Kerala High Court
State vs K.K. Krishnan on 27 February, 2024
Bench: A.K.Jayasankaran Nambiar, Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A.NO.172 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE -
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANT/ACCUSED NO.8:
K.C. RAMACHANDRAN
S/O.KELAPPAN, AGED 52/12, JAYASURA HOUSE,
KUNNUMMAKARA P.O., KOZHIKODE.
BY ADV. SRI.K.M.RAMADAS
BY ADV.SRI.ARUN BOSE.D
BY ADV.SRI.K.VISWAN(K/416/1993)
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 2 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A NO.174 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE -
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANT/ACCUSED NO.18:
P.V.RAFEEK ALIAS VAZHAPADACHI RAFEEK
AGED 38, S/O.HAMSA, VALIYA PUTHALATH HOUSE,
PALLUR POST, MAHE.
BY ADV.SRI.ARUN BOSE.D
BY ADV.SRI.K.VISWAN(K/416/1993)
BY ADV.SRI.JAISON JOSEPH(J-573)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682031
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 3 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A.NO.176 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANT/ACCUSED NO.13:
1 PADINJARE KUNHIKKATTIL KUNHANANDAN
AGED 64 YEARS
S/O.KANNAN NAIR, KELOTHANTAVIDA, KOLAVALLUR POST,
KUNNOTH PARAMBA PANCHAYATH, KANNANGODE, KANNUR.(DIED)
2 ADDITIONAL APPELLANT
SANTHA V.P.
AGED 61 YEARS
W/O. LATE KUNHANANDAN, KELOTHANTAVIDA, THOOVAKUNNU,
KOLAVALLOOR, KUNNOTH PARAMBA PANCHAYATH, KANNANGODE,
KANNUR DISTRICT, PIN-670693.
ADDL. APPELLANT IS IMPLEADED AS PER ORDER DATED
7/7/2020 IN CRL.M.A.NO.4/2020.
BY ADV.SRI.P.N.SUKUMARAN
BY ADV.SRI.ARUN BOSE.D
BY ADV.SRI.K.VISWAN(K/416/1993)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 4 ::
& 403/2014 & CRA(V).
No.571/2015
HIGH COURT OF KERALA,
ERNAKULAM 682031
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 5 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A.NO.177 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANTS/ACCUSED NO.1-3:
1 ANOOP
AGED 30 YEARS, S/O.GANGADHARAN, MANGALASSERY HOUSE,
PUTHOOR AMSOM, CHENDAYAD, PADANTHAZHA, KANNUR.
2 MANOJ KUMAR @ KIRMANI MANOJ
AGED 30 YEARS
S/O.GANGADHARAN, NADUVIL MALAYATTE HOUSE,
PANTHAKKAL P.O., MAHE.
3 N.K.SUNIL KUMAR @ KODI SUNI
AGED 29 YEARS
S/O.SURENDRAN, MEETHALE CHALIL HOUSE,
CHOKLI AMSOM, NIDUMBRAM, KANNUR DISTRICT.
BY SRI.B.RAMAN PILLAI (SR.)
BY ADV.SUJESH MENON V.B.
BY ADV.SRI.ARUN BOSE D
BY ADV.SRI.K.VISWAN(K/416/1993)
BY ADV.SRI.R.ANIL
BY ADV.SRI.THOMAS ABRAHAM (NILACKAPPILLIL)(K/857/2011)
BY ADV.SRI.THOMAS SABU VADAKEKUT(KL/001082/2017)
BY ADV.SRI.MAHESH BHANU S.(K/1620/2018)
BY ADV.SRI.RESSIL LONAN(K/1251/2020)
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 6 ::
& 403/2014 & CRA(V).
No.571/2015
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM 682031
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 7 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A.NO.178 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANTS/ACCUSED NOS.4 TO 7:
1 RAJEESH THUNDIKKANDI @ T.K.
AGED 35 YEARS, S/O.VELAYUDHAN,
KARAYINTAVIDA HOUSE, PATHAYAKUNNU.P.O.,
PATTIAM, KANNUR DIST.
2 K.K. MUHAMMED SHAFI @ SHAFI
AGED 29 YEARS
S/O.MOIDU, PARAMBATH HOUSE,
NEAR CHOKLI ORIENTAL SCHOOL,
KANNUR DIST.
3 SIJITH.S. @ ANNAN SIJITH
AGED 25 YEARS
S/O.SURENDRAN, PALORTHA HOUSE, CHAMBAD.P.O.,
ARAYAKKOOL, KANNUR DISTRICT.
4 K. SHINOJ
AGED 30 YEARS
S/O.ACHUTHAN, KANNATTINKAL HOUSE,
AASHIRAVAD NIVAS, KOHINOOR, PALLUR, MAHE.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 8 ::
& 403/2014 & CRA(V).
No.571/2015
BY SRI.B.RAMAN PILLAI (SR.)
BY ADV.SRI.JAISON JOSEPH
BY ADV.SRI.ARUN BOSE.D ABD
BY ADV.SRI.K.VISWAN(K/416/1993)
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 9 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A.NO.179 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE -
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANT/ACCUSED NO.31:
PRADEEPAN M.K. @ LAMBU
AGED 36 YEARS, S/O.GOPALAN, MARAM KUNNUMMAL HOUSE,
CHOKLI POST, KANNUR.
BY ADV.SRI.ARUN BOSE.D
BY ADV.SRI.K.VISWAN(K/416/1993)
BY ADV.SRI.K.M.RAMADAS(K/1023/1993)
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 10 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A.NO.180 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE -
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANT/ACCUSED NO.11:
MANOJAN @ TROUSER MANOJAN
S/O.GOVINDAN, VADAKKEYIL HOUSE, CHERUPARAMBA POST,
KALAVALLOOR AMSOM, THUVVAKKUNNU, KANNUR DISTRICT.
BY ADV.SRI.K.VISWAN
BY ADV.SRI.ARUN BOSE.D
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 11 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A.NO.339 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE -
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE,
CRIME BRANCH CID, HHW-III, KOZHIKODE,
SUB UNIT KANNUR.
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
RESPONDENTS/ACCUSED:
1 ANOOP (A1)
AGED 30 YEARS, S/O.GANGADHARAN,
MANGALASSERY HOUSE, PUTHOOR AMSOM, CHENDAYAD,
PADANTHAZHA, KANNUR - 670 692.
2 MANOJ KUMAR @ KIRMANI MANOJ (A2)
AGED 30 YEARS, S/O.GANGADHARAN,
NADUVIL MALAYATTE HOUSE, PANTHAKKALA P.O,
MAHE. 633 310.
3 N.K.SUNIL KUMAR @ KODI SUNI (A3)
AGED 29 YEARS, S/O.SURENDRAN, MEETHALE CHALIL HOUSE,
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 12 ::
& 403/2014 & CRA(V).
No.571/2015
SHARON VILA, CHOKLI AMSOM, NIDUMBRAM,
KANNUR DISTRICT. 670 672.
4 RAJEESH THONDIKKANDI @ T.K (A4)
AGED 33 YEARS, S/O.VELAYUDHAN, KARAYIANTAVIDA HOUSE,
PATHAYAKUNNU P.O, PATTIAM, PUTHIYATHERU,
KANNUR DISTRICT. 670 691.
