Karuvangadan Mukthar @ Muthu vs The Deputy Superintendent Of Police
2024 Latest Caselaw 10675 Ker

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.
            -------------------------------------------------------
                 Crl.M.Appln.Nos.2 & 5 of 2023 in
                     Crl.Appeal No.725 of 2023
            ------------------------------------------------------
              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

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

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

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

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

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

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

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

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

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

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

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

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

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

(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