O.G.Madhanan vs The State Of Kerala
2022 Latest Caselaw 3129 Ker

Crl.R.P.Nos.116, 234 and 590 of 2017
                                          1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                 THE HONOURABLE MR. JUSTICE SUNIL THOMAS
     FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943
                          CRL.REV.PET NO. 590 OF 2017
    AGAINST THE ORDER/JUDGMENT IN SC 68/2016 OF IV ADDITIONAL
                          SESSIONS COURT, THODUPUZHA
REVISION PETITIONER/ACCUSED NO.2:

              M.M.MANI, AGED 72 YEARS,S/O.LATE MADHAVAN,MUNDACKAL
              HOUSE,20 ACRE,BISON VALLEY,POTTENKADU.P.O,IDUKKI-
              685565.

              BY ADVS.
              SRI.S.SREEKUMAR (SR.)
              SRI.P.MARTIN JOSE
              SRI.P.PRIJITH
              SRI.M.K.THANKAPPAN
              SRI.THOMAS P.KURUVILLA


RESPONDENT/COMPLAINANT:

1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM,PIN-682031.

BY ADVS.

SRI.SUMAN CHAKRAVARTHY, SR. GOVT.PLEADER BIJU ANTONY ALOOR ADDL.DIRECTOR GENERAL OF PROSECUTION SHRI.JOBIN ABRAHAM SRI.K.P.PRASANTH SRI.VISHNU DILEEP SMT.T.S.KRISHNENDU SMT.ARCHANA SURESH

OTHER PRESENT:

SR.SPL.GP (CRL.) SRI.S.U.NAZAR Crl.R.P.Nos.116, 234 and 590 of 2017

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17.11.2021, ALONG WITH Crl.Rev.Pet.116/2017, 234/2017, THE COURT ON 18.03.2022 DELIVERED THE FOLLOWING: Crl.R.P.Nos.116, 234 and 590 of 2017

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943 CRL.REV.PET NO. 116 OF 2017 AGAINST THE ORDER/JUDGMENT IN SC 68/2016 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA / II ADDITIONAL MACT, THODUPUZHA REVISION PETITIONER/ACCUSED NO.1

KUTTAPPAN @ PAMPUPARA KUTTAN AGED 58 YEARS, S/O.RAGHAVEN, KAINIKARI HOUSE, KARUNAKARA COLONY, PARMAMKULAM, UDUMBENCHOLA VILLAGE, UDUMBENCHOLA TALUK, PIN-685619.

BY ADVS.

SRI.B.RAMAN PILLAI (SR.) SRI.M.K.THANKAPPAN SRI.SUJESH MENON V.B.

SRI.T.ANIL KUMAR SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT SRI.R.ANIL

RESPONDENT/COMPLAINANT:

1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.

BY ADVS.

SRI.SUMAN CHAKRAVARTHY, SR. GOVT.PLEADER SINU.G.NATH SRI.SUJITH MATHEW JOSE SRI.SIBY CHENAPPADY ADDL.DIRECTOR GENERAL OF PROSECUTION

SR.SPL.GP (CRL.) SRI.S.U.NAZAR Crl.R.P.Nos.116, 234 and 590 of 2017

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17.11.2021, ALONG WITH Crl.Rev.Pet.590/2017 AND CONNECTED CASES, THE COURT ON 18.03.2022 DELIVERED THE FOLLOWING:

Crl.R.P.Nos.116, 234 and 590 of 2017

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943 CRL.REV.PET NO. 234 OF 2017 AGAINST THE ORDER/JUDGMENT IN SC 68/2016 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA / II ADDITIONAL MACT, THODUPUZHA REVISION PETITIONER/ACCUSED NO.3:

O.G.MADHANAN, AGED 62 YEARS, S/O.LATE GOPALAN, OLADETHU HOUSE,RAJAKKAD VILLAGE, N.R.CITY, RAJAKKAD PO., PIN-685566

BY ADVS.

SRI.S.SREEKUMAR (SR.) SRI.AJAY BEN JOSE SRI.R.GITHESH SRI.K.M.MOHAMMED KUNHI SRI.MANJUNATH MENON SRI.P.PRIJITH SRI.M.K.THANKAPPAN SRI.THOMAS P.KURUVILLA

RESPONDENT/COMPLAINANT:

THE STATE OF KERALA REPRESENTE DBY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM PIN-682031

BY ADVS.

SRI.SUMAN CHAKRAVARTHY, SR. GOVT.PLEADER ADDL.DIRECTOR GENERAL OF PROSECUTION

SR.SPL.GP (CRL.) SRI.S.U.NAZAR

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17.11.2021, ALONG WITH Crl.Rev.Pet.590/2017 AND CONNECTED CASES, THE COURT ON 18.03.2022 DELIVERED THE FOLLOWING: Crl.R.P.Nos.116, 234 and 590 of 2017

COMMON ORDER

These revisions are preferred by the first, third and second

accused respectively in S.C.No.68 of 2016 of Additional Sessions Court

IV Thodupuzha, in Crime No.1196 of 2012 Thodupuzha Police Station

for offences punishable under sections 143, 147, 148, 149, 307, 302,

118/302, 120B of 302 IPC and Section 3 r/w 25(1)(a) of the Arms Act.