5 K.K.MUHAMMED SHAFI @ SHAFI (A5)
AGED 27 YEARS, S/O.MOIDU, PARAMBATH HOSUE,
NEAR CHOKLI ORIENTAL SCHOOL,
KANNUR DISTRICT. 670 672.
6 SIJITH.S @ ANNAN SIJITH (A6)
AGED 23 YEARS, S/O.SURENDRAN, PALORATH HOUSE,
CHAMPAD P.O, ARAYAKKOOL, KANNUR DISTRICT. 670 692.
7 K.SHINOJ (A7)
AGED 28 YEARS, S/O.ACHUTHAN,
KANNANTTINKAL HOUSE, ASHIRVAD NIVAS, KOHINOOR,
PALLUR, MAHE 677 310.
8 K.C.RAMACHANDRAN (A8)
AGED 52 YEARS, S/O.KELAPPAN, JAYASURA HOUSE,
KUNNUMMAKKARA P.O, KOZHIKODE DISTRICT. 673 308.
9 MANOJAN @ TROUSAR MANOJAN (A11)
AGED 47 YEARS, S/O.GOVINDAN, VADAKKEYIL HOUSE,
CHERUPARAMBA POST, KOLAVALLUR AMSOM, THUVVAKKUNNU,
KANNUR 670 693.
10 PADINJARE KUNHIKKATTIL KUNHANANDAN (A13)
AGED 62 YEARS, S/O.KANNAN NAIR, KELOTHANTAVIDA,
KOLAVALLUR POST, KUNNOTH PARAMBA PANCHAYATH,
KANNANGODE 670 692.
11 P.V.RAFEEK @ VAZHAPPADACHI RAFEEK (A18)
AGED 36 YEARS, S/O.HAMSA, VALIYA PUTHALATH HOUSE,
PALLUR POST, MAHE 677310.
12 PRADEEPAN M.K @ LAMBU (A31)
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 13 ::
& 403/2014 & CRA(V).
No.571/2015
AGED 34 YEARS, S/O.GOPALAN, MARAM KUNNUMMAL HOUSE,
CHOKLI POST, KANNUR. 670 672.
BY ADV.SRI.P.VIJAYA BHANU (SR.)(K/421/1984)
BY ADV.SRI.ARUN BOSE.D
BY ADV.SRI.GILBERT GEORGE CORREYA
BY ADV.SRI.K.VISWAN(K/416/1993)
BY ADV.SRI.ABHIJITH M.A(K/001523/2021)
BY ADV.SMT.THANUSHREE DAMODARAN(K/1566/2022)
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 14 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRL.A.NO.403 OF 2014
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE -
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANT/COMPLAINANT:
STATE
REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE,
CRIME BRANCH CID, HHW-III, KOZHIKODE,
SUB UNIT KANNUR THROUGH P.P., HIGH COURT, ERNAKULAM.
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
RESPONDENTS/ACCUSED:
1 K.K. KRISHNAN (A10)
AGED 66 YEARS
S/O.BAPPU, KADATHALAKKANDY HOUSE,
KUNNUMMUKKARA POST, KOZHIKODE DISTRICT,
PIN 673308.
2 GEOTHI BABU (A12)
AGED 51 YEARS
S/O.KRISHNAN, KRISHNA NIVAS,
PARAMBATH HOUSE, CHERUPARAMBA POST,
KUNNOTH PARAMBA, KANNUR DISTRICT,
PIN 670693.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 15 ::
& 403/2014 & CRA(V).
No.571/2015
3 P.MOHANAN @ MOHANAN MASTER (A14)
AGED 58 YEARS
S/O.RAMAN, POOKKOTTE HOUSE, VATTOLI POST, KAKKATTIL,
KOZHIKODE DISTRICT, PIN - 673507.
4 SHIBU.P.C. (A16)
AGED 30 YEARS
S/O.GOVINDAN, MARAJINATAVIDE HOUSE,
PATTIAM, PACHAPPOYIL P.O., MUTHIYANGA,
NOW R/AT VANNATHAN VEETTIL, NARAVOOR, PIN-670634.
5 SREEJITH.K. (A17)
AGED 30 YEARS
S/O.JANU, MEETHALE PURAYIL HOUSE,
MUTHIYANGA POST, PATTIAM, PIN - 670691.
6 ASWANTH C.K. @ ACHU (A19)
AGED 20 YEARS
S/O.RAJAN, C.K.HOUSE (CHETTIYAMKANDY),
KOPPARAKKALAM QUARTERS, NALUTHARA POST,
PALLUR, MAHE. PIN 673333.
7 K.P.DILSAHD (A20)
AGED 27 YEARS
S/O.RAHIM, KOLLAMPARAMBATH HOUSE,
KOROTH ROAD, AZHIYOOR POST, VATAKARA,
KOZHIKODE DISTRICT, PIN 673309.
8 P.K.MUHAMMED FASALU @ FASALU (A21)
AGED 28 YEARS
S/O.MOIDU, PARAPAMBATH MEETHAL HOUSE,
KOROTH ROAD, AZHIYOOR P.O., VADAKARA,
KOZHIKODE DISTRICT, PIN 673309.
9 SANOOP.M. (A22)
AGED 25 YEARS
S/O.BALAKRISHNAN, PARAYULLATHIL HOUSE,
THOTTOLIKKARA, CHOMBALA POST, VATAKARA,
KOZHIKODE DISTRICT, PIN 673308.
10 C.K.RAJIKANATH @ KOORAPPAN (A25)
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 16 ::
& 403/2014 & CRA(V).
No.571/2015
AGED 30 YEARS
S/O.RAGHAVAN, CHIRUNNAMKANDIYIL, KODIYERI AMSOM,
PARAL POST, KANNUR, PIN 670671.
11 RAJITH.C. (A27)
AGED 23 YEARS
S/O.RAJAN, ANATHAM HOUSE, KODIYERI,
PARAL POST, KANNUR, PIN 670671.
12 P.M.RAMEESH @ KUTTU (A28)
AGED 21 YEARS
S/O.RAVI, REMYATHA NIVAS, AZHIYOOR POST,
KALLARAVATH, VATAKARA, PIN 673309.
13 K.P.DIPIN @ KUTTAN @ DIPI (A29)
AGED 26 YEARS
S/O.DILEEPAN, KUNNUMAL HOUSE, KOTTAMALAKUNNU,
AZHIYOOR POST, VATAKARA VILLAGE, PIN 673309.
14 RAVEENDRAN M.K. (A30)
AGED 47 YEARS
S/O.CHATHU, PADAYAMKANDY HOUSE, ERAMALA VILLAGE,
ORIKKATTERY POST, KOZHIKODE DISTRICT, PIN 673501.
15 SHANOJ @ KELAN (A33)
AGED 32 YEARS
S/O.KUNHIRAMAN, KIZHAKKEYIL HOUSE, MUTHIYAGA POST,
PATTIAM AMSOM, KANNUR DISTRICT, PIN 670691.
16 JIJESH KUMAR (A36)
AGED 28 YEARS
S/O.GANGADHARAN, OTTANGADI HOUSE, PANNIANNUR, KANAL
ROAD, THERAMBATH VAYAL, CHOKIL POST - PIN 670672.
