Padmanabhan, J.

1. In Sessions Case No. 61 of 1982 before the Sessions Judge, Alleppey, there were 15 accused. First accused died before trial. Others were tried for offences punishable under Sections 143, 147, 148, 149, 286, 452, 323, 324, 326, 436 and 302 of the Indian Penal Code and acquitted of all the offences. State is challenging the acquittal. After the appeal, sixth accused also died and the appeal against him abated. We are, therefore, concerned only with the remaining accused.

2. The occurrence took place during the night in between 9th November 1981 and 10th November 1981 in Thekkekara at Mankombu in Kuttanad. Victims are Marxist and assailants are R.S.S. people between whom there was political rivalry in the locality. Murder of one Sivan, an R.S.S. worker, allegedly by the Marxists sometime before the incident, flared up the animosity. This is the motive alleged.

3. At about 1.00 a.m. the accused formed themselves into an unlawful assembly with the common object of murdering Thankappan, a Marxist worker, assaulting Marxist sympathisers, including P.Ws. 4 to 6, and committing arson and other destructions to the properties of Marxists on account of enmity. Accused 1 and 2 possessed choppers, accused 3 and 5 sword-sticks, fourth accused an axe and a dandu, eight accused a tin containing petrol, 12th accused a bag with country crackers, 13th accused an iron rod and Ors. dandus. Armed with these weapons, they committed rioting. All of them were wearing khaki shorts and white banians, the usual uniform of R.S.S.

4. They first broke open the house-cum-shop of P.W. 4 Rajappan. Second accused cut him with chopper on his head. Accused 3 and 5 inflicted several cut injuries on his servant, P.W. 5 Viswambharan, with sword-sticks. When P.W. 6, wife of P.W. 4, intervened, she was kicked in the abdomen and various movables inside the house were destroyed and the house set fire to. Then they proceeded to the nearby bunk shop of Thankappan. It was set fire to. 12th accused threw crackers into the fire. Then they trespassed into the neighbouring Taluk Committee Office of the C.P.I. (M). Accused 9 and 10 kicked open the front door. All entered. Glass windows were broken. Fan and iron chairs were damaged. Petrol was poured and the building set fire to Crackers were thrown.

5. All of them then proceeded to the house of Thankappan. Buildling was set fire to after pouring petrol. Thankappan and his wife and children got out and Thankappan attempted to extinguish the fire. First accused cut Thankappan on his shoulder with a chopper. When he ran to the south, all of them chased him calling that he should be caught and his head chopped off. He entered the northern Court-yard of Kinamkarithara house, where he was caught. Fourth accused cut at his neck with an axe. When he fell down, accused 1 to 3 and 5 inflicted several cut injuries. Then there was silence after which, first accused beheaded him. There was again silence after which, first accused took the chopped head and all went in a procession, first accused calling Bhadrakali and saying that their vow was fulfilled.

6. They then went to the shop-cum-residence of P.W. 11 Natarajan, set fire to his house and threw crackers. After ascertaining from him that his co-brother and neighbour P.W. 10 Anirudhan is not in the house, they broke the windows and set fire to his building also. Next target was the Champakulam office of the C.P.I. (M), which was also set fire to by pouring petrol and throwing crackers. They then proceeded with the head of Thankappan and placed it on the south eastern side of the Thekkekara bridge at Mankombu, where Sivan is said to have been murdered. Then they went to the boat-shed of the toddy tappers union and set fire to their boat by using petrol and explosives. This is the brief account of the prosecution version of the incident.

7. Getting an S.O.S. message from P.W. 2 over phone, the Circle Inspector, P.W. 41, proceeded in a boat with the available police personnel after conveying information to the police station over phone. Finding the boat burning, they tried to extinguish the fire. By that time, the Sub Inspector, P.W. 39, came and joined them on getting information. They went to some of the scenes of incident. Nobody was prepared to divulge any useful information out of fear. Since law and order had to be maintained and further crimes prevented, P.W. 41 went for that purpose directing P.W. 39 to record a statement from some person who saw the incident and register a case. P.W. 39 went to the local office of the C.P.I. (M) and recorded Ext. P-1 from P.W. 1, who was there at about 4.00 a.m. He then registered the case, which was investigated by the Deputy Superintendent of Police, P.W. 40.