2. The incident leading to the present case has a chequered

history. One Anchery baby was the leader of Congress party in Idukki

area. The members of the Marxist party maintained enmity towards

him, apprehending that, Baby was attracting the members of their

political party to his party. Consequently, few local leaders of Marxist

party entered into a criminal conspiracy on 14.10.1982 at 9 p.m, at the

Rajakkad area committee office of Marxist party and resolved to

commit murder of Baby and another person. In furtherance of the

above conspiracy, on 13.11.1982 at about 11 a.m. while Anchery Baby

along with PWs.1 to 6 (Johny, Benny, Mathachan, Sekharan, Sebastian

and Rajan) were proceeding along an estate footpath, few of the

accused, who were hiding behind the cardamom plants fired twice at

Baby with an unlicensed country gun. The third shot injured PW2,

Benny. They created a terror in the scene of occurrence and scared Crl.R.P.Nos.116, 234 and 590 of 2017

away the persons accompanying Baby and Benny. Baby died at the

spot and Benny sustained serious injuries. FIS of PW1, Johny was

recorded by the Santhampara Police on the same day at 1.45p.m. and

crime was registered as FIR No.118 of 1982. After investigation, final

report was laid against nine accused for offences punishable under

section 143, 147, 148, 149, 307, 302, 118 of 302, 120B of 302 and S.3

r/w 25(1)(a) of the Arms Act. All the nine accused faced trial in

S.C.No.58 of 1984. They were (A1) Panackal Kunjoonju @ Kesavan,

(A2) Joseph @ Jose, (A3) Mohandas, (A4) Lekshmanan, (A5) Jose, (A6)

Michael, (A7) Sugathan, (A8) Prasad and (A9) Baby. On the side of the

prosecution, PWs.1 to 18 were examined, Exts.P1 to P12 were marked

and Mos.1 to 18 were identified. On the side of the accused, DW1 was

examined and Exts.D1 to D7(a) were marked. Learned Sessions Judge,

on an appreciation of the entire evidence, found that the prosecution

failed to establish the allegations against the accused and acquitted all

the accused.

3. The above acquittal was challenged by the State in

Crl.Appeal.411 of 1986 before the High Court. By judgment dated

24.01.1990, the appeal was dismissed confirming the acquittal. The

above judgment has become final.

4. Much later, on 25.05.2012 at about 6 p.m., the revision

petitioner in R.P.No.590 of 2017 who was the District Secretary of the Crl.R.P.Nos.116, 234 and 590 of 2017

CPI(M) in Idukki, made a speech in a public meeting of the party at

Manakkad. In the speech, the revision petitioner is stated to have

warned the opposite party to be careful in conducting political actions

against the CPI(M). He stated that, during 1982 period, in

Santhanpara and Rajakkad area, CPI(M) had released a statement

referring to the names of 13 persons. The first 3 named were killed,

one after another. He also added that the first named was shot dead,

the second person was beaten to death and third person was stabbed

to death. On the basis of this speech, crime No.1196 of 2012 dated

28.05.2012 was registered by the Thodupuzha Police Station for

offences punishable under section 117(e) of the KP Act and Section

505(1)(b) of IPC. Final report was laid. On the basis of same speech,

Crime No.309 of 2012 dated 04.06.2012 was registered in Rajakkad

Police Station for offences punishable under Sections 118 of 302, 120B

of 302 and 34 of IPC.

5. Simultaneously, Santhanpara police filed Crl.M.P.No.2604 of

2012 in Crime No.118 of 1982 and Crl.M.P.No.2605 of 2012 in Crime

No.65 of 1983 which resulted in S.C.No.33 of 1984 before the Judicial

Magistrate, Nedumkandam invoking S.173(8) of Cr.P.C for further

investigation in the light of the disclosures allegedly made by the

above revision petitioner. It was alleged that the alleged incident

referred to the murder of two Congress party workers, from which, Crl.R.P.Nos.116, 234 and 590 of 2017

crime No.118 of 1982 and Crime No.65 of 1983 resulting in S.C.No.58

of 1985 and S.C.No.33 of 1984, respectively arose. The above Crl.M.Ps

were allowed by a common order dated 31.05.2012. Prosecution

thereafter filed final report in Crime No.309 of 2012 to close the FIR

since further investigation was progressing in Crime No.118 of 1982.

However, prosecution again filed Crl.M.A.No.5368 of 2012 for further

investigation in the crime relating to murder in Crime No.65 of 1983.

The above application was filed in Crl.Appeal.No.2010 of 2009, which

was pending at that point of time. Rejecting the request the Division

Bench hold that the contents of the so called declaration made by the

above revision petitioner in his speech did not in any manner give a

clear and complete link of any particular person or group of persons

having master minded or conveyed planning or executing the incident,

which led to the killing of the Congress party leader. Ultimately, the

accused therein were acquitted, which judgment was affirmed by apex

court in S.L.P.(Crl).No.9817 - 9818 of 2014. After investigation, final

report was laid in Crime No.118 of 1982 on 18.11.2015 for offences

punishable under Sections 143, 147, 148, 149, 307, 302, 118 of 302,

120B of 302 IPC and Section 3 r/w 25(1)(a) of the Arms Act.