17 SHAJU.N.M. (A37)
AGED 37 YEARS
S/O.GOVINDHAN, MAVULLOR MEETHAL HOUSE,
CHOKLY POST, PUNATHIL MUKKU, KANNUR DISTRICT,
PIN 670672.
18 M.ABHINESH @ ABHI (A39)
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 17 ::
& 403/2014 & CRA(V).
No.571/2015
AGED 28 YEARS
S/O.ASHOKAN, KATTIL PARAMBATH MAROLI HOUSE,
MOOZHIKKARA POST, KODIYERI, PIN 670103.
19 SANEESH.M. (A41)
AGED 27 YEARS
S/O.CHANDRAN, MURIKKOLI HOUSE, KUNDUCHIRA,
PONNIYAM WEST POST, KANNUR, PIN 670641.
20 C.BABU CHALIL (A42)
AGED 36 YEARS
S/O.BALAN, GRANTMA HOUSE, THOLAMBARA POST, MALLOR,
KOOTHUPARAMBA, KANNUR, PIN 670643.
21 SREEJITH.K. (A48)
AGED 25 YEARS
S/O.SREEDHARAN, MOOKKATH HOUSE,
MUZHAKKUNNU AMSOM, MUZHAKUNNU POST, MUDAKKOZHI,
KANNUR, PIN 670703.
22 SUDHEESH.M (A49)
AGED 23 YEARS
S/O.SUNDARAN, NADUKKANDY PARAMBATH HOUSE,
MUZHAKKUNNU AMSOM, MUZHAKUNNU POST, MUDAKKOZHI,
KANNUR, PIN 670703.
23 P.JIGESH (A50)
AGED 25 YEARS
S/O.KUMARAN, JIJI NIVAS HOUSE, MUZHAKKUNNU AMSOM,
MUZHAKUNNU POST, MUDAKKOZHI, KANNUR, PIN 670703.
24 K.DHANANJAYAN (A70)
AGED 53 YEARS
S/O.KRISHNAN NAIR, ARAYALPPURATH HOUSE, NARAVOOR,
KOOTHUPARAMBA, PIN 670643.
BY ADV.SRI.P.VIJAYA BHANU (SR.)(K/421/1984)
BY ADV.SRI.ARUN BOSE.D
BY ADV.SRI.GILBERT GEORGE CORREYA
BY ADV.SRI.K.VISWAN(K/416/1993)
BY ADV.SRI.K.M.RAMADAS(K/1023/1993)
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 18 ::
& 403/2014 & CRA(V).
No.571/2015
BY ADV.SRI.ABHIJITH M.A(K/001523/2021)
BY ADV.SMT.THANUSHREE DAMODARAN(K/1566/2022)
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
25.01.2024 ALONG WITH CRL.A.NO.174/2014 AND CONNECTED CASES,
THE COURT ON 19.02.2024 DELIVERED THE FOLLOWING JUDGMENT OF
CONVICTION: THE COURT ON 27.02.2024 PASSED THE FOLLOWING
JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 19 ::
& 403/2014 & CRA(V).
No.571/2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 27TH DAY OF FEBRUARY 2024/8TH PHALGUNA, 1945
CRA(V).NO.571 OF 2015
CRIME NO.433/2012 OF VATAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.1.2014 IN S.C.NO.867/2012 OF ADDITIONAL
DISTRICT COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE -
CRIME NO.CBCID/406/CR/HHW/111/KKD./2012, CBCID, KOZHIKODE
APPELLANT/VICTIM:
K.K.REMA,
AGED 43 YEARS, W/O. LATE CHANDRASEKHARAN,
TEE PEE, THAIVATHAPARAMBATHU, ONCHIYAM P.O.,
CHOMBALA, KOZHIKODE.
BY ADV.SRI.S.RAJEEV
BY ADV.SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENTS/ACCUSED/STATE:
1 THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
(CRIME NO.433/2012 OF VATAKARA POLICE STATION,
NOW RE-REGISTERED AS CRIME NO.406/CR/HHW-3/KKD/2012)
2 ANOOP (A1),
AGED 32 YEARS
S/O.GANGADHARAN, MANGALASSERY HOUSE, PUTHOOR AMSOM,
CHENDAYAD, PADANTHAZHA, KANNUR. 670017
3 MANOJ KUMAR @ KIRMANI MANOJ (A2),
AGED 32 YEARS
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 20 ::
& 403/2014 & CRA(V).
No.571/2015
S/O.GANGADHARAN, NADUVIL MALAYATTE HOUSE,
PANTHAKKAL P.O., MAHE-673310.
4 N.K. SUNIL KUMAR @ KODI SUNI (A3),
AGED 31 YEARS
S/O.SURENDRAN, MEETHALE CHALIL HOUSE, SHARON VILLA,
CHOKLI AMSOM, NIDUMBRAM, KANNUR DISTRICT. 670017
5 RAJEESH THUNDIKKANDI @ T.K. (A4),
AGED 35 YEARS
S/O.VELAYUDHAN, KARAYINTAVIDA HOUSE,
PATHAYAKUNNU P.O., PATTIAM, PUTHIYATHERUVU,
KANNUR DISTRICT. 670017
6 K.K.MUHAMMED SHAFI @ SHAFI (A5),
AGED 29 YEARS
S/O.MOIDU, PARAMBATH HOUSE, NEAR CHOKLI ORIENTAL
SCHOOL, KANNUR DISTRICT. 670017
7 SIJITH S.@ ANNAN SIJITH (A6),
AGED 25 YEARS
S/O.SURENDRAN, PALORATH HOUSE, CHAMBAD P.O.,
ARAYAKKOOL, KANNUR DISTRICT 670016.
8 K. SHINOJ (A7),
AGED 30 YEARS
S/O.ACHUTHAN, KANNATTINKAL HOUSE, ASHIRVAD NIVAS,
KOHINOOR, PALLUR, MAHE-673310.
9 K.C. RAMACHANDRAN (A8),
AGED 54 YEARS
S/O.KELAPPAN, JAYASURA HOUSE, KUNNUMMAKARA P.O.,
KOZHIKODE DISTRICT-673001.
10 K.K.KRISHNAN (A10),
AGED 68 YEARS
S/O.BAPPU, KADATHALAKKANDY HOUSE, KUNNUMMUKKARA POST,
KOZHIKODE-673016.
11 MANOJAN @ TROUSER MANOJAN (A11),
AGED 49 YEARS
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 21 ::
& 403/2014 & CRA(V).
No.571/2015
S/O.GOVINDAN, VADAKKEYIL HOUSE, CHERUPARAMBA POST,
KOLAVALLUR AMSOM, THUVVAKKUNNU, KANNUR-670131.
12 GEOTHI BABU (A12),
AGED 53 YEARS
S/O.KRISHNAN, "KRISHNA NIVAS",
PARAMBATH HOUSE, CHERUPARAMBA POST,
KUNNOTH PARAMBA, KANNUR DISTRICT. 670131
13 PADINJARE KUNHIKKATTIL KUNHANANDAN (A13),
AGED 64 YEARS
S/O.KANNAN NAIR, KELOTHANTAVIDA, KOLAVALLUR POST,
KUNNOTH PARAMBA PANCHAYATH, KANNANGODE. 670017
14 P. MOHANAN @ MOHANAN MASTER (A14),
AGED 60 YEARS
S/O.RAMAN, POOKKOTTE HOUSE, VATTOLI POST,
KAKKATTIL, KOZHIKODE DISTRICT-673316.
