Kerala High Court
Karuvangadan Mukthar @ Muthu vs The Deputy Superintendent Of Police on 12 April, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE S.MANU
Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
CRL.M.APPL.NO.5/2023 IN CRL.A NO.725 OF 2023
SC 99/2013 OF ADDITIONAL SESSIONS COURT - III, MANJERI
PETITIONERS/APPELLANTS/ACCUSED NOS.1 TO 10:
1. KARUVANGADAN MUKTHAR @ MUTHU, AGED 38 YEARS, S/O. UMMERHAJJI,
CHEMBRAKATTUR, AREEKODE, MALAPPURAM, PIN - 673639.
2. RASHID @ VAVA, AGED 31 YEARS, S/O UMMER, KOZHISSERIKUNNATH
HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL, MALAPPURAM, PIN - 673639.
3. RASHEED @ SUDANI RASHEED, AGED 31 YEARS, S/O ABDUL HAMEED,MUNDASSERI
HOUSE,KEEZHUPARAMBA AMSOM, KUNIYIL, MALAPPURAM, PIN - 673639.
4. CHOLAYIL UMMER, AGED 43 YEARS, S/O IBRAHIM,THAZHATHEYIL HOUSE
KEEZHUPARAMBA AMSOM,KUNIYIL, MALAPPURAM, PIN - 673639.
5. EDAKKANDI MUHAMMED SHAREEF @ CHERRI, AGED 41 YEARS, S/O
MARAKKARUKUTTY, VILANGOTH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL,
MALAPPURAM, PIN - 673639.
6. KURUMADAN ABDUL ALI, AGED 41 YEARS, S/O MUHAMMED, MADATHIL HOUSE,
KEEZHUPARAMBA AMSOM, KUNIYIL, MALAPPURAM, PIN - 673639.
7. FADALU RAHMAN, AGED 29 YEARS, S/O ABDULLA, ERUMANKUNNATH
HOUSE,KEEZHUPARAMBA AMSOM, KUNIYIL, MALAPPURAM, PIN - 673639.
8. MUHAMMED FATHEEN, AGED 29 YEARS, S/O ABDUL RAZAK, KIZHAKKETHODI
HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL, MALAPPURAM, PIN - 673639.
9. MADHURAKUZHIYAN MAHZOOM, AGED 36 YEARS, S/O ALIMON, MADURAKUZHIYAN
HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL, MALAPPURAM, PIN - 673639.
10. EDAKANDDI SANIZ @ CHERUMANI, AGED 38 YEARS S/O MARAKKARUKUTTY,
VILANGOTH HOUSE, KEEZHUPARAMBA AMSOM, KUNIYIL, MALAPPURAM, PIN -
673639.
RESPONDENTS/RESPONDENTS:
1. THE DEPUTY SUPERINTENDENT OF POLICE, NARCOTIC CELL, MALAPPURAM, PIN
- 676509.
2. THE STATE OF KERALA, REPRESENTED THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the petitioners
by the Additional Sessions Judge - III, Manjery in SC 99/13 and to release
the petitioners on bail, pending disposal of the Criminal Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.SUNNY MATHEW, M.P.ABDUL LATHEEF,
C.K.SREEDHARAN(S-1651), ANOOJ J., Advocates for the petitioners and of the
PUBLIC PROSECUTOR for the respondents, the court passed the following:
P.T.O.
P.B.SURESH KUMAR & S.MANU, JJ.
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Crl.M.Appln.Nos.2 & 5 of 2023 in
Crl.Appeal No.725 of 2023
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Dated this the 12th day of April, 2024
ORDER
S.MANU, J.
Crl.A.No.725 of 2023 is filed by accused Nos.1 to 11 and 18 in S.C.No.99 of 2013 of the Additional Sessions Court-III, Manjeri. The Sessions Case arose from Crime No.240 of 2012 of Areacode Police Station, Malappuram District. The offences alleged against the appellants and other accused are under Sections 143, 147, 148, 120(B) read with Section 302, read with Section 149, 302 read with Section 109, 201, 212, 118 of the Indian Penal Code and Section 24 read with Section 7 of the Arms Act.