8. Defence of the accused is denial of involvement and false implication by leaders of the C.P.I. (M) after deliberations on account of political animosity when the real culprits were not known to anybody.

9. Prosecution evidence covers 41 witnesses, 87 documents and M.Os. 1 to 24(b). Exts. D-1 to D-12 are the defence documents. There is no defence witness.

10. In the light of the prosecution evidence and the arguments advanced by both sides, certain facts clearly emerge. The injured, the deceased and all other victims were either members or workers or sympathisers of C.P.I. (M) and the assailants, who were members of an unlawful assembly, were all belonging to R.S.S. They were armed with the weapons mentioned earlier and were dressed in khaki shorts and white banians. Damages to the buildings and movables by fire, crackers and physical force are all there. That is what the evidence of the witnesses, including hostile witnesses, and the police documents as well as the depositions of P.Ws. 39, 40 and 41 clearly indicate. The fact that Thankappan had a brutal homicidal death, in which his head and limbs were cut off and the head placed near the bridge, is also clear. That is further clear from the evidence of P.W. 31, who conducted autopsy and prepared Ext. P-60 post-mortem certificate. It was P.W. 29 who examined P.Ws. 4, 5 and 6 and issued Exts. P-54, P-55 and P-56 wound certificates. These items of evidence also fit in with the prosecution case and its evidence. The items of motive alleged by the prosecution are also amply established by the evidence. Therefore, we do not propose to go into the details of these aspects or the items of evidence concerning them because we feel that it is an unnecessary exercise. It is clear that there was an unlawful assembly of R.S.S. workers or sympathisers actuated by the above political motive and the common object of the assembly was perpetration of the crimes mentioned above. It is also beyond doubt that the unlawful assembly consisted of about fifteen persons and they were responsible for perpetration of all the crimes in furtherance of the common object of the assembly. The evidence do not warrant acceptance of the defence suggestion that there is the possibility of different groups having committed offences at different places.

11. We are living in a country which is governed by rule of law. Respect for law and maintenance of law and order are necessary for our democracy to exist and thrive and to maintain an orderly society. Nobody should be allowed to take law into their own hands and unbalance the order of society. It is the duty of the State, including the judicial machinery, to see that life, liberty and property of citizens are protected from law-less invasions. Nobody should go under the impression that, by an organised force, they can do anything in the dead of night and go scot-free by creating an atmosphere of terror and confusion.

12. After the incident, all the accused were absconding. First accused was arrested on 18th November 1981. On the basis of the information given by him, M.O. 3 chopper was recovered by P.W. 40 under Ext. P-70 mahazar. Accused 2 and 3 were arrested on 19th November 1981. On the disclosure statement given by the second accused, one chopper was recovered under Ext. P-71. M.O. 5 sword-stick was recovered under Ext. P-72 mahazar on the information given by the third accused. Accused 4, 8, 9 and 11 surrendered on 26th November 1981. Fourth accused produced M.O. 6 axe and M.O. 1 stick. They were seized under Ext. P-64. One of the sticks in M.O. 1 series produced by the 9th accused was seized under Ext. P-65 mahazar. 11th accused produced Anr. stick in M.O. 1 series and it was recovered under Ext. P-66 mahazar. Accused 5 and 15 were arrested on 4th December 1981. M.O. 4 sword-stick was recovered under Ext. P-62 mahazar on the basis of the information given by the fifth accused. One stick in M.O. 1 series was recovered on the information given by the 15th accused under Ext. P-63 mahazar. 14th accused was arrested on 11th December 1981 and accused 6 and 7 on 4th January 1982. 10th accused surrendered on 6th January 1982.

13. P.Ws. 4, 5, 6, 9, 12, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 27, 34, 37 and 38 turned hostile, evidently out of influence or fear of consequences. It is clear from the prosecution evidence, including the version given by P.W. 41, that independent witnesses and even some of the C.P.I. (M) sympathisers were not prepared to divulge informations fearing that their heads also will be chopped off. This state of affairs alone explains why even the injured like P.Ws. 4 to 6 also turned hostile. P.W. 4 had an added reason that the first accused was his relative. P.W. 8, who gave evidence in support of the prosecution, retraced his steps when he was recalled and further cross examined. That is also evidently under influence or fear. It will be a sorry state of affairs if the process of law could be successfully prevented by terrorism. The available evidence will have to be understood and appreciated in this background.