15 SHIBU P.C. (A16),
AGED 32 YEARS
S/O.GOVINDAN, MARAJINTAVIDE HOUSE, PATTIAM,
PACHAPPOYIL POST, MUTHIYANGA, NOW RESIDING AT
VANNATHAN VEETTIL, NARAVOOR 670017.
16 SREEJITH K. (A17),
AGED 32 YEARS
S/O.JANU, MEETHALE PURAYIL HOUSE, MUTHIYANGA POST,
PATTIAM-673031.
17 P.V. RAFEEK @ VAZHAPPAPADACHI RAFEEK (A18),
AGED 38 YEARS
S/O.HAMSA, VALIYA PUTHALATH HOUSE, PALLUR POST,
MAHE, PIN-673310.
18 AWANTH C.K. @ ACHU (A19),
AGED 22 YEARS
S/O.RAJAN, C.K. HOUSE (CHETTIYAMKANDY),
KOPPARAKKALAM QUARTERS, NALUTHARA POST,
PALLUR, MAHE. 673310
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 22 ::
& 403/2014 & CRA(V).
No.571/2015
19 K.P. DILSHAD (A20),
AGED 29 YEARS
S/O.RAHIM, KOLLAMPARAMBATH HOUSE, KOROTH ROAD,
AZHIYOOR POST, VATAKARA, KOZHIKODE DISTRICT-673001.
20 P.K. MOHAMMED FASALU @ FASALU (A21),
AGED 30 YEARS
S/O.MOIDU, PARAPARAMBATH MEETHAL HOUSE, KOROTH ROAD,
AZHIYOOR POST, VATAKARA, KOZHIKODE DISTRICT-673001.
21 SANOOP M.P. (A22),
AGED 27 YEARS
S/O.BALAKRISHNAN, PARAYULLATHIL HOUSE, THATTOLIKKARA,
CHOMBALA POST, VATAKARA, KOZHIKODE DISTRICT-673001.
22 C.K. RAJIKANTH @ KOORAPPAN (A25),
AGED 32 YEARS
S/O.RAGHAVAN, CHIRUNNAMKANDIYIL, KODIYERI AMSOM,
PARAL, KANNUR. 670017
23 RAJITH C.,
AGED 25 YEARS
S/O.RAJAN, ANANTHAM HOUSE, KODIYERI, PARAL POST,
KANNUR.670017
24 P.M. RAMEESH @ KUTTU (A28),
AGED 23 YEARS
S/O.RAVI, 'REMYATHA NIVAS', AZHIYOOR POST,
KALLARAVATH, VATAKARA. 673310
25 K.P. DIPIN @ KUTTAN @ DIPI (A29),
AGED 28 YEARS
S/O.DILEEPAN, KUNNUMMAL HOUSE, KOTTAMALAKUNNU,
AZHIYOOR POST, VATAKARA VILLAGE-673316.
26 RAVEENDRAN M.K. (A30),
AGED 49 YEARS
PADAYAMKANDY HOUSE, ERAMALA VILLAGE, ORKKATTERY,
KOZHIKODE DISTRICT-673001.
27 PRADEEPAN M.K. @ LAMBU,
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 23 ::
& 403/2014 & CRA(V).
No.571/2015
AGED 36 YEARS
S/O.GOPALAN, MARAM KUNNUMMAL HOUSE,
CHOKLY POST, KANNUR-673001.
28 SHANOJ @ KELAN (A33),
AGED 34 YEARS
S/O.KUNHIRAMAN, KIZHAKKEYIL HOUSE, MUTHIYANGA,
PATTIAM AMSOM, KANNUR DISTRICT 670017.
29 JIJESH KUMAR (A36),
AGED 30 YEARS
S/O.GANGADHARAN, OTTANGADI HOUSE, PANNIANNUR,
KANAL ROAD, THERAMBATH VAYAL, CHOKLI 670017.
30 SHAIJU N.M. (A37),
AGED 39 YEARS
MAVULLUR MEETHAL HOUSE, CHOKLY POST, PUNATHIL MUKKU,
KANNUR DISTRICT. 670017
31 M. ABHINESH @ ABHI (A39),
AGED 30 YEARS
S/O.ASHOKAN, KATTIL PARAMBATH MAROLI HOUSE,
MOOZHIKKARA POST, KODIYERI-673141.
32 SANEESH M. (A41),
AGED 29 YEARS
S/O.CHANDRAN, MURIKKOLI HOUSE, KUNDUCHIRA, PONNIYAM
WEST POST, KANNUR 670017.
33 C.BABU, CHALIL (A42),
AGED 38 YEARS
S/O.BALAN, GRANTMA HOUSE, THOLAMBRA POST, MALOOR,
KOOTHUPARAMBA, KANNUR-670117.
34 SREEJITH K. (A48),
AGED 27 YEARS
S/O.SREEDHARAN, MOOKKATH HOUSE, MUZHAKKUNNU AMSOM,
MUDAKKOZHI, KANNUR.
35 SUDHEESH M. (A49),
AGED 25 YEARS
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 24 ::
& 403/2014 & CRA(V).
No.571/2015
S/O.SUNDARAN, NADUKKANDY PARAMBATH HOUSE,
MUZHAKKUNNU AMSOM, MUDAKKOZHI, KANNUR-670117.
36 P. JIGESH (A50),
AGED 27 YEARS
S/O.KUMARAN, JIJI NIVAS HOUSE, MUZHAKKUNNU AMSOM,
MUDAKKOZHI, KANNUR 670016.
37 K. DHANANJAYAN (A70),
AGED 55 YEARS
S/O.KRISHNAN NAIR, ARAYALPPURATH HOUSE, NARAVOOR,
KOOTHUPARAMBA 670016.
BY SRI.P.KUMARANKUTTY, SPECIAL PUBLIC PROSECUTOR
BY SRI.SAPHAL.K., ASSISTANT SPL. PUBLIC PROSECUTOR
BY ADV.SRI.P.VIJAYA BHANU (SR.)(K/421/1984)
BY ADV.SRI.ARUN BOSE.D
BY ADV.SRI.GILBERT GEORGE CORREYA(K/000238/2001)
BY ADV.SRI.K.VISWAN(K/416/1993)
BY ADV.SRI.ABHIJITH M.A(K/001523/2021)
BY ADV.SMT.THANUSHREE DAMODARAN(K/1566/2022)
THIS CRL.A BY DE FACTO COMPLAINANT/VICTIM HAVING COME
UP FOR HEARING ON 25.01.2024 ALONG WITH CRL.A.NO.174/2014
AND CONNECTED CASES, THE COURT ON 19.02.2024 DELIVERED THE
FOLLOWING JUDGMENT OF CONVICTION: THE COURT ON 27.02.2024
PASSED THE FOLLOWING JUDGMENT ON SENTENCE:
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 25 ::
& 403/2014 & CRA(V).
No.571/2015
"C.R."