Prosecution arrayed 91 witnesses and has produced several

documents. The revision petitioners herein and one Varkey Abraham

(since deceased) stood arrayed as accused Nos. 1 to 4. Cognizance was Crl.R.P.Nos.116, 234 and 590 of 2017

taken as S.C.No.68 of 2016 by the Additional Sessions Judge-IV,

Thodupuzha.

6. The allegation in the above final report in Crime No.118 of

1982 dated 18.11.2015 was that, on 14.10.1982, a procession led by

accused Nos. 1 to 3 herein, who were the District leaders of the

CPI(M), was attacked by rival party members. A1 to A3 believed that

the above assailants were instigated by Anchery Baby. Accordingly, on

the same day at 9 p.m., a secret meeting was held by the second and

third accused along with few others at local committee office at

Rajakkad. Second accused (revision petitioner in Crl.R.P.No.590 of

2017) allegedly informed the participants that they have resolved to

retaliate and to settle score with Anchery Baby and others and had

entrusted the job to Panackal Kunjoonju and Thadiyanpara Jose.

Prosecution further alleged that, in furtherance of the said conspiracy,

few accused camped in an estate building and watched the movement

of Baby. On 13.11.1982 at 11.a.m, while Baby and others reached the

spot along the estate footpath, accused in S.C.No.58 of 1985 along

with the present accused Nos.1 and 4 shot Baby twice with a country

gun. He sustained fatal injuries. They also shot Benny, who also

sustained injury. The first and fourth accused terrorized and scared

away others. Subsequently, under the directions of the present second

and third accused, the assailants were taken to various places and Crl.R.P.Nos.116, 234 and 590 of 2017

concealed them from the police. Later, they were arrested.

7. After appearance before the court below, accused 1 to 3

filed Crl.M.P.No.1225 of 2016 for discharge in S.C.No.68 of 2016. the

fourth accused had died. The application was dismissed, which is

challenged by the accused in these separate revisions.

8. Heard the learned senior counsel for the revision

petitioners, the Additional Director general of Prosecution and the

learned Public Prosecutor.

9. In these Crl.R.Ps', Crl.M.As' were filed by the brother of the

deceased Anchery Baby to get himself impleaded and to advance

arguments. The counsel for the defacto complainant was heard.

Examined the records produced.

10. The prosecution allegation in S.C.No.58 of 1985 of the

District and Sessions Judge, Thodupuzha was that, consequent to the

enmity maintained by the accused, who belonged to Marxist

Communist Party against the deceased and CWs.1 to 6, who were

active members of Congress party, the accused entered into a

conspiracy on 14.10.1982 to cause death of Anchery Baby and others

and in furtherance of that conspiracy, on 13.11.1982, while deceased

Baby and CWs.1 to 6 were proceeding from Melechemmannar to

Santhanpara, via an estate way, the accused waited in the cardamom

plantation and while the party reached the spot, Baby was shot dead Crl.R.P.Nos.116, 234 and 590 of 2017

by accused Nos.1 and 2. CW2 Benny was hit on the forehead from

another shot from the first accused. CW2 Benny was admitted in the

hospital. All the accused faced charge on the above grounds. After

trial, the Sessions Court acquitted all the accused.

11. The Sessions Judge had held that, there was considerable

delay in sending the FIR to Court. FIS was recorded on 13.11.1982 at

1.45 p.m and the names of all the accused were mentioned in the FIS

itself. It reached the Court only on 16.11.1982 at 10.30 a.m. The

scene mahazar, inquest report and other records reached the Court

much later. The Court found that, there was no explanation for the

considerable delay of 3 days in sending the FIR to the Court. Even

though a feeble attempt was made to explain the delay by contending

that there were two intervening holidays, that was also brushed aside

by the Sessions Judge, holding that, still, there were other working

days in between. It was held that the FIS was delayed, probably to fix

the names of the accused and to incorporate it in the FIS. Another

reason given by the court below was that, though MO1 and MO2 guns

were introduced in evidence, the ballistic expert had reported that,

MO1 had an ineffective firing mechanism. In the case of MO2, ballistic

expert could not say whether it could be used. Though cartridge cases

were seized as MO.10, there was no material evidence to show that,

they were ejected from MO1 gun. Hence, the Court concluded that, Crl.R.P.Nos.116, 234 and 590 of 2017

there was no reliable evidence to show both that the guns were used to

commit the crime and that, gun was usable at the time of its alleged

use. It was also held by the court that the evidence regarding recovery

of guns was also not reliable.