14. Learned Public Prosecutor is of opinion that the prosecuting and investigating agencies and the witnesses, who supported the prosecution, did not get a fair-deal at the hands of the Sessions Judge. The following are some of the facts pointed out by him in support of his complaint. The way in which the evidence of P.W. 13 was recorded and how it was used in Para 54 of the judgment to discredit him and criticise the conduct of the case by the Public Prosecutor bear ample testimony to the complaint. In the deposition of P.W. 39 Sub Inspector, an innocent mistake, which was immediately corrected with an apology, was re-produced. In Anr. portion when he answered a question the Sessions Judge asked him to answer again after perusing the records, thereby meaning that he was not satisfied with the answer. An innocent and insignificant mistake immediately corrected by P.W. 1 also finds a place in his deposition. P.W. 3 said that all the accused are well-known persons in the locality. He supported that statement by saying that it is because they are R.S.S. workers. Before that answer was completed, a query with a question mark was recorded by the Sessions Judge by way of interlineation as to how he knew that they are well-known people. This is an unusual phenomenon in the recording of depositions. In paragraphs 28 and 29 of the judgment, the Sessions Judge said that the information over phone received by P.W. 41 from P.W. 2 was "sufficiently detailed" to be treated as first information so that Ext. P-1 is only a statement recorded under Section 161(3). In para 30, the investigating agency was held guilty of suppression of that information. In fact, what is clear from the depositions of P.Ws. 2 and 41 is that only an S.O.S. phone message was received from P.W. 2 for help when the crime was in progress without mentioning any detail. There is no question of any suppression involved. At the same time, in para 31 of the judgment, the identification of the assailants by P.W. 2 was disbelieved for the reason that in the phone message these details were not given.

15. The only two points formulated by the Sessions Judge are (i) whether Thankappan was murdered, and (ii) whether the accused formed themselves into an unlawful assembly armed with deadly weapons and did the acts mentioned above in furtherance of the common object. Even then, the Sessions Judge did not consider the motive, the unlawful assembly or its common object. The common bondage, which prompted the attack, and the identity of the assailants as R.S.S. people were also not considered. Instead, the Sesslions Judge assumed that the accused were being tried without the aid of vicarious liability for their individual acts. He forgot the fact that if the unlawful assembly, common object and identity of the members are established, proof of individual overt acts by any particular member is irrelevant. Against the weight of the evidence and the undisputed and proved facts, he mentioned, in para 24 of the judgment, that there is absolutely no evidence in support of many of the acts alleged by the prosecution. The witnesses, who supported the prosecution, were unjustifiably disbelieved solely on the basis of political partisanship coupled with discrepancies and contradictions by a process of erratic analysts ignoring the fact that their evidence find support from realities proved in the case. Ignoring the fact that independent testimony was attempted and failed, the prosecution was blamed for not examining available independent neighbours. Criticisms, not justified by the evidence, were made against the investigating and prosecuting agencies. Unfair comments were made against witnesses. P.W. 8 was actually re-called by the defence for further cross examination presumably after getting an assurance from him to support the defence. But, in Para 90, the Public Prosecutor was blamed as the person responsible for the further examination of P.W. 8 to annihilate the prosecution case. In spite of the evidence of even the hostile witnesses that attempts were made to put out the fire by pouring water and otherwise, the evidence in that respect was branded as false. See Para 58 of the judgment. Unfair attempts were made to disbelieve witnesses for flimsy and incorrect reasons not supported by the evidence. In para 79 of the judgment, the prosecution was unjustifiably and incorrectly blamed for not examining any independent witness ignoring the depositions of P.W. 15 and Ors. . The presence of an electric light in the scene of murder was wrongly branded in paragraphs 84 and 85 as suspicious. Under imaginary assumptions, in Para 87, it was found that P.W. 8 could not have seen the murder.