INDEX
Sl.No. Description Page No.
1 Background 27 - 28
2 Prosecution Case 28 - 29
3 Investigation 29 - 30
4 Trial Court Proceedings 30 - 39
5 Appeal Details 39 - 41
6 Discussions & Findings 41 - 143
(i) Preliminary objection regarding the 41 - 43
maintainability of the State Appeals
(ii) Discussion on merits 43 - 47
(iii) The Conspiracy 47 - 100
Analysis of the evidence 55 - 65
The meeting on 02.04.2012 65 - 68
Events between 02.04.2012 and 10.04.2012 68
The meeting on 10.04.2012 68 - 73
Events between 10.04.2012 and 20.04.2012 73 - 75
The meeting on 20.04.2012 75 - 77
Events between 20.04.2012 and 24.04.2012 77
The meetings on 24.04.2012 78 - 79
Events on 25.04.2012 79 - 83
Events on 26.04.2012 83 - 84
Events on 27.04.2012 84
Events between 28.04.2012 and 01.05.2012 84
Events on 02.05.2012 85 - 87
Events on 04.05.2012 87 - 91
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 26 ::
& 403/2014 & CRA(V).
No.571/2015
Our Finding on Conspiracy 91 - 100
(iv) The Incident 100 - 136
The First Information Report 102 - 107
Direct Evidence against A1 to A7 107 - 119
Circumstantial Evidence against A1 to A7 119 - 122
Witness testimony that implicates A1 to A7 122 - 126
Forensic/DNA Evidence against A6 126 - 129
Recovery of the Innova vehicle 130 - 132
Recovery of the Swords 132 - 133
Medical evidence connecting the swords with the 133 - 135
injury on the victim
Forensic Evidence against A2 and A3 as regards 135 - 136
use of Explosives
Our findings on the Incident 136
(v) Abetment and Harbouring 136 - 143
Crl.A.No.174/2014 filed by A18 Rafeek 137 - 139
Crl.A.No.179/2014 filed by A31 Pradeepan 140 - 142
Crl.A.Nos.403/2014 filed by the State & 142 - 143
Crl.A.(V).No.571/2015 filed by the Victim
7 Conclusion 143 - 145
8 Sentencing 146 - 161
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 27 ::
& 403/2014 & CRA(V).
No.571/2015
JUDGMENT
Dr. A.K. Jayasankaran Nambiar, J.
Democracy thrives on the peaceful exchange of ideas, not the violent imposition
of beliefs. Political violence is the poison that corrodes the roots of democratic
principles.
- Amartya Sen
On the morning of 05.05.2012, the people of Kerala woke up to the
grim news of a gruesome political murder. T.P. Chandrasekharan, the leader
of the Revolutionary Marxist Party (hereinafter referred to as 'RMP' for
brevity), had been hacked to death the night before by a group of assassins.
The wounds inflicted on him were so brutal and numerous that PW136
Dr.Sujith Sreenivas, the Assistant Professor and Assistant Police Surgeon at
the Forensic Medicine department of the Kozhikode Medical College, who
conducted the post-mortem examination, opined that it was indicative of the
aggressive and hostile nature of the assailants. The question that loomed
large, however, was, "Who would commit such a barbaric act and why?"
2. The prosecution would have us believe that the public opinion at
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 28 ::
& 403/2014 & CRA(V).
the time was that it was the political rivalry between leaders of the
Communist Party of India (Marxist) (CPI (M)) and the victim that led to the
commission of the crime. T.P. Chandrasekharan, who was once an active
member and local leader of the CPI (M), fell out with the party and formed a
new party called the Revolutionary Marxist Party (RMP). The RMP posed a
big challenge to the election fortunes of the CPI (M), and this was evident
when, in the 2009 Lok Sabha Elections, the CPI (M) lost the Vadakara
Constituency, which had been its stronghold till then. Although it was the
Congress candidate who was returned from the Constituency that year, T.P.
Chandrasekharan's candidacy under the RMP banner was perceived as
instrumental in the CPI (M)'s loss. The rivalry between the parties and the
inter se attacks between members of the two parties only served to fuel the
animosity of the CPI(M) leaders towards the victim.
The prosecution case:
3. The case of the prosecution, in brief, is that, pursuant to a criminal
conspiracy hatched by accused No's.8 to 14, with the assistance of accused
No's.1,3,5,7,15 to 18, 20 to 25 and 27 to 30, at about 22.10 hours on
04.05.2012, accused No's.1 to 7 came in an Innova Car bearing a false
registration number, driven by the accused no.1, and rammed the car into
the motorbike driven by T.P. Chandrasekharan. After causing the latter to be
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 29 ::
& 403/2014 & CRA(V).
thrown onto the road, they hacked him to death on the public road at a place
called Vallikkad by striking him with swords. Accused No.3 also used a
country bomb to cause an explosion that would prevent witnesses from
approaching the scene of the crime. Accused No's.1 to 7 then fled the scene
of the crime and were assisted by the other accused, who either harboured
them or destroyed valuable evidence that pointed to them.
The investigation:
4. PW4, the Sub-Inspector of Vatakara Police Station, suo motu,
registered Ext.P2 FIR on the night of 04.05.2012 itself. The local police
headed by the Dy.SP, Vatakara, initially conducted the investigation of the
crime that was numbered as Crime No.433/2012 of the Vatakara Police
Station. PW154, the Circle Inspector, completed the inquest proceedings on
the morning of 05.05.2012. PW136, Dr. Sujith Sreenivas, conducted autopsy
shortly thereafter. PW163 Circle Inspector inspected the scene of the
incident and prepared Ext.P20 scene mahazar. In the meanwhile, PW165
Dy.SP Vatakara received information that an Innova Car bearing
Registration No.KL-58D-8144 was found abandoned at Punathilmukku in
Chokli, and he promptly reached there along with PW1 Praseed and CW2
Ramachandran, who claimed to be eyewitnesses to the incident. They
identified the vehicle as the one used by the assailants, and after the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 30 ::
& 403/2014 & CRA(V).
forensic experts examined the vehicle, PW165 seized the vehicle and the
articles in it.
4.1. The investigation of the case was then transferred to the Crime
Branch, where the case was re-registered as CBCID Crime No.406/CR/HHW-
III/KKD/2012, and a Special Investigation Team was constituted. The first
arrest was on 15.05.2012 of A31 Pradeepan M. K @ Lambu, and based on
the information furnished by the said accused PW164 Dy.SP recovered five
swords (MO1 Series) from a well. Later, the accused who had allegedly
committed the murder, the conspirators and the persons who aided, abetted,
and harboured the main accused were all arrested. The investigation was
thereafter completed, and PW166 Dy.SP Crime Branch CID, HHW-III,
Kozhikode laid the final report before the Judicial First Class Magistrate
Court, Vatakara, against 76 accused, under Sections 143, 147, 148, 302
read with 149 IPC and Sections 465, 471, 118, 201, 212, 120B, 109 IPC and
also under Sections 3 and 5 of the Explosive Substances Act, 1908.
The Trial Court Proceedings:
5. The case was taken on file by the JFMC, Vatakara as C.P.111/12.
Out of the 76 accused in the case, accused 24 and 52 were absconding.