2. According to the prosecution, on 10.6.2012, the accused Nos.1 to 11, in pursuance of a criminal conspiracy formed themselves into an unlawful assembly armed with deadly weapons and in furtherance of the common object, the accused Nos.1 to 7 committed the murder of one Kolakkadan Adbul Kalam Azad. On the same day and at the Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 2 same time, the accused Nos.8 to 11, in furtherance of the common object, assaulted Kolakkadan Aboobakar, the brother of Kolakkadan Abdul Kalam Azad and caused his death. Crime No.240 of 2012 was registered by the Sub Inspector of Police, Areacode on the basis of Ext.P271 statement given by PW167 for the offences punishable under Sections 143, 147, 148, 120(B) and 302 read with Section 149 of the IPC. The investigation was later taken up by a special investigation team led by the Dy.S.P., Narcotic Cell, Malappuram. The Final Report was submitted by the said investigating officer. On committal to the Court of Session, Manjeri, the case was registered as S.C.No.99 of 2013. Later, it was made over to the Additional Sessions Court-III, Manjeri for trial.
3. Huge volume of evidence was let in by the prosecution, during trial. PWs.1 to 275 were examined and Exts.P1 to P692 were produced and marked. Eighty six material objects were also marked as MOs.1 to 86. Exts.C1 to C14 were marked as Court Exhibits. Exts.D1 to D18 were marked on behalf of defence as Exhibits. On conclusion of Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 3 trial, the learned Additional Sessions Judge found A1 to A11 guilty of the offences under Sections 143, 147, 148, 302 read with Section 149, 120(B) read with Section 302, 302 read with 109, 201, 118 of the IPC and Section 27 read with Section 7 of the Arms Act. A18 was found guilty of the offences punishable under Section 120B read with Section 302, 302 read with Section 109 and Section 118 of the IPC. Other accused were acquitted for all charges.
4. The sentence imposed on the accused found guilty is shown in the table given below:-
Accused Offences found Sentence imposed against A1 to A11 u/s. 302 A1 to A7 are sentenced to undergo r/w.149 and imprisonment for life and to pay a fine 120(B) r/w. of Rs.50,000/- each, u/s. 302 r/w.149 302 IPC, 302 and 120(B) r/w. 302 IPC, 302 r/w.109 r/w.109 IPC IPC for the offence of murder of Azad.
u/s.118 IPC. In default of payment of fine A1 to A7 shall undergo rigorous imprisonment for a further period of 1 year and sentenced to undergo imprisonment for 7 years for the offence punishable u/s.118 IPC.
u/s.143, 147 A1 to A11 sentenced to undergo and 148 IPC. rigorous imprisonment for a period of six months for the offence punishable Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 4 u/s.143 IPC and rigorous imprisonment for one year for the offence punishable u/s.147 IPC and rigorous imprisonment for a period of two years for the offence punishable u/s.148 IPC.
u/s.7 of the They are also sentenced to undergo Arms Act imprisonment for a period of seven years and to pay a fine of Rs.5,000/-
and in default of payment of fine to undergo imprisonment for a period of six months for the offence punishable u/s.7 of the Arms Act. The fine amount, if paid or realized, will be paid to the wife and children of the deceased Abdul Kalam Azad as compensation u/s. 357(1) Cr.P.C.
U/s.201 IPC A1 to A11 are sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.20,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of six months for the offence punishable u/s.201 IPC.
A8 to A11 U/s.302 r/w A8 to A11 are sentenced to undergo 149 and imprisonment for life and to pay a fine 120(B) r/w.302 of Rs.50,000/- each, u/s.302 r/w 149 IPC, 302 r/w and 120(B) r/w.302 IPC, 302 r/w.109 109 IPC IPC for the offence of murder of Aboobacker.
u/s.118 IPC. In default of payment of fine A8 to A11 shall undergo rigorous imprisonment for a further period of 1 year and sentenced to undergo imprisonment for 7 years for the offence punishable u/s.118 IPC. The fine amount, if paid or realized, will be paid to the wife and children of the deceased Aboobacker as compensation u/s.357(1) Cr.P.C.
Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 5 A18 U/s. 120(B) A18 is sentenced to undergo r/w. 302 IPC, imprisonment for life and to pay fine 302 r/w.109 of Rs.50,000/- and in default of IPC. payment of fine to undergo rigorous imprisonment for a period of two years for the offence punishable u/s.120(B) r/w.302 IPC and to imprisonment for life and to pay a fine of Rs.50,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of two years for the offence punishable u/s.302 r/w.109 IPC, and sentenced to undergo imprisonment for 7 years for the offence punishable u/s.118 IPC.