16. Pages 43 to 47 of the printed judgment were devoted solely for criticising the investigating agency in an attempt to reject the prosecution case and its evidence. The evidence is that P.W. 41 went to the scene with the available police personnel on getting information over phone from P.W. 2 after giving intimation to the police station. When he was engaged in existinguishing the fire of the boat, P.W. 39 also reached there pursuant to the information conveyed at his residence by a constable. After unsuccessful attempts at one or two scenes of occurrence to get any useful information, P.W. 41 went ahead with law and order duty in an attempt to prevent further crimes also after directing P.W. 39 to register a case after recording information from anyone who saw the incident. He accordingly went to the local C.P.I. (M) office and recorded the statement of P.W. 1. Thereafter he went to the police station and registered the case. He took charge of Ext. P-87 general diary in which he made an entry that crime was seen and information recorded while he was on patrol duty. This entry was the fnain reason to disbelieve him because in the box he said that he got information at his residence. Another illegality in investigation found out by the Sessions Judge was the omission of P.W. 39 to note at that time whether the injured included men and women. Another reason assigned as surprising is the statement of the Circle Inspector that he posted constables at some places to guard the scene while the general diary entry is that P.W. 39 Sub Inspector posted constables. While the Sub Inspector said that he did not go to the scene where the head was found, the general diary entry shows he accompanied the Circle Inspector to that place. For these reasons, the Sessions Judge said that P.W. 39 was not givting true versions. Certain omissions regarding details of identification of the accused in the informations prompted the Sessions Judge to conclude that the identities of the accused were arbitrarily fixed. Certain omissions in the informations conveyed by witnesses as spoken to by P.W. 40 prompted the Sessions Judge at page 47 to say that P.W. 40 distributed the overt acts to the accused in the charge without any evidentiary basis but at his sweet will and pleasure. The explanation of P.W. 40 that all the accused are prominent R.S.S. workers in the locality and there was no doubt regarding their identity by names alone even from the inception was rejected as flimsy. The Sessions Judge overlooked the fact that under Section 125 of the Evidence Act, P.W. 40 was not obliged to divulge the source of information and that the informations relied on by him at page 47 of the judgment are prohibited under Section 162 of the Code of Criminal Procedure except by way of contradicting a prosecution witness. So also, the Sessions Judge forgot that allegations in the charge could also be on the basis of statements made by the accused and other informations. We are not in a position to rejcct these complaints as baseless. We feel that the Sessions Judge was not justified to any extent in his approach towards the loyal prosecution witnesses as well as the prosecuting and investigating agencies.

17. Points in favour of the prosecution were ignored and flimsy and imaginary grounds were highlighted in favour of the defence. We are not satisfied with the approach made by the Sessions Judge. Citing the decisions in Kutty alias Devassia v. State of Kerala 1984 K.L.T. 305 and 1976 K.L.T. 57, the Sessions Judge proceeded as if the standard of proof required in such revolting and cruel crimes is higher than ordinary. That does not appear to be the correct legal position. In cases like the present one, where crimes are committed in the dead of night under horrifying circumstances and witnesses were terrorised from divulging informations, if ordinary standard of proof is found insufficient it will be a travesty of justice. If that be so, such crimes could never come to light and the interest of society will suffer. What is required in such cases is only that, in appreciating the evidence, there should be a higher standard of care to see that the unconscious or involuntary bias that is possible on account ol the revolting nature of the crime is excluded. In other words, care should be taken to see that the shocking nature of the crime might not induce an instinctive reaction against dispassionate juducial scrutiny of the facts and law. The evidence will have to be considered objectively, dispassionately and in a cool manner detached from the heinousness of the crime and the Court should not be carried away either by emotuon or by other considerations. In appreciating the evidence, the Court should call to its aid its practical experience in life, ordinary course of human conduct, the probabilities of the case and the naturalness of the versions of witnesses. Consistency and corroboration alone should not be the crateria. The evidence will have to be tested on the touch-stones of human probabilities, ordinary experience in life, reliability and naturalness. The connection of the evidence to other proved facts also will have to be looked into. The circumstances under which the crume was committed, the possibility of better evidence and the competency of the witnesses also are some of the factors. There must be a practical and realistic approach. Insistence on an impossibility may not be conducive to justice. Law never insists on such a standard of proof.