After completing the necessary formalities, the Magistrate committed the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 31 ::
& 403/2014 & CRA(V).
case against the remaining 74 accused to the Sessions Court, Kozhikode,
where the case was numbered as S.C.867/12. The case was then made over
to the Special Additional Sessions Court (Marad Cases), Kozhikode for trial.
5.1. After hearing the prosecution and the defence, the trial court
vide its order dated 19.12.2012 discharged accused nos.54 and 61 under
Section 227 Crl.P.C after finding that there was no sufficient ground for
proceeding against them. Charges were thereafter framed against the
remaining 72 accused under Sections 143, 147, 148, 302 read with 149 IPC
and Sections 465, 471, 118, 201, 212, 120B, 109 IPC and also under
Sections 3 and 5 of the Explosive Substances Act, 1908. All the accused
pleaded not guilty to the charges.
5.2. As the High Court had in certain Criminal Revision Petitions
stayed all further proceedings in the trial against accused nos.53, 58, 60, 62
to 69 and 71 to 74, and further, there was a direction from the High Court to
dispose the Sessions case before 31.07.2013, the trial court proceeded with
the trial against the remaining 57 accused.
5.3. The prosecution examined 166 witnesses as PW1 to PW166 and
marked Exts.P1 to P579, Exts.C1 to C18 and D1 to D31 on its side. MO1 to
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 32 ::
& 403/2014 & CRA(V).
MO105 were identified. Accused no.9 C.H. Ashokan died during the period
of the trial. After closure of the prosecution evidence, 56 accused were
examined under Section 313 Cr.P.C. They denied all the incriminating
circumstances that appeared in the evidence and that they were put to
them. Some of them also filed statements in writing explaining the
incriminating circumstances against them. The trial court then acquitted
twenty accused persons viz. A15, A23, A26, A32, A34, A35, A38, A40, A43,
A44, A45, A46, A47, A51, A55, A56, A57, A59, A75 and A76 under Section
232 Cr.P.C. The remaining 36 accused who had faced trial were then called
upon to adduce evidence in their defence.
5.4. The defence examined ten witnesses as DW1 to DW10 and
marked Exts.D32 to D66 and Exts.P580 to P582 on its side. After hearing
the prosecution and the defence at length, the trial court found as follows:
1. A10 K.K Krishnan, A12 Geothi Babu and A14 P. Mohanan were
found not guilty of the offences punishable under Section 120B
IPC and under Section 302 read with Section 109 IPC and were
accordingly acquitted under Section 235 Cr.P.C.
2. A16 Shibu P.C., A17 Sreejith K., A22 Sanoop M.P., A28 P.M.
Rameesh and A30 Raveendran M.K. were found not guilty of the
offences punishable under Section 302 read with 115 IPC and
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 33 ::
& 403/2014 & CRA(V).
under Section 118 IPC and were accordingly acquitted under
Section 235 Cr.P.C.
3. A19 Aswanth C.K. was found not guilty of the offences punishable
under Section 465 and 118 IPC and under Section 302 read with
109 IPC and was accordingly acquitted under Section 235 Cr.P.C.
4. A20 K.P. Dilshad, A21 P.K. Muhammed Fasalu and A29 K.P. Dipin
were found not guilty of the offences punishable under Section
302 read with 109 IPC and 118 IPC and were accordingly
acquitted under Section 235 Cr.P.C.
5. A25 C.K. Rajikanth was found not guilty of the offence punishable
under Section 302 read with 109 IPC and was accordingly
acquitted under Section 235 Cr.P.C.
6. A27 Rajith C. was found not guilty of the offences punishable
under Section 302 read with 109 and 115 IPC and was accordingly
acquitted under Section 235 Cr.P.C.
7. A37 Shaju N.M. was found not guilty of the offences punishable
under Sections 201 and 212 IPC and was accordingly acquitted
under Section 235 Cr.P.C.
8. A36 Jijesh Kumar was found not guilty of the offence punishable
under Section 201 IPC and was accordingly acquitted under
Section 235 Cr.P.C.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 34 ::
& 403/2014 & CRA(V).
9. A33 Shanoj @ Kelan, A39 M. Abhinesh, A41 Saneesh M., A42 C.
Babu, A48 Sreejith K., A49 Sudheesh M., A50 P. Jigesh, and A70 K.
Dhananjayan were found not guilty of the offence punishable
under Section 212 IPC and were accordingly acquitted under
Section 235 Cr.P.C.
10. A1 Anoop was found guilty of the offences punishable under
Sections 143, 147 and 302 read with 149 IPC and he was
convicted there under. He was found not guilty of the offences
punishable under Sections 120B, 148, 465 and 471 IPC and he
was accordingly acquitted under Section 235 Cr.PC in respect of
those offences.
11. A2 Manoj @ Kirmani Manoj was found guilty of the offences
punishable under Sections 143, 147, 148 and 302 read with 149
IPC and under Section 5 of the Explosive Substances Act, 1908
and was accordingly convicted there under. He was found not
guilty of the offence punishable under Section 120B IPC and was
accordingly acquitted under Section 235 Cr.PC in respect of that
offence.
12. A3 Sunil Kumar @ Kodi Suni was found guilty of the offences
punishable under Sections 143, 147, 148 and 302 IPC and under
Section 3 of the Explosive Substances Act, 1908 and was
accordingly convicted there under. He was found not guilty of the
offences punishable under Section 120B and 201 IPC and was
accordingly acquitted under Section 235 Cr.PC in respect of those
offences.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 35 ::
& 403/2014 & CRA(V).
13. A4 T.K. Rajeesh, A5 Muhammed Shafi, A6 Sijith and A7 Shinoj
were found guilty of the offences punishable under Sections 143,
147, 148 and 302 IPC and were accordingly convicted there under.
They were found not guilty of the offence punishable under
Section 120B IPC and were accordingly acquitted under Section
235 Cr.PC in respect of that offence.
14. A8 K.C. Ramachandran, A11 Manojan and A13 Kunhanandan were
found guilty of the offence punishable under Section 120B read
with 302 IPC and they were accordingly convicted there under.
They were found not guilty of the offence punishable under
Section 302 read with 109 IPC and were accordingly acquitted
under Section 235 Cr.PC in respect of that offence. A8 K.C.
Ramachandran was found not guilty of the offence punishable
under Section 201 IPC and he was acquitted under Section 235 in
respect of that offence.
15. A18 Rafeek was found guilty of the offence punishable under
Section 302 read with 109 IPC and he was convicted there under.
He was found not guilty of the offences punishable under Sections
465, 471 and 118 IPC and he was accordingly acquitted under
Section 235 Cr.PC in respect of those offences.
16. A31 Pradeepan was found guilty of the offence punishable under
Section 201 IPC and he was convicted there under. He was found
not guilty of the offence punishable under Section 212 IPC and he
was accordingly acquitted under Section 235 Cr.PC in respect of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 36 ::
& 403/2014 & CRA(V).
that offence.
