecution.
32. The court below has also found that M.O.1 weapon, which is said to have been recovered on the basis of the confession statement by the first accused did not contain blood stains at all. The lower court also noticed that quite surprisingly none of the weapons alleged to have been used by the accused were sent for chemical analysis. No justifiable reasons were also furnished by the investigating officer for the lacuna. Even the blood stained earth said to have been collected from the spot was not sent for chemical examination. It further adds to the agony of the prosecution. Further the medical evidence is also not in favour of the prosecution. It appears that there was difference of opinion between the doctors regarding the injuries said to have been inflicted with M.O.1 weapon. While P.W.15, the doctor initially examined Rantakaran was of the opinion that M.O.1 would only produce a straight wound. P.W.16 differs on this aspect. According to him, it is not always that M.O.1 weapon will cause a straight wound.
33. While analysing the evidence of P.W.1, the court below has found that the initial version was involvement of four persons alone. One may recall that the incident commenced at toddy shop No. 42, which P.W.1 claimed was given by him on rent to one Krishnan. The first version of P.W.1 was that he was attacked by Kunjumon, Biju, Suni and another person, who could be identified by sight. His further version was that he was attacked with swords and pieces of broken bottles. It is interesting to note that the evidence of the Circle Inspector of Police, P.W.24 shows that Kunjumon named by P.W.1 could not be located. There is also difference regarding the address and name of the parents given by P.W.1 regarding the other accused. According to the prosecution, a good portion of the incident had taken place at the toddy shop. But no blood stains were seen at that place. The evidence of P.W.1 is to the effect that receiving the injury at the toddy shop, he began to bleed profusely. At the time of giving evidence P.W.1 increased the number of assailants to six. There was also a confusion caused regarding the identity of accused Nos. 1 and 2 during investigation. All this led the court below to suspect the prosecution case. P.Ws. 4, 5 and 6 did not support the prosecution and they denied the suggestion that they were conducting toddy shop at Kuppana. It is also significant to notice that neither Vijayan nor Krishnan was examined to justify the claims made by P.W.1.
34. It is also interesting to note that P.W.24 claims to have seized the shirt said to have been worn by Rantakaran at the time of inquest. At that time, according to P.W.24, he was given to understand that the dhoti worn by Rantakaran was kept in his house. Ext.P21 inquest report discloses the seizure of shirt by the investigating officer. However, the description in Ext.P21 did not tally with the shirt produced in court. This anomaly also made the court suspicious about the prosecution case. The evidence regarding recovery of weapon also came up for adverse comments at the hands of the court below. It was the above facts and circumstances, which led the court below to hold that the prosecution has not succeeded in proving the case beyond reasonable doubt against the accused persons.
As already noticed, interference with an acquittal will be called for in a case where it is found that the finding of the court below is perverse and it is totally unjustified going by the records. If two views are possible, then, it is well settled that the view taken by the court below has to be upheld. On a discussion of the evidence, it can be seen that the view taken by the court below is a plausible one. If that be so, no interference is called for in this appeal.
This appeal is without merits and it is accordingly dismissed confirming the decision of the court below.