18. The Sessions Judge also cited and followed certain decisions as guidelines in appreciating the evidence. They are decisions dealing with appreciation of evidence in cases involving crimes committed under political and communal backgrounds. In such cases, Courts should be cautious about false implications. Evidence will have to be analysed carefully to avoid falsities and mistakes. The tendancy to rope in innocent persons by mistake or purposely will have to be guarded against. Versions of interested and inimical witnesses should be carefully considered on the touch stones of reliability and probability. That does not mean that evidence from interested and inimical sources should be rejected on that technical ground alone especially when it is clear from the circumstances, as in this case, that independent evudence is impossible. Disinterested neighbours, who could have given useful information, are withdrawing from the scene presumably out of fear. That is quite natural also. We find that even persons who are otherwise identifying with the C.P.I. (M) and the injured who suffered torture also backed out ana turned hostile. The only persons prepared to support the prosecution are those identifying with the C.P.I. (M). They are probable and competent witnesses. They might have shown some tendencies to hide their identity in order to give credibility to their versions. So also, they might have given exaggerated versions. For that reason, their evidence cannot be rejected as a whole. We must find out the truth from it and accept the same, if acceptable. That is necessary in the ends of justice.

19. The public are generally reluctant to come forward to depose before Court. The prosecution evidence cannot, therefore, be rejected merely for want of independent, corroboration or on account of falsity stated or embroidery added. It is also not correct to reject the prosecution case for the reason that all witnesses were not examined. If the case is found otherwise true want of independent corroboration which is impossible should not deter the Court. If there is a ring of truth in the main, the case should not be rejected. It is necessary to remember that a judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform (State of U.P. v. Anil Singh : A.I.R. 1988 S.C. 1998. These principles were completely ignored by the Sessions Judge in the discharge of his duties. He made an one-sided approach on legal and factual questions at the risk of justice suffering. We are, therefore, not in a position to reject the argument that the conclusions came first and the reasonings were thought of only later.

20. As the earliest version of the incident, the first information statement is a valuable piece of evidence in a criminal trial. It has to be promptly recorded in order to avoid embellishments and concoctions by deliberations. When the statement is given by an interested occurrence witness, its contents also assume importance. Any omission or addition on a vital aspect may have to be viewed seriously depending on facts and circumstances. In this case, the first information statement was promptly recorded and we do not feel that there is any embellishment or there was deliberation. If Ext. P-1 came into beiing only on 12th November 1981 on the suggestions of the C.P.I. (M) leaders, as argued for the defence, it would have contained the names and all the necessary details of all the accused. Ext. P-1 contains only the names of 11 accused and the details were also not fully correct and complete except in the names. The fact that it was initialled by the Magistrate only on 12th November 1981 is no reason by itself to reject the prosecution case. Delay in the first information statement or the first information report reaching the Magistrate must be viewed seriously. But the delay by itself is not a technical defence available to the accused. These are documents which should reach the Magistrate forthwith. The provisions of Section 157 of the Code of Criminal Procedure in this respect are intended as safe-guards against embellishments or concoctions that may be subsequently made and to enable the Magistrate to have early information of every serious crime so that he may be in a position to act. if necessary, under Section 159. Due to many reasons beyond the control of anybody sometimes there may be delay in the first information report reaching Court. Sometimes the delay may be due to the neglect of duty of the officer concerned. In all such cases, if the delay by itself is taken as a technical ground without proof or possibility of concoction or embellishment, ends of justice may suffer. A dishonest or interested police officer could thereby spoil the entire case itself by the delay. Therefore, the Courts will have to consider whether the delay is motivated and it resulted in embellishment or prejudice. The delay need not be taken serious note of if the Court is satisfied that it was promptly and honestly prepared without any deliberation. In this case, it is clear that Ext. P-1 was promptly recorded and it is not the result of deliberation. If at all there could be any deliberation, it could be only in identifying the assailants. We are satisfied that there is no such possibility. All other averments in Ext. P-1 are proved to be basically correct.