12. Learned Session Judge at page 11 of the judgment

specifically held that, no evidence was available to establish the

allegation of conspiracy to form an unlawful assembly. Regarding the

alleged role played by the accused, the Court noted that, there were

inconsistencies in the versions of PWs.1 to 3 who were projected as

crucial eye witnesses to the incident. Pws.1 to 3 had asserted that,

they have seen the first and second accused with guns. They had also

asserted that, they saw all the nine accused at the spot. The court held

that the version of the witnesses that, two persons who were standing

at some distance apart, behind two separate trees, fired at the same

moment simultaneously, was impossible to be believed. The Court held

that the versions of PWs.1 to 3 were inconsistent. The Court also

found that the recovery of the guns from the party office was also not

believable. To conclude, the court held that the prosecution versions

regarding murder of Baby was unbelievable and acquitted all the

accused. Though this was challenged in Crl.Appeal.No.411 of 1986,

the Division Bench of the High Court concurred with the findings and

dismissed the appeal by judgment dated 24.01.1990. That judgment Crl.R.P.Nos.116, 234 and 590 of 2017

has become final and conclusive.

13. The present prosecution in S.C.No.68 of 2016 had its origin

consequent to few revelations allegedly made in the course of a public

speech made thirty years after the murder of Baby by the present

second accused. In the course of his public speech, he referred to a

concerted and planned murder of several political opponents including

Anchery Baby by his party. He stated that, his party had released a

statement referring to few political opponents. The first person in the

list was beaten to death and the second was shot dead. This speech

led to the further investigation in Crime No.118 of 1982 of

Santhanpara Police Station and laying of final chargesheet dated

18.11.2015. In the present charge, the prosecution allegation has two

limbs. One is that, present accused No.2 and 3, along with the original

accused had entered into a criminal conspiracy to commit murder of

Anchery Baby and others and in prosecution of the criminal conspiracy,

committed murder of Baby. Chargesheet further alleges that,

consequent to the attack on the procession dated 14.10.1982

conducted by the Marxist party, at the alleged instance of Anchery

Baby and others, a secret meeting was urgently convened at 9 p.m on

14.10.1982 at the Rajakkad Area Committee Office. Second part of the

allegation was that, at the local committee office of the party at

Rajakkad on 14.10.1982 A2 and A3 are stated to have informed few Crl.R.P.Nos.116, 234 and 590 of 2017

other reliable members of the party that, Baby and others were

creating problems for the party and hence, the above accused have

engaged the first and second accused, Panackal Kunjoonju and

Thadiyanpara Jose, for certain action. Persons who were present were

informed to be cautious and warned that, in that connection, if any

crime was registered implicating them, they should be careful and

should protect the others. In furtherance of that conspiracy, the

accused on 28.10.1982 at 9.30 a.m., attacked the congress party office

and hurled bombs at the office. Thereafter, they kept watch on the

movement of Baby and on 13.11.1982 at 11.30 a.m. the accused who

were acquitted in S.C.No.58 of 1985 along with accused Nos.1 and 4 in

the present crime, under the instructions of present second and third

accused and opened fire at Baby and others, which led to the death of

Anchery Baby .

14. Chargesheet in S.C.No.68 of 2016 is based on the further

investigation conducted in Crime No.118 of 1982, pursuant to the

speech made by the second accused. In the present case, accused

Nos.2 and 3 are alleged to be persons who have master minded the

conspiracy and after execution of the crime, took steps to screen the

offenders. The crux of the prosecution allegation is that, in pursuance

of the conspiracy, accused Nos.1 to 9 in S.C.No.58 of 1985 along with

accused Nos.1 and 4 in S.C.No.68 of 2016 committed murder of Baby Crl.R.P.Nos.116, 234 and 590 of 2017

and inflicted injuries on Benny. The fundamental improvement in the

present prosecution case is that the newly arrayed accused Nos.1

Pampupara Kuttappan @Kuttappan and fourth accused Varkey

Abraham along with the same 9 accused in S.C.No.58 of 1985, who

stands acquitted, also participated in the murder. The further main

allegation is that the present accused 2 and 3 were the main

conspirators.

15. In this regard, the findings arrived at by the court below in

S.C.No.58 of 1985 regarding the involvement of all accused in that

sessions case assumes significance. As referred to in paras 11 and 12,

the findings of the Sessions Court on the appreciation of all crucial eye

witnesses to the incident was that the version regarding simultaneous

firing from two guns by two assailants apart, at a distance was

impossible, that there was total lack of expert evidence that, MO1 and

MO2 were in working condition, that there was no evidence to

establish conspiracy and that, there was delay in sending the FIR to

Court completely demolished the prosecution case. All the findings on

evidence, regarding the commission of offence, were fundamental in

nature affecting the very substratum of the prosecution case. Now the

very same set of witnesses are sought to be arrayed to implicate the

present first and fourth accused, who are stated to have participated in

the action. When the very edifice on which the entire prosecution case Crl.R.P.Nos.116, 234 and 590 of 2017

was set up has crumbled down, in the earlier round, I find it nearly

impossible to built up the prosecution case again as now alleged, with

any number of new witnesses.

16. Another fundamental flaw in S.C.No.68 of 2016 is that,

though all the accused in S.C.No.58 of 1985 are stated to have acted

along with accused Nos.1 and 4 in present case, in committing the

murder, the persons who stood arrayed earlier as accused Nos. 3, 4, 5,

6 and 8, now stand transposed as prosecution witnesses CW Nos.9, 12,

13, 14 and CW11 respectively. Among them, the then third accused

Mohandas is now projected as the crucial witness regarding the

conspiracy that allegedly took place on 14.10.1982 at the Rajakkad

Local Office.