5. Aggrieved by the conviction and sentence imposed, A1 to A11 and A18 have preferred the above Criminal Appeal.
6. Crl.M.Appln.No.2 of 2023 has been filed by the 18 th accused for suspension of sentence imposed on him. Crl.M.Appln.No.5 of 2023 has been filed by accused Nos.1 to 10 for the same relief.
7. We have heard Sri.Sunny Mathew, learned counsel appearing for the petitioners in Crl.M.Appln.No.5 of 2023 and Sri.K.Anand, learned counsel appearing for the petitioner in Crl.M.Appln.No.2 of 2023. Sri.Gracious Kuriakose, learned Additional Director General of Prosecution assisted by Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 6 Sri.C.K.Suresh, learned Public Prosecutor was also heard. We have also perused the judgment under challenge as well as the relevant records.
8. Sri.Sunny Mathew, learned counsel appearing for the petitioners in Crl.M.Appln.No.5 of 2023 submitted that the conviction and sentence imposed on the petitioners is absolutely without any legally acceptable evidence against them. He submits that the trial court found many of the occurrence witnesses cited by the prosecution unreliable like PWs.167, 168 and 173. He also points out that the identification of the accused was also unreliable. The learned counsel also submitted that the trial court after disbelieving the key witnesses examined by the prosecution found them guilty on the basis of circumstantial evidence and the analysis of evidence by the trial court and conclusions are perverse and illegal. He further elaborated his arguments referring to the evidence of various witnesses and analysis of their evidence by the trial court in the impugned judgment. In a nutshell he submits that the case at hand is one of "no evidence". He therefore vehemently Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 7 submitted that it is essential in the interest of justice to suspend the operation of the sentence imposed on the petitioners in Cr.M.Appln.No.5 of 2023.
9. Sri.K.Anand appearing for the petitioner in Crl.M.Appln.No.2 of 2023 argued that the petitioner has been found guilty despite the fact that he has no direct participation in the commission of alleged offences and that the only serious allegation against him is with regard to procurement of a TATA Sumo vehicle for the purpose of commission of offences. He argued that there is scarcely any reliable evidence brought on record to conclusively prove the offences alleged against the petitioner. He referred to the evidence of PWs.227, 228, 229 and 230 and contended that the evidence adduced by the prosecution against his client is unreliable and inadequate.
10. The learned Additional Director General of Prosecution opposed the applications. He submitted that the accused are guilty of committing murder of two brothers on account of previous enmity and it was a well planned double murder. Contradicting the submissions made by the Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 8 learned counsel appearing for the petitioners he submitted that the trial court has accepted the evidence of many of the key prosecution witnesses and the evidence brought on record by the prosecution justifies the conclusions arrived at by the learned Additional Sessions Judge. He specifically refers to the evidence of PWs.167, 172, 180, etc. He also referred to the evidence of PW178 who spoke about the assault on Aboobakar, the second victim. He further pointed out that the circumstantial evidence available to prove the prosecution case have been properly analysed by the trial court. He made submissions to the effect that the preparation, recovery of weapons and their identification, use of vehicles by the accused for commission of the crime, the motive and common object of the accused as well as the criminal conspiracy hatched by them are all established by the prosecution. He also submitted that in the nature of the offences committed, the petitioners are not entitled to seek suspension of sentence and concluded with the submission that the Criminal Miscellaneous Applications may be dismissed.
Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 9
11. In Preet Pal Singh v. State of Uttar Pradesh and another [(2020) 8 SCC 645] the Hon'ble Supreme Court analysed the provisions of Sections 389 and 374 of the Cr.P.C. and laid down in paragraph '38' as follows:-
"In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail."
12. In Vinay Kumar v. Narendra and others [(2002) 9 SCC 364] the Apex Court held as follows:-
"The principle is well-settled that in considering the prayer for bail in a case involving serious offence like murder, punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 10 convicted for committing the serious offence of murder."
13. The aforesaid view has been reiterated by the Hon'ble Supreme Court in 1) Ramji Prasad v. Rattan Kumar Jaiswal and another [(2002) 9 SCC 366],
2) Vasant Tukaram Pawar v. State of Maharashtra [(2005) 5 SCC 281] and 3) Gomti v. Thakurdas and Others [(2007) 11 SCC 160].
14. In Omprakash Sahni v. Jai Shankar Chaudhary & others [(2023) 6 SCC 123] the Apex Court held that while undertaking the exercise to ascertain whether the convict has a fair chance of acquittal, what is to be looked into is something palpable. In other words, something which is very apparent or gross errors on the face of the record on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Hon'ble Apex Court went on to hold that the appellate court should not re-appreciate the evidence at the stage of Section 389 of the Cr.P.C. and try to pick up few Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 11 lacunas or loopholes here or there in the case of prosecution.