21. We have to remember that the locality was completely terrorised and there was grave law and order situation which necessitated posting of Central Reserve Police personnel also. The entire police force was concerned with that aspect. The Court is a few kilometres away from the police station. In such a situation, the delay of one or two days in the first information report reaching the Court could be due to genuine reasons also. On that ground, we do not feel that the prosecution case has to be viewed with suspicion.

22. We do not feel that there is anything suspicious or mala fide in the conduct of P.Ws. 39, 40 or 41. Immediately after information, P.W. 41 and thereafter P.W. 39 reached the scene. For them, law and order, including prevention of further crimes, was of utmost importance. Their infoimation was that crime was in the process of perpetration. They cannot be blamed for not recording a first information statement from somebody at the outset. It is true that the purpose of first information is only to set the law in motion regarding commission of a cognizable offence. It need not be a complete information. Informations on details could be collected by investigation. An information over phone also could be treated as first information and a case registered on its basis. The discretion in that respect is for the police officer to decide whether investigation could be started on its basis after recording it. If the information is found insufficient or verification is found neccessary, he can very well note it in the general diary and collect further information or make verifications before registering a case. In this case, we are satisfied that P.W. 41 was well justified in going to the spot and attending on law and order duties and entrusting P.W. 39 with the task of registering a case especially when he was unable to collect any useful information. The attempts made by him at the spot cannot be treated as proceedings in investigation. There is nothing wrong in treating Ext. P-1 as the first information. Even if Ext. P-1 is treated as a statement recorded under Section 161(3), the mere fact that it was got signed by P.W. 1 is no reason to reject his evidence. It will only warn the Court to scan his evidence more carefully. We have no agreement with the comments of the Sessions Judge against P.Ws. 39, 40 and 41. We feel that they are incorrect and unjustified, In our opinion, they did their job honestly and fairly. Courts should not lightly make comments on the conduct of the investigating officers who are burdened with onerous responsiblities. We should be guided by the fact that our comments should not unnecessarily and unjustifiably affect anybody in office. Comments should be made only when they are fully justified and necessary. We may not be justified in blaming them for adding strength to our conclusions. That does not mean that comments should not be made even when necessary.

23. We feel that the Sessions Judge could have avoided the mistakes had he taken care to consider the motive, the unlawful assembly, its common object and the identity of the members. In Ext. P-1 itself, P.W. 1 gave a general picture of all the detalils of the incident that he noticed and mentioned accused 1 to 11 as the participants along with Ors. who could be identified on sight. In the box he specifically identified all the accused including accused 12 to 15 as persons who participated in the crimes as members of the unlawful assembly. He said that all these persons were known to him even before the incident even though the names of accused 12 to 15 were not then known. P.Ws. 2 and 3 were also sleeping in the party office along with P.W. 1. They have practically supported the evidence of P.W. 1 on all the details of the incident they saw. P.W. 2 identified accused 2 to 5 and 7 to 12 as persons who were well known to him even long before the incident and identified them as person who participated in the crimes. He also said that the 13th accused was known to him about 5 months before the incident and accused 14 and 15 three months before the incident. He identified them also as persons who participated in the crimes. P.W. 3 identified accused 2 to 12 as persons who participated in the unlawful assembly and the perpetration of crimes. They have spoken to the commission of crimes by the same set of persons in the various scenes which they could see.

24. P.W. 7 is the widow of deceased Thankappan. She identified accused 1 to 8 and 12 as persons who participated in the crimes at her residence and in the neighbouring compound in murdering her husband. She said that Ors. were also present. Her daughter, P.W. 35, supported her in this respect though she did not identify any accused. It was at the residence of P.W. 9 Aly that they took shelter after the incident. Though he supported them in that respect and the commission of crimes, he refused to divulge further informations. The evidence of these and other witnesses, including the investigating officers (P.Ws. 39 and 41), reveal that there was electric light burning on the top of Kanankari tharavad of P.W. 34, in front of which the murder was committed. There was also moon-light and the light from the burning buildings with which the witnesses could have clearly seen what they deposed. It has to be remembered that the assailants never wanted their presence or participation to be kept a secret. They were doing everything in open after loud announcements and sounds created by crackers also and the crimes were perpetrated during the span of two hours after creating a scene of terrorism not only to frighten people, but also to see that nobody dares to divulge informations. It is true that P.W. 34 turned hostile and said that the usual practice is to put off the light when going for sleep. That appears to be a mala fide version even though the Sessions Judge took a different view. There is no case for her that the light was swiched on after the incident. Not only the occurrence witnesses including P.W. 8, who subsequently showed a tendency of turning hositle, but the investigating officers also said that the light was burning.