17. As mentioned above, the crux of the prosecution allegation

in the present crime is that, all the accused in S.C.No.58 of 1985 along

with accused Nos.1 and 4 in S.C.No.68 of 2016, participated in the

murder. The role attributed to the present accused Nos.1 and 4 is that,

they had joined the action, in firing gun shot at Baby and the injured.

Strangely, several among those accused who were acquitted now stand

arrayed as the prosecution witnesses, inspite of the specific allegation

in S.C.No.68 of 2016 also that they had actually participated in the

murder of Baby along with present accused 1 and 4. The original third

accused now stands as CW9, fourth accused as CW12, fifth accused as Crl.R.P.Nos.116, 234 and 590 of 2017

CW13, sixth accused as CW14 and eighth accused as CW11. Thus,

while the prosecution reiterate that the accused in the original crime

remain as the assailants along with present accused Nos.1 and 4 in the

present crime, some of the previous accused are now arrayed as

prosecution witnesses.

18. As mentioned earlier, CWs.1 to 6 were projected as the

crucial witnesses in S.C.No.58 of 1985. Among them, CW1 was

examined as PW1. CW2 was examined as PW2 and CW4 was examined

as PW3. CW3 was not examined. CW6 who was examined as PW4, was

declared hostile. Same set of witnesses are now relied on by the

prosecution to establish the crime as against first and fourth accused

(since deceased). CW1 is Benny, who was earlier examined as PW2.

CW1 in his evidence has essentially relied on the motive and the

enmity between the Congress Party members as against the Marxist

party. The only improvement now made by him is that, along with the

first and second accused in S.C.No.58 of 1985, he had seen

Pampumpara Kuttan who is at present arrayed as the first accused. At

the same time, he has reiterated and affirmed presence of Kottayam

Prasad among the accused. He had stated that, Kottayam Prasad was

among the assailants. According to him, though he had seen

Pampupara Kuttan along with the accused and had disclosed it to the

investigating officer, when his statement was earlier recorded in Crl.R.P.Nos.116, 234 and 590 of 2017

S.C.No.58 of 1985, it was not added. However, neither his present

version that Kuttan was among the assailants or that, he had

mentioned about Kuttan to the investigating officer is not seen spoken

in the Court, when he was examined in Court. The non reference of

name of Pampupara Kuttan in the original statement given by CW1 is

explained by him in the above circumstances. CW2 Benny was

questioned on 09.07.2012 and his further statement was recorded. He

merely reiterated this earlier version, referring to the enmity between

both the groups. A further statement of him was recorded on

04.12.2012. In that, he affirmed that at the time of incident, he had

seen Pampumpara Kuttan along with the remaining accused. However

had added that, he came to know about the presence of Pampumpara

Kuttan only later, thereby affirming that his version regarding the

presence of the present accused is based on subsequent confirmation.

19. CW3 in his version had stated that, he had seen

Pampumpara Kuttan along with the 6 th accused in S.C.No.68 of 2016.

CW3 did not know his name at that point of time. Non reference to the

name of Kuttan by CW2 and CW3 or that, they saw the presence of an

identifiable person in the S.161 Cr.P.C statement casts serious doubt

on the versions of CW2 and CW3.

20. When CW3 was examined in Court, he deposed that the

CPM members had threatened him. Statement of Dasan was recorded Crl.R.P.Nos.116, 234 and 590 of 2017

on 04.12.2012. He had referred to the enmity between both the

political parties and that, CPM had decided to kill Anchery Baby and

others and in furtherance of that, they had fired at and threw country

bombs at him. He specially attributed the role of Pampupara Kuttan by

stating that, he had seen Kuttan standing behind the bushes. He

further stated that, Kuttan took country bombs from a bucket and

threw it. However, there is nothing to show that, in the earlier round

of litigation, such a version was spoken when he was examined in

Court or the scene mahazar prepared in S.C.No.58 of 1985 disclosed

that, bombs were recovered from the scene of occurrence. He

explained that, he did not mention Kuttan's name earlier, since he was

threatened by the Marxist party members.

21. CW4 is another crucial witness now projected by the

prosecution as the witness to the incident. In his statement, he has

referred to the enmity between both the political parties and the

attempt of Marxist party to cause death of Anchery Baby and others.

He had stated that, there were more than 9 members present at the

time of incident. This was contrary to the earlier prosecution case that

there were only 9 assailants. He specifically asserted that, he had

seen Kottayam Prasad, Mohandas and Lekshmanan among the

assailants. The most crucial aspect of the version of CW4 is that, the

above three persons who were arrayed as accused Nos.8, 3 and 4 Crl.R.P.Nos.116, 234 and 590 of 2017

respectively in S.C.No.58 of 1985, now stand arrayed as witnesses on

the prosecution side as CW11, CW9 and CW12. Thus, when the

prosecution alleges that, Prasad Mohandas and Lekshmanan were

wrongly arrayed in the earlier case and that, they are now projected as

the prosecution witness, another crucial eye witness to the prosecution

affirms that, these three persons were present among the assailants.

This is a self contradictory and mutually damaging version to the

prosecution case itself.

