Inconsistencies in witness testimony and lack of sufficient evidence can cast doubt on the prosecution's case, and recovery evidence alone may not be sufficient to establish guilt beyond reasonable doubt.

Pareed Pillay, J.

Appellants (accused 1,2 and 4) along with A-3 stood charged under Ss.302 read with S.34 of the Indian Penal Code for having caused the death of Balan on 26-8-1988 at about 8.30 p.m. Learned Additional Sessions Judge found A-3 not guilty and acquitted him. A-1, A-2 and A-4 were found guilty under S.302 read with S.34 of the Indian Penal Code and they were convicted and sentenced to undergo imprisonment for life.

2. Prosecution case in brief is as follows: On 26-8-1988 some time prior to 8-30 p.m. Balan (deceased) uttered abusive words under the influence of liquor in front of the house of Cheerakuzhi Govindan. Inmates of the house protested against the action of Balan and one Shaji persuaded Balan to go away from there. Shaji and Balan walked together from there and when they reached in front of the house of A-1 Balan uttered obscene words against A-1. A-1 retorted in the same manner. While the verbal altercation was going on A-2 to A-4 who are the sons of the brother of A-1 came out and approached Balan. A-1 went inside his house and immediately came back near Balan. A-1 and A-2 were having choppers with them. A-4 having a pestle with him. A-3 pushed down Balan. A-4 gave a blow with the pestle on the head of Balan. A-1 and A-2 inflicted several injuries on the body of Balan. Balan died at the spot.

3. It was P.W.1 who lodged Ext.P-1 First Information Statement before P.W.18 Sub Inspector. P.W.19, Circle Inspector investigated the case. He prepared inquest report Ext.P6. P.W.17, doctor conducted autopsy and issued Ext.P-13 postmortem certificate. P. W.19 during the course of investigation recovered M.Os. 2 and 3 choppers at the instance of A-2 and A-1 respectively. One of the pieces of pestle (M.O.I) was found from the scene. Other pieces (M.O.I (a) and (b) were recovered as per A-4's statement. Ext.P-14 is the mahazar where in it is stated that all pieces put together form the pestle. After completing the investigation P.W.19 laid the charge before the Court.

4. P.W.I turned hostile to the prosecution. But it is admitted by him that he had put his signature in Ext.P-1. Though in Ext.P-1, P.W.I stated that he witnessed the occurrence in the Court he was disloyal to the prosecution. Prosecution mainly relied on the testimony of P.Ws. 2,3 and 4.

3. Learned Sessions Judge did not place any reliance upon the testimony of P. W.4.

4. P. W.4 is the brother of deceased Balan. His testimony was not accepted by the Sessions Judge on the finding that it would not have been possible for him to reach the place of occurrence to have seen the accused when admittedly he got information about the incident when he was at a place 1 k.m. away from the place of occurrence. The evidence of P. W.4 that he saw the accused within 25 metres from the place of occurrence when he came on getting information about the incident has been rightly rejected by the learned Sessions Judge.

5. Learned Sessions Judge relied on the testimony of P. Ws. 2 and 3 to uphold the prosecution case. Learned counsel for the appellants submitted that the evidence of P.Ws. 2 and 3 is not free from suspicion especially in view of the fact that they could not have identified the assailants at the time of incident. Counsel submitted that P.W.2 has given deliberately a twist to his statement before the police to establish that he witnessed the occurrence from a distance of 10 to 12 feet. Before the Police his version was that he saw the occurrence from a distance of 20 metres. P.W.2 did not tell the investigating officer that he could see the assailants with the help of moon light. P.W.3 deposed that he saw the incident from a distance of 20 to 25 metres. Before the Police his version was that he could identify the assailants in the star lights. In the Court he is emphatic that there was bright moonlight at the time of occurrence. The case diary contradiction (Ext.D-3) shows that the version before the police is opposed to what he has stated before the Court.