5.5. The trial court then heard the accused on sentence under Section
235(2) of the Cr.P.C. The Special Prosecutors and the defence counsel were
also heard in detail. The sentence awarded to each of the accused found
guilty of the offences charged against them is as follows:
1. A1 Anoop - Sentenced to imprisonment for life and to pay fine of
Rs.50,000/- and in default of payment of fine to undergo rigorous
imprisonment for a period of one year for the offence punishable
under Section 302 read with 149 IPC. He was also sentenced to
undergo rigorous imprisonment for a period of six months for
the offence punishable under Section 143 IPC and rigorous
imprisonment for a period of one year for the offence punishable
under Section 147 IPC.
2. A2 Manoj Kumar - Sentenced to imprisonment for life and to pay
fine of Rs.50,000/- and in default of payment of fine to undergo
rigorous imprisonment for a period of one year for the offence
punishable under Section 302 read with 149 IPC. He was also
sentenced to undergo rigorous imprisonment for a period of six
months for the offence punishable under Section 143 IPC and
rigorous imprisonment for a period of one year for the offence
punishable under Section 147 IPC and rigorous imprisonment for a
period of two years for the offence punishable under Section 148
IPC. He was also sentenced to undergo rigorous imprisonment for
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 37 ::
& 403/2014 & CRA(V).
a period of five years and to pay a fine of Rs.10,000/- and in
default of payment of fine to undergo rigorous imprisonment for a
period of six months for the offence punishable under Section 5 of
the Explosive Substances Act, 1908.
3. A3 Sunil Kumar - Sentenced to imprisonment for life and to pay
fine of Rs.50,000/- and in default of payment of fine to undergo
rigorous imprisonment for a period of one year for the offence
punishable under Section 302 read with 149 IPC. He was also
sentenced to undergo rigorous imprisonment for a period of six
months for the offence punishable under Section 143 IPC and
rigorous imprisonment for a period of one year for the offence
punishable under Section 147 IPC and rigorous imprisonment for a
period of two years for the offence punishable under Section 148
IPC. He was also sentenced to undergo rigorous imprisonment for
a period of ten 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 one year for the offence punishable under Section 3 of the
Explosive Substances Act, 1908.
4. A4 T.K. Rajeesh, A5 Muhammed Shafi, A6 Sijith and A7 Shinoj -
Sentenced to imprisonment for life and to pay fine of Rs.50,000/-
each and in default of payment of fine to undergo rigorous
imprisonment for a period of one year for the offence punishable
under Section 302 read with 149 IPC. They were also each
sentenced to undergo rigorous imprisonment for a period of six
months for the offence punishable under Section 143 IPC and
rigorous imprisonment for a period of one year for the offence
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 38 ::
& 403/2014 & CRA(V).
punishable under Section 147 IPC and rigorous imprisonment for a
period of two years for the offence punishable under Section 148
IPC.
5. A8 K.C. Ramachandran, A11 Manojan and A13 Kunhanandan -
Sentenced to imprisonment for life and to pay fine of Rs.100,000/-
each and in default of payment of fine to undergo rigorous
imprisonment for a period of two years each for the offence
punishable under Section 120B read with Section 302 IPC.
6. A18 Rafeek - Sentenced to imprisonment for life and to pay a fine
of Rs.100,000/- and in default of payment of fine to undergo
rigorous imprisonment for a period of two years for the offence
punishable under Section 302 read with 109 IPC.
7. A31 Pradeepan - 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 under Section 201
IPC. The period of detention undergone by him from 16.05.2012 to
23.08.2012 was permitted to be set off against the substantive
sentence of imprisonment awarded to him.
8. The sentence of life imprisonment awarded to the accused was for
the whole of their remaining life subject to the remission granted
by the appropriate government under Section 432 Cr.P.C which
was in turn subject to the provisions of Section 433A Cr.P.C. From
out of the fine amount realised an amount of Rs.300,000/- was
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 39 ::
& 403/2014 & CRA(V).
directed to be paid to PW5 Rema, the wife of the deceased and
Rs.200,000/- to CW13 Abhinand the son of the deceased as
compensation under Section 357 Cr.P.C. The charge against A9
C.H. Asokan, who was no more, was declared abated.
The appeals before us:
6. Appeals have been preferred by the persons convicted, the State,
and the deceased's wife. The details of the said appeals are as follows:
Appeal No. Party Name Relief Sought
Crl.A.172/2014 A8 K.C. Ramachandran v. State To set aside conviction and
sentence
Crl.A.174/2014 A18 P.V. Rafeek @ To set aside conviction and
Vazhapappadachi Rafeek v. State sentence
Crl.A.176/2014 A13 Padinjare Kunhikkattil To set aside conviction and
Kunhanandan v. State sentence
Crl.A.177/2014 A1 Anoop v. State To set aside conviction and
A2 Manoj Kumar v. State sentence
A3 Kodi Suni v. State
Crl.A.178/2014 A4 Rajeesh Thundikkandi @ T.K. To set aside conviction and
v. State sentence
A5 K.K Mohammed Shafi v. State
A6 Sijith @ Annan Sijith v. State
A7 Shinoj v. State
Crl.A.179/2014 A31 Pradeepan M.K. @ Lambu v. To set aside conviction and
State sentence
Crl.A.180/2014 A11 Manojan @ Trouser To set aside conviction and
Manojan v. State sentence
Crl.A.339/2014 State v. A1 Anoop & Ors. Seeking death sentence to:
• A1 to A7 u/s 302 r/w
149 IPC
• A8, A11 & A13 u/s
302 r/w 120B IPC
• A18 u/s 302 r/w 109
IPC
and
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 40 ::
& 403/2014 & CRA(V).
Maximum Punishment to:
• A2 and A3 u/s 5 & 3
of the Explosive
Substances Act
• A31 u/s 201 IPC
Crl.A.403/2014 State v. A10 KK Krishnan & 23 Seeking Conviction of the
Others 24 acquitted accused
Crl.A. K.K.Rema v. State • Seeking conviction of
(V).571/2015 acquitted accused; and
• Enhanced punishment
for A31 u/s 120B r/w
302 IPC; and
Enhanced compensation
6.1. The appellants/convicted accused were represented by Senior
Counsel Sri.B.Raman Pillai and Sri.P.Vijayabhanu, duly assisted by
Adv.Sri.Gilbert George Correya, Adv.Sri.K.Viswan, Adv.Sri.K.M.Ramadas,
Adv.Sri.D.Arun Bose and the respondent State was represented by the
Special Public Prosecutor Sri.P.Kumarankutty and Assistant Special Public
Prosecutor Sri.Saphal.K., Adv.Sri.S.Rajeev appeared on behalf of
Smt.K.K.Rema, the widow of T.P. Chandrasekharan, and supported the
arguments of the learned Special Prosecutor. As the learned counsel on
either side took us through the entire evidence on record and re-iterated the
arguments made before the trial court before emphasising on new
perspectives at the time of hearing of these appeals, we feel it would be in
the interests of easy comprehension that we deal with their arguments in
the course of our discussion of the different issues and the evidence relating
thereto. As regards consideration of the precedents cited before us by the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 41 ::
& 403/2014 & CRA(V).
learned counsel, we might clarify that we have gone through all of them to
cull out and state the broad legal position that obtains on the various issues
that arise for consideration in these appeals. However, we have chosen to
avoid a specific reference in the footnotes to those precedents that merely
restate a legal point already dealt with.