15. Therefore, it is well settled that the appellate court, exercising the power under Section 389 of the Cr.P.C., is not expected to venture for a detailed analysis of the evidence brought on record during trial and to decide on the quality, veracity, admissibility, etc. of the evidence. It is also well settled that the gravity of the offence committed and found against the accused by the trial court shall be a relevant consideration in exercising the powers under Section 389 of the Cr.P.C. In cases involving conviction under Section 302 of the IPC exercising the power under Section 389 of the Cr.P.C. to suspend the execution of sentence is permissible only in exceptional cases. Hence, only an examination as to whether there are apparent or gross errors on the face of the record is permissible at the stage of considering an application for suspension of sentence. It is also to be borne in mind that the presumption of innocence is not available to the accused Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 12 seeking relief under Section 389 of the Cr.P.C. Keeping in mind these principles we proceed to consider the applications.
16. Regarding the case projected by the petitioners in Crl.M.Appln.No.5 of 2023, we are of the view that the contention raised to the effect that the case at hand is one of "no evidence" cannot be accepted. It is true that the learned Additional Sessions Judge has rejected the evidence of several key witnesses examined by the prosecution. However, evidence of many of the prosecution witnesses have been found credible by the learned Additional Sessions Judge. The learned Judge proceeded to analyse the case on the basis of circumstantial evidence and after elaborate consideration of the evidence, came to the conclusion that accused Nos.1 to 11 and 18 are guilty. In view of the settled position of law, we are not expected to reassess or reanalyse the evidence relied on by the trial court and take a different view at this stage. Hence we refrain from extensively analysing the evidence and making observations Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 13 regarding the quality and reliability. On hearing the arguments and perusing the materials, especially the evidence of the witnesses to whose evidence references were made by the respective counsel, we are satisfied that the findings arrived at by the learned Additional Sessions Judge on analysing the case on the basis of circumstantial evidence cannot be termed as erroneous, prima facie. Findings regarding complicity of the petitioners in Crl.M.Appln.No.5 of 2023 who are A1 to A11, cannot be held to be without any evidence as argued. Hence, it cannot be concluded at this stage that the validity of the conviction is doubtful. We must note that the accused Nos.1 to 11 have been found guilty of a twin murder, resulting in the loss of life to two brothers of the same family. They have allegedly taken revenge for another murder, thus perpetuating lawlessness. Hence, we hold that the petitioners in Crl.M.Appln.No.5 of 2023 are not entitled to get their sentence suspended. Therefore, the said Crl.M.Appln. is liable to be dismissed.
Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 14
17. The alleged role of the petitioner in Crl.M.Appln.No.2 of 2023 is limited, though distinct. The main allegation against him is that he was instrumental in procuring the TATA Sumo vehicle used for transportation of the accused for the purpose of commission of the murder. Of course the offences under 120 B r/w 302, 302 r/w 109 and S.118 have been found against him. On an examination of the evidence against him, we find merit in the contention of the learned counsel appearing for the petitioner/A18, that the evidence against him is prima facie weak. Hence we are inclined to allow Crl.M.Appln.No.2 of 2023.
18. In the result, Crl.M.Appln.No.5/2023 is rejected. Crl.M.Appln.No.2/2023 is allowed and the sentence imposed on the petitioner shall stand suspended on the following conditions:-
(i) The petitioner/accused No.18 shall execute a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum each to the satisfaction of the trial court.
Crl.M.Appln.Nos.2 & 5 of 2023 in Crl.Appeal No.725 of 2023 15
(ii) The petitioner/accused No.18 shall deposit the fine imposed on him for the offences under Section 120(B) read with Section 302 of IPC and also for the offence under Section 302 read with Section 109 of the IPC before the trial court.
(iii) The petitioner/accused No.18 shall not involve in any criminal activities.
(iv) The passport, if any, of the petitioner/accused No.18 shall be surrendered before the trial court if not already done. In case he has no valid passport, he shall file an affidavit stating so before the trial court.
(v) The period of suspension of the sentence shall be excluded as provided under Section 389(4) of the Cr.P.C. in computing the period of incarceration.
Sd/-
P.B.SURESH KUMAR, JUDGE Sd/-
S.MANU, JUDGE skj 12-04-2024 /True Copy/ Assistant Registrar