22. CW4 Mathew @ Mathachan was examined as PW3 earlier.

He has asserted that, first accused Kesavan @ Kunjunju had shot Baby.

He had referred to the presence of Lekshmanan, Mohandas, Jose and

Kottayam Prasad among the assailants. This is also contrary to the

present specific version of the prosecution. CW6 is one Sekharan who

was examined as PW4 earlier, but was declared as hostile. In the

statement given by him to the police in the present case, he stated

that, he had accompanied Baby at the time of incident. He affirmed

that, he had seen Panackal Kunjoonju, local committee member

Lekshmanan, Kottayam Prasad and Kuttan among the assailants. He

asserted that, Kuttan had thrown bombs at the injured. However,

there was no finding by the trial court in S.C.No.58 of 1985 that bombs

were thrown at or that evidences of bombs were found at the spot.

23. The above suffers from another serious and basic flaw. The Crl.R.P.Nos.116, 234 and 590 of 2017

present CW1 has specifically stated in his S.161 Cr.P.C. statement,

recorded in the further investigation, that he had seen Kottayam

Prasad among the assailants. Kottayam Prasad who was the original

8th accused now stands arrayed as CW11 among the prosecution

witnesses. Further, CW4 has also stated that, among the assailants, he

had seen Kottayam Prasad. Thus, when the prosecution alleges that

present A1 and A4 along with all the earlier accused committed crime,

some of the earlier accused are proposed now as prosecution witness.

However, the present witnesses have reiterated the presence of such

earlier accused along with the present accused. CW3 Dasan had

stated that, there were more than 9 persons among the accused.

Again, the situation is made more complex by the evidence of

witnesses CW1, CW3 and CW4 who have asserted that, some of the

present prosecution witnesses were seen by them among the accused.

The present prosecution witnesses have specially stated that, they

have seen CW9, CW11 and CW12 among the assailants. Further, when

the prosecution eye witnesses were examined in S.C.No.58 of 1984, all

of them referred to the presence of 9 accused at the spot and did not

depose about presence of any other assailants. None of the above eye

witnesses had referred to presence of any person other than the 9

accused at the time of incident. This has resulted in a very complex

situation, by which, diametrically opposite materials are brought on Crl.R.P.Nos.116, 234 and 590 of 2017

record.

24. An evaluation of these materials show that in so far as the

prosecution tries to now project the incident, leading to the death of

Anchery Baby, mutually contradictory and self damaging materials

touching the substratum of the prosecution are available on record.

Definitely, prosecution will find it nearly impossible to get over those

materials on record.

25. To establish the second major limb of the prosecution case,

which is the theory of conspiracy, by second and third accused, on

14.10.1982 at the office of the Rajakkad area committee, prosecution

specifically relies on the versions of CW9 Mohandas and CW15. As

indicated earlier, CW9 faced the trial in the earlier round of trial as an

accused. In the statement now given by him to the investigating

officer, he has specifically referred to the conspiracy involving second

and third accused. He stated that, few days prior to the murder of

Baby, he was called to the Rajakkad area committee office. Jeep was

sent to him and was taken to the local committee office. Jeep was

driven by one Sadan, who was the son in law of District Committee

Member Secretary A.K Damodaran. He stated that, when he reached

the office, he was taken to a room, wherein, present second and third

accused were present, along with few others. The second accused is

stated to have informed them that, congress party and police were Crl.R.P.Nos.116, 234 and 590 of 2017

creating obstructions to the functioning of the party. Baby and

Ponnappan Pillai were behind them. Hence, it was informed by the

second accused, that they have taken certain decisions to handle Baby

and Ponnappan Pillai. Kunjoonju and Jose have been instructed. He

further added that, some of the party members may be arrayed as

accused and they should take care that the party was completely

protected. 10-20 days thereafter, Baby was murdered. According to

him, police implicated several party members in that murder. This

version of CW9 along with the versions of PWs.1 to 6 are now

essentially relied by prosecution to establish the conspiracy.

Notwithstanding that the above witness has faced the trial earlier as

accused and now has become prosecution witness, even now, few

crucial prosecution eye witnesses have affirmed the presence of CW9

among the accused. As indicated earlier, this has resulted in a very

complex situation.

26. CW9, in his statement had stated that the driver who had

taken him to the Rajakakd area committee office was one Sadan @

Sadananan. The above Sadan @ Sadananan was arrayed as CW15 in

the present final report. His statements were recorded on 19.06.2012

and on 30.07.2012. In both the statements, he had asserted that,

Rajakkad area committee had a jeep No.KL-1850, but did not have a

permanent driver. Whenever required, he was called to drive the Crl.R.P.Nos.116, 234 and 590 of 2017

vehicle. He specifically reiterated that, he had taken CW9 and o ther

party leaders in that jeep to different places. Referring to the incident

of 1982, in which, the procession led by the present second and third

accused was attacked allegedly by the congress party members under

the leadership of Anchery Baby, CW15 stated that, he had taken

accused 2 and 3 in the jeep to the place of commencement of

procession. He followed procession in the jeep till it reached Vatapara.

He parked the vehicle there. After sometime bombs were hurled.

