JUDGMENT :

K. VINOD CHANDRAN, J.

1. When public opinion influences an investigation its very course gets diverted with exasperating results. A tribal woman was murdered and the suspect was her confidant who was from the same community. The community rose in arms against the implication of their own and the Police removed him from the array of suspects and proceeded against the two other suspects from a different community with a higher caste status thus alleging offences not only under the Indian Penal Code but also under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. The accused were found guilty in the trial wherein PW-1 to PW-39 were examined, Ext.P1 to Ext.P49 series were marked and MO1 to MO25 objects were produced. The defence marked 21 contradictions from the 161 statements of the various witnesses as D1 to D21. Two exhibits were marked as D22 and D23 through a witness examined by the defence as DW-1.

3. The appellants/accused were found guilty of all the offences alleged and they were sentenced to undergo life imprisonment and pay a fine of Rs. 50,000/- each under Section 302 of IPC and S.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and to undergo rigorous imprisonment (R.I) for 7 years and pay a fine of Rs. 25,000/- each under S.376 of the Indian Penal Code with default sentences.

4. Sri. Nireesh Mathew learned Counsel for the appellant/accused meticulously took us through the evidence. The contradictions and omissions were specifically pointed out to urge that the motive stated is a cooked-up story. Even the Court below observed that none of the witnesses except PW-8 was reliable. The Court below misdirected itself in believing PW-8 since he is the most unbelievable witness and a clear suspect. The evidence of PW-26 leads to an inference that there was a cover-up, for reason of the tribal community rising in arms from implicating one of their own for the murder. PW-8's statements to the Police marked as contradictions are hopelessly incriminating. These statements could not have been taken into account if he was in the array of accused, but having not been so arrayed, it is sufficient to give rise to a reasonable doubt, to acquit the accused. The accused, both of them, deny their presence and allege false implication merely to appease the community to which the deceased and PW-8 belonged. The motive having been disbelieved, it cannot be said that there is any animosity between the accused and the deceased. The narration, of the incident or rather the circumstances, by PW-8 is totally unbelievable and that is the sole basis for the conviction. The subsequent conduct of PW-8; of having remained with the corpse for one full night and reporting the death only on the next day morning itself throws suspicion on him. Further, he did not reveal any of the circumstances now stated and merely reported the death of the person he considered as his sister; without making any allegation of murder. He also hid in the forest when the Police came to the scene of occurrence where the corpse was lying. These very relevant aspects of the subsequent conduct of PW-8, coupled with the damaging contradictions marked through him, are to be taken note of under S. 8 of the Indian Evidence Act.

5. The accused have a specific contention that they were taken into custody, along with PW-8, when the investigation commenced and their arrest was recorded much later on 09.08.2005 after more than three months. The medical examination which led to Ext.P12 and P13 reports, occurred on 04.06.2005 while they were in police custody wherein they were brutally assaulted; which explains the injuries on them. The Panchayat member who was examined as PW-26 specifically spoke of seeing the accused in the Police station on 05.06.2005. There is no valid potency test carried out on PW-8 who was referred to a Medical Board by the Doctor, PW-20, who initially carried out the test on the accused