25. Though P.Ws. 4, 5, 6 and 14 turned hostile and refused to identify anybody, they have also spoken to the basic facts that the incident took place as alleged. P.W. 10 identified accused 2 to 9, 11 and 12 as participants in the action and said that Ors. were also there. Among the assailants, P.W. 11 identified accused 1 to 5, 7 and 9. P.W. 13 identified accused 2 to 5 and 8. P.W. 8 identified accused 1 to 5. All these witnesses have spoken to the various crimes they have seen. Except in the matter of identification, their versions are supported by the hostile witnesses also and the evidence of P.Ws. 39, 40 and 41 and the records proved by them. The basic facts spoken to by these witnesses except on the aspect of identification of the assailants cannot be disputed by anybody. We do not think that a test identification parade was necessary in this case. The evidence of the witnesses including the investigating officers is that all the accused are prominent R.S.S. workers of the locality and previously known to the witnesses even though the names of some were not known to some witnesses. They could be identified by their names alone. No question of wrong identification is involved. Further there was more than sufficient time for identification at the spot itself in good light. Question of test identification parade arises only regarding assailants not previously known.

26. It is true that P.Ws. 1 to 3, 7, 8, 10, 11 and 13, who supported the prosecution fully, are interested and inimical witnesses in the sense that they are closely connected with the C.P.I. (M). It is also true that some of them attempted to conceal their identification with the party and there are some contradictions, omissions and discrepancies also on minor details. They are quite possible and inevitable in the nature of the crime, the time at which it happened and the manner in which they were perpetrated. A mechanical and arithmetical approach to the evidence in such a situation, as was done by the Sessions Judge, unconnected with realities does not appear to be proper or conducive to justice. Apart from slight mistakes and omissions on details in Ext. P-1 regarding the assailants, the identification by names appears to be fool-proof. We are satisfied that no man was wrongly roped in. We are fully convinced that all the accused were participants in the crime and members of the unlawful assembly, which shared the common object on account of the motive, which was common between them. Minor mistakes on details of the overt acts are only to be ignored. The exercises in that line, which is not at all profitable for any purpose, could have been avoided without risking anything. Interested or inimical nature of the witness could have only warned the judge in the matter of scrutiny. The complaints of the Public Prosecutor, referred to by us in Paragraphs 14 to 16 supra, could have been very well avoided by a correct approach. We fail to understand why the motive, unlawful assembly, its common object and identity of the members were not considered and why the evidence was discussed as if the accused are tried for their individual acts. On a closer scrutiny, we find that the case is fully established and that the interested nature of the witnesses should not have been considered as a ground in refusing to bring the offenders in heinous crimes to justice when their evidence is supported fully by probabilities.

27. P.W. 8 is the only available witness who gave direct evidence regarding the brutal murder. Other neighbours refused to speak the truth for their own reasons. He identified accused 1 to 5 as perpetrators of the murder. His evidence clearly shows that they are closely known to him. The accused also seem to be fully aware of this fact. That is why they did not make any attempt to challenge his identification by cross examination. He has spoken to the electric light burning above Kanankarithara House. But, when the charge was amended, the accused got an opportunity of re-calling him for further cross examination and they utilised that opportunity in his case alone. That was evidently with a purpose which anybody could have noticed. But the Sessions Judge wrongly placed the responsibility on the Public Prosecutor in having re-called and examined him. Evidently, before re-calling him, there must have been an understanding between the accused and himself. The only way of shattering his evidence was to make out that his identification was wrong. He was prepared to oblige. He was even prepared to retract from his original evidence that there was burning electric light. In the subsequent examination, he appeared to be a tamed man who has prepared to make any wrong identification which the accused wanted. In that attempt, he forgot that his wrong identification itself was capable of creating suspicion especially when he identified the same person wrongly twice. Ignoring all these facts, the Sessions Judge disbelieved him accepting the defence contentions. In coming to the conclusion that P.W. 8 could not have seen the incident from the place where he was standing, the Sessions Judge made imaginary assumptions not supported by evidence. We are fully satisfied that the evidence given by P.W. 8 before further examination was correct and what he said later is only the result of collusion. His earlier evidence was in consonance with the proved facts and probabilities also.

