IMPORTANT POINT
Delay in FIR reaching the court has serious impact on the trustworthiness of the investigation and the validity of the trial. The accused, having failed to avail the opportunity under section 231 of CrPC cannot contend that they were prejudiced by the order of examination of witnesses by prosecution.

JUDGMENT :

The appellants, accused Nos.1, 2 and 4 in S.C. No. 376 of 2005 of the IIIrd Additional Sessions Court (Ad Hoc) Fast Track Court No.I, Thrissur, are in appeal against the conviction and sentence imposed by the trial court. The first appellant was convicted for the offence punishable under Section 326, the second appellant for the offence under Section 341 and the third appellant under Section 324 of the Indian Penal Code.

2. The prosecution allegations, based on which the appellants along with the absconding third accused, were charged, tried and convicted by the trial court are as under:

The accused, who were activists of a political organisation by name NDF, had, in furtherance of their common intention to commit culpable homicide of PW4; who was an activist of RSS, a rival political outfit, wrongfully restrained PW4, at about 7.30 PM on 2.3.2002 near Blangad Siddique Palli Junction, within the limits of the Chavakkad Police Station. After restraining PW4, the 1st accused hit on his face with the handle of a knife, the 2nd accused hit him with a gauntlet, the 3rd accused fisted PW4 on his chest and back and the 4th accused attempted to hit on his head with an iron pipe which PW4 evaded and the blow fell on his back. As a result of the assault PW4 sustained fracture to his nasal bone and other bodily injuries.

3. In order to prove its case, the prosecution examined PWs 1 to 6 and marked Exts.P1 to P6. The accused denied the incriminating circumstances put to them during their examination under Section 313 Cr.P.C, but no evidence, either oral or documentary, was tendered in their defence. The trial Court rejected the defence contention of the accused having been falsely implicated due to political enmity, as also the contention regarding the discrepancies in the oral testimony of the prosecution witnesses and the delay in dispatching the FIR to the jurisdictional Magistrate Court being indicative of a partisan investigation. The trial Court held that, the prosecution having succeeded in proving that PW4 had suffered injuries and it was the accused who had assaulted PW4 and that the First Information Statement had been recorded and the F.I.R registered without delay, the fact that the F.I.R reached the Magistrate Court about twenty four hours later was immaterial.

4. Heard Sri.Sunny Mathew, learned Counsel for the appellants and Sri B. Jayasurya, learned Public Prosecutor.

5. The learned counsel for the appellants contends that other than the glaring discrepancies in the testimonies of the prosecution witnesses, which the trial Court had brushed aside, the entire investigation was tainted and was suspect for reason of the delay in dispatching the FIR. The learned counsel further contends that the manner in which the trial was conducted had prejudiced the accused in their defence. In elaboration, it is submitted that while PW6, and alleged chance eyewitness, but in fact a partisan witness, was examined the actual eye witnesses, including the shopkeeper who, even according to the prosecution witnesses, was present near the scene of occurrence during the incident were not examined. The order in which the prosecution witnesses were examined, i.e, the victim and the eye witness being examined after the investigation officer, is pointed out as another example of the trial having been conducted in an unfair manner.

6. The learned Public Prosecutor countered the contentions and submitted that the clear and cogent evidence tendered by PW4 and PW6 regarding the manner in which the incident had taken place and the identity of the accused, coupled with the medical evidence, was sufficient to prove the guilt of the accused and to sustain their conviction.

7. In the nature of the contentions urged, the prosecution evidence was subjected scrutiny, upon which the following glaring discrepancies surfaced:

(i) The Assistant Surgeon (PW1), who examined PW4 within one hour of the incident and issued Exhibit P1 Accident-cum-Wound Certificate dep