Accused 2 and 3 were thereafter taken to the Santhanpara police

station. He has specifically asserted that, he had not gone to

Udampanchola, Rajakkad and few other named places on that day. In

both the statements of CW15 recorded by the police, he had not even

referred to the prosecution case that he had taken CW9 to the

Rajakkad local committee office on that day. Clearly, the version of

CW9 that he had proceeded to the local committee office wherein the

conspiracy took place on the relevant day in the jeep of PW15 is not

supported by CW15 itself. Essentially, this should cut at the very root

of the prosecution case. It is also pertinent to note that, this version of

conspiracy was not projected at point of time in the earlier round of

trial. Definitely, prosecution cannot make such an allegation at

different point of time long thereafter, unless some new materials are

unearthed. However, in the present case, though the prosecution has Crl.R.P.Nos.116, 234 and 590 of 2017

a specific allegation of conspiracy in S.C.No.58 of 1985, no material

was placed before the prosecution and trial court had specifically held

that conspiracy was not established. In the present case, evidence let

in by the prosecution is insufficient to direct the accused to face the

trial. Definitely, they are entitled for discharge.

27. Vehemently, contending that the accused are entitled for

the discharge, learned senior counsel for the accused referred to the

decisions reported in P.Vijayan v. State of Kerala and Others

[(2010)2 SCC 398], State of Karnataka v. L.Muniswamy and

Others {1977 SCC (Crl). 404] and Abdul Rasak @ Abu Ahmed v.

Union of India and Others [2021(5) KHC 181 (DB)]. Learned

counsel for the impleading petitioner on the other hand relied on the

decisions reported in Sankaran v. Ambulakshan Nair [1989 KHC

473], Central Bureau of Investigation v. Mukesh Pravinchandra

Shroff and Others [2009 KHC 6291]. All those decisions refer to

the parameters to be followed by the Court while considering the

discharge application.

28. While exercising jurisdiction under Section 239 of Cr.P.C.,

the trial court is bound to look into the entire materials on record,

which the prosecution proposes to rely on. On an evaluation of the

available materials, if it is found that, there is no ground for presuming

that the accused has committed the offence, the charge must be Crl.R.P.Nos.116, 234 and 590 of 2017

considered to be groundless and the accused is entitled for discharge.

The Hon'ble Supreme Court in Century Spinning and

Manufacturing C0.Ltd. v. The State of Maharashtra ( AIR 1972

Supreme Court 545) had held that, if there is no ground for

presuming that the accused has committed an offence, the charges

must be considered to be groundless which is the same thing as saying

that there is no ground for framing the charges. The Apex Court

further held that, this necessarily depends on the facts and

circumstances of each case and the Magistrate is entitled and indeed

has a duty to consider the entire material referred to in sub section (2)

of Section 251A Cr.P.C. 1898.

29. Essentially, this exercise means that, from the available

materials either offence alleged as such has not been made out or the

crucial ingredients for constituting the offence have not been made

out. It has to be distinct from a case where there is insufficiency of

evidence which definitely cannot lead to a conclusion that charge was

groundless. However, incidently, cases may arise wherein the

materials gathered by the investigating agency may either be

absolutely inconsistent to each other or self destructive to the

prosecution case or may be mutually contradictory with other

materials gathered by the investigating agency. Hence, if the

materials gathered by the investigating agency and relied on by them, Crl.R.P.Nos.116, 234 and 590 of 2017

contradict each of the other materials, so as to affect the substratum of

the case, though materials indicate offence but, as a whole, when both

are let in contradict itself thereby strike at the very root of the

prosecution case, there is no reason as to why the prosecution should

be permitted to proceed with such a trial, which would end in failure.

In the case at hand, it is clear that, few witnesses have deposed

touching on the complicity of the newly arrayed accused. At the same

time, they themselves reaffirmed the presence of some of the present

prosecution witnesses, who earlier stood arrayed as accused. This not

only strike at the very base of the prosecution case but tells upon the

credibility of them. With these material, a trial of accused is not

possible.

In the result, Crl.R.Ps are allowed. Impugned orders are set

aside and the discharge application stands allowed. All the revision

petitioners/accused stand discharged.