28. We are fully conscious of the fact that we are dealing with an appeal against acquittal, which involves certain restrictions in the right of interference. But the powers of the appellate Court are the same, whether the appeal is from an acquittal or conviction. Difference is only in the matter of approach. The appellate Court is also a Court of facts entitled to re-appraise the evidence and come to independent conclusions. In a criminal trial, the entire burden is on the prosecution to prove its case beyond reasonable doubt. The accused is in an envious position and he can even keep silent or take up conflicting defence. His burden to prove any defence including any exception cannot be equated to that of the prosecution. He is the only person entitled to the benefit of any reasonable doubt arising from the prosecution or defence evidence. That is because of the well accepted principle in criminal trial that no innocent man should suffer conviction even at the risk of many culprits escaping punishment, Presumption is always in favour of innocence until the contrary is proved beyond doubt. That presumption is available even when the guilt is proved but the benefit of a reasonable doubt lingers. Therefore, if two reasonable views are possible, the one in favour of the accused will have to be preferred even if it be on the basis of benefit of doubt arising out of the prosecution evidence itself and not on the defence. Added to that, there is the presumption of innocence strengthened by the acquittal. The trial Court, which acquitted the accused, is one having the added advantage of seeing the witnesses in action and watching their demeanour. That advantage is not available to the appellate Court. Therefore, if the view adopted by the trial Court could be justified on law, facts, common sense or justice and treated as probable in the circumstances, it will have to be respected. A different approach will be justified only if the trial Court fundamentally erred in its conclusions and the view adopted by it is found to be not reasonably possible.

29. Considered on these touch-stones, we do not find any basis to support the wrong conclusions of the Sessions Judge, which ignored facts and realities. The conclusions do not appear to be supported by any probable or acceptable reasons. Evidence was misread and misunderstood. Legal and factual positions were wrongly assumed. There was evidently a tendency to misread things and come to wrong conclusions which could never be justified even on probabilities. Justice should not only be done, but it should so appear also. The conclusion of innocence is strongly against the weight of the evidence. We feel that we may be failing in our duty if these mistakes are not corrected. That is felt to be absolutely necessary in the ends of justice. Therefore, with hesitation, but keeping in mind our duty to the society, we feel constrained to interfere with the conclusions which are absolutely impossible. We find accused 2 to 5 and 7 to 15 guilty of all the offences except Section 326 of the Indian Penal Code, for which they are tried. That is the inevitable conclusion from the prosecution evidence which has not shattered to any extent by the defence.

30. On the question of sentence, we were not able to hear anything useful from the defence. For murder, in furtherance of the common object, we feel inclined to award only the lesser alternative in spite of the cruel and revolting nature of the crime. For other offences, we are awarding the reasonable punishment which we consider proper.

We allow the appeal and reverse the acquittal. We convict accused 2 to 5 and 7 to 15 for all the offences except Section 326 of the Indian Penal Code, for which they are charge-sheeted and tried with the aid of Section 149 of the Indian Penal Code. Each of them is sentenced to undergo rigorous imprisonment for three months under Section 143, rigorous imprisonment for six months under Section 147, rigorous imprisonment for one year under Section 148. rigorous imprisonment for three months under Section 236, rigorous imprisonment for three years under Section 452, rigorous imprisonment for six months under Section 323, rigorous imprisonment for one year under Section 324, rigorous imprisonment for live years under Section 436 and imprisonment for life under Section 302 with the aid of Section 149 of the Indian Penal Code. The sentences will be suffered concurrently. The Sessions Judge is directed to take, steps to execute the sentences.