Sd/-

SUNIL THOMAS JUDGE Sbna/ Crl.R.P.Nos.116, 234 and 590 of 2017

APPENDIX CRL.R.P.590/2017 PETITIONERS ANNEXURES

ANNEXURE A : TRUE COPY OF FIR AND FI STATEMENT IN CRIME NO.118 OF 1982 OF SANTHANPARA POLICE STATION ANNEXURE B : TRUE COPY OF JUDGMENT IN S.C.NO.58 OF 1985 OF SESSIONS COURT, THODUPUZHA DTD 21.03.1986 ANNEXURE C : TRUE COPY OF JUDGMENT IN CRL.APPEAL.NO.411 OF 1986 AGAINST S.C.NO.58/1985 DATED 24.01.1990 OF HIGH COURT OF KERALA ANNEXURE D : TRUE COPY OF FINAL REPORT IN CRIME NO.1196 OF 2012 OF THODUPUZHA POLICE STATION ANNEXURE E : TRUE COPY OFCOMMON ORDER IN CRL.M.P.2604/2012 AND CRL.M.P.2605/2012 IN RESPECT OF CRIME NO.118/1982 AND CRIME NO.65/1983 OF SANTHANPARA POLICE STATION DATED 31.05.2012 OF JUDICIAL FIRST CLASS MAGISTRATE, NEDUMKANDOM ANNEXURE F : TRUE COPY OF FIR DATD 04.06.2012 AND FINAL REPORT DTD 27.06.2012 IN CRIME NO.309/2012 OF RAJAKKAD POLICE STATION ANNEXURE G : TRUE COPY OF ORDER IN CRL.M.A.NO.5368/2012 AND 7232/2014 IN CRL.APPEAL.NO.2010/2009 DTD 24.11.2014 OF THIS HON'BLE COURT ANNEXURE H : TRUE COPY OF ORDER IN SLP (CRL) NOS.9817-9818/2014 DTD 06.01.2015 OF HON'BLE SUPREME COURT OF INDIA ANNEXURE I : TRUE COPY OF FINAL REPORT IN CRIME NO.118/1982 DTD 18.11.2015 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUNGANDAM Crl.R.P.Nos.116, 234 and 590 of 2017

APPENDIX CRL.R.P.116/2017

PETITIONERS ANNEXURES

ANNEXURE A : TRUE COPY OF FIR AND FI STATEMENT IN CRIME NO.118 OF 1982 OF SANTHANPARA POLICE STATION ANNEXURE B : TRUE COPY OF JUDGMENT IN S.C.NO.58 OF 1985 OF SESSIONS COURT, THODUPUZHA DTD 21.03.1986 ANNEXURE C : TRUE COPY OF JUDGMENT IN CRL.APPEAL.NO.411 OF 1986 AGAINST S.C.NO.58/1985 DATED 24.01.1990 OF HIGH COURT OF KERALA ANNEXURE D : TRUE COPY OF FINAL REPORT IN CRIME NO.1196 OF 2012 OF THODUPUZHA POLICE STATION ANNEXURE E : TRUE COPY OFCOMMON ORDER IN CRL.M.P.309/2012 OF RAJAKKAD POLICE STATION DTD 04.06.2012 ANNEXURE F : TRUE COPY OF REPORT IN CRIME NO.309/2012 OF RAJAKKAD POLICE STATION ANNEXURE G : TRUE COPY OF ORDER IN CRL.M.A.NO.5368/2012 AND 7232/2014 IN CRL.APPEAL.NO.2010/2009 DTD 24.11.2014 OF THIS HON'BLE COURT ANNEXURE H : TRUE COPY OF ORDER IN SLP (CRL) NOS.9817-9818/2014 DTD 06.01.2015 OF HON'BLE SUPREME COURT OF INDIA ANNEXURE I : TRUE COPY OF FINAL REPORT IN CRIME NO.118/1982 DTD 18.11.2015 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUNGANDAM Crl.R.P.Nos.116, 234 and 590 of 2017

APPENDIX CRL.R.P.234/2017

PETITIONERS ANNEXURES

ANNEXURE A : TRUE COPY OF FIR AND FI STATEMENT IN CRIME NO.118 OF 1982 OF SANTHANPARA POLICE STATION ANNEXURE B : TRUE COPY OF JUDGMENT IN S.C.NO.58 OF 1985 OF SESSIONS COURT, THODUPUZHA DTD 21.03.1986 ANNEXURE C : TRUE COPY OF MEMORANDUM OF CRL.APPEAL NO.411/1988 AND JUDGMENT IN CRL.APPEAL.NO.411 OF 1986 AGAINST S.C.NO.58/1985 DATED 24.01.1990 OF HIGH COURT OF KERALA ANNEXURE D : TRUE COPY OF FINAL REPORT IN CRIME NO.1196 OF 2012 OF THODUPUZHA POLICE STATION ANNEXURE E : TRUE COPY OFCOMMON ORDER IN CRL.M.P.2604/2012 AND CRL.M.P.2605/2012 IN RESPECT OF CRIME NO.118/1982 AND CRIME NO.65/1983 OF SANTHANPARA POLICE STATION DATED 31.05.2012 OF JUDICIAL FIRST CLASS MAGISTRATE, NEDUMKANDOM ANNEXURE F : TRUE COPY OF FIR DATD 04.06.2012 AND FINAL REPORT DTD 27.06.2012 IN CRIME NO.309/2012 OF RAJAKKAD POLICE STATION ANNEXURE G : TRUE COPY OF ORDER IN CRL.M.A.NO.5368/2012 AND 7232/2014 IN CRL.APPEAL.NO.2010/2009 DTD 24.11.2014 OF THIS HON'BLE COURT ANNEXURE H : TRUE COPY OF ORDER IN SLP (CRL) NOS.9817-9818/2014 DTD 06.01.2015 OF HON'BLE SUPREME COURT OF INDIA ANNEXURE I : TRUE COPY OF FINAL REPORT IN CRIME NO.118/1982 DTD 18.11.2015 FILED BEFORE THE JUDICIAL FIRST Crl.R.P.Nos.116, 234 and 590 of 2017

CLASS MAGISTRATE COURT, NEDUNGANDAM