Discussions and Findings
Preliminary objection regarding the maintainability of the State Appeals:
7. Before embarking upon a discussion of the merits of these appeals,
we may quickly deal with a preliminary objection raised by the
appellants/convicted accused as regards the maintainability of the State
appeals preferred against the orders of acquittal passed by the trial court. It
is contended, based on the order dated 08.02.2021 of a Division Bench of
this Court in Saji @ Dada Saji1 that an appeal against an order of acquittal
cannot be preferred before the High Court by the Public Prosecutor unless it
is first shown that there was a direction from the State Government to file
such an appeal. The said decision was one that interpreted the provisions of
Section 378 (1) of the Cr.P.C and literally so. However, a closer reading of
the Division Bench order reveals that it was one that was passed in
circumstances that were entirely different from what obtains in the instant
1 State of Kerala v. Saji @ Dada Saji & Ors - [2021 (2) KLJ 204]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 42 ::
& 403/2014 & CRA(V).
appeals. Firstly, the objection as regards maintainability was raised at a time
when the appeals came up for admission before the court. Secondly, the
court found that while the Public Prosecutor who conducted the trial, as well
as the Investigating Officer in that case, had given opinions in favour of
filing an appeal from the order of acquittal, there was no specific order from
the State Government directing the filing of the appeal. Reliance was also
placed on the Rules of Business of the Government of Kerala to find that so
long as there was no order or instrument executed by or on behalf of the
Government in the name of the Governor, and signed by an
authorised/empowered Officer, the existence of the necessary direction from
the State Government could not be inferred.
8. As against the facts in the said case, we find from the records
before us that the State appeals against the acquittal of various accused
were admitted and numbered as early as 2014, and the present objection as
regards their maintainability is raised only at the time of hearing.
Considering a belated objection regarding maintainability becomes
problematic when the documents necessary to determine the merits of the
objection cannot be obtained by the court owing to the passage of time. Not
surprisingly, the Special Prosecutor now appearing before us was not able to
produce any Government Order pertaining to the period when the appeals
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 43 ::
& 403/2014 & CRA(V).
were filed as he does not have access to the files that were maintained by
the earlier Prosecutor who had filed the appeals. However, we find from the
records that there is a specific Government Order authorising the present
Special Prosecutor to pursue all appeals arising from the judgment of the
trial court before this Court. This latter Government Order was passed in
2021 when the Special Prosecutor, who was originally appointed to
prosecute the matter before the trial court, had resigned during the
pendency of these appeals. In our view, the latter Government Order can be
seen as ratifying any earlier decision taken by the State Government to
prefer appeals against the orders of acquittal of the trial court and can
operate as the direction of the State Government for the purposes of Section
378 (1) of the Cr.P.C.
Discussion on Merits:
9. Moving now to the merits of these appeals, we find from a reading
of the charges framed against the various accused that the case of the
prosecution, broadly stated, is that there was a conspiracy hatched by
certain members of the CPI (M) to murder T.P. Chandrasekharan and that in
furtherance of the said conspiracy, certain assassins were hired to carry out
the crime and others instructed to destroy the evidence and shield the
perpetrators of the crime from the law enforcement agencies. In a matter of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 44 ::
& 403/2014 & CRA(V).
this magnitude, where on account of the sheer volume of oral and
documentary evidence that had to be traversed, the submissions of the
learned counsel on either side spanned a period of almost sixty days, we feel
it would be apposite to discuss the evidence in chronological sequence. Such
a discussion has the benefit of arranging and aligning our thought process to
the same sequence, as the prosecution alleges the events to have unfolded,
and also helps us understand the manner in which the investigating agency
pursued the investigation. The latter aspect gains importance when we find
that it is the case of the appellants/convicted accused before us that the
investigation of the case was in itself faulty and unfair to the accused and
that, therefore, the inadequacies thereof should operate in favour of the
accused.
9.1. As the case before us involves both direct and circumstantial
evidence, we might notice the principles that have to guide us in the analysis
of such evidence. As is well settled, it is a cardinal principle in our criminal
justice system that a person arraigned as an accused is presumed to be
innocent unless that presumption is rebutted by the prosecution by the
production of evidence as may show him to be guilty of the offence with
which he is charged. The burden of proving the guilt of the accused is on the
prosecution, and unless it relieves itself of that burden, the courts cannot
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 45 ::
& 403/2014 & CRA(V).
record a finding of guilt against an accused. Even in cases where the Statute
raises a presumption regarding the guilt of an accused, the burden is on the
prosecution to prove the existence of facts which must be present before the
presumption can be drawn. It is only thereafter that the accused would be
called upon to rebut the presumption. Another principle in our criminal
justice system is that if two views are possible on the evidence adduced in
the case, one pointing to the guilt of the accused and the other to his
innocence, the view favourable to the accused should be adopted. This
principle has special relevance in cases wherein the guilt of the accused is
sought to be established by circumstantial evidence. Accordingly, unless the
evidence adduced in the case is consistent only with the hypothesis of the
guilt of the accused and is inconsistent with that of his innocence, the court
should refrain from recording a finding of guilt of the accused. As a
corollary, if the court entertains a reasonable doubt regarding the guilt of
the accused, the benefit of that doubt must go to the accused. At the same
time, the court should not reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature of conjectures.2 As was observed
by the Supreme Court in Shivaji Sahebrao Bobade3, "Certainly it is a primary
principle that the accused "must be" and not merely "may be" guilty before
a court can convict, and the mental distance between "may be" and "must
2 Kali Ram v. State of Himachal Pradesh - [(1973) 2 SCC 808]
3 Shivaji Sahebrao Bobade v. State of Maharashtra - [(1973) 2 SCC 793]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 46 ::
& 403/2014 & CRA(V).
be" is long and divides vague conjectures from sure conclusions". Mere
suspicion, however strong or probable it may be, is no effective substitute
for the legal proof required to substantiate the charge of commission of a
crime and the graver the charge is, the greater the standard of proof
required.4
9.2. That said, we must also bear in mind that proof beyond
reasonable doubt is a guideline and not a fetish, and a guilty man cannot get
away with it because truth suffers some infirmity when projected through
human processes. The credibility of testimony, oral or circumstantial,
depends considerably on a judicial evaluation of the totality, not isolated
scrutiny. While it is necessary that proof beyond reasonable doubt should be
adduced in all criminal cases, it is not necessary that it should be perfect. 5
9.3. Keeping the above aspects in mind, we choose to arrange the
following discussion under three heads, namely (i) The conspiracy, (ii) The
incident and (iii) The abetment and harbouring of the various accused.
Under each head, we proceed to deal with the gist of the prosecution case,
followed by the findings of the trial court, the arguments in appeal and our
specific findings. While entering our findings under each head, we have
4 Ashish Batham v. State of MP - [(2002) 7 SCC 317]
5 Inder Singh & Another v. State (Delhi Administration) - [(1978) 4 SCC 161]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 47 ::
& 403/2014 & CRA(V).
chosen not to elaborate too much on those issues on which we concur with
the reasoning and finding of the trial court. Even on issues where we felt,
based on our appreciation of the evidence, that an alternate view was
possible, we have taken into consideration the fact that the trial court had
the benefit of observing the demeanour of the witnesses before it and,
therefore, deferring to the views of the trial court, we have chosen not to
interfere with the finding of the trial court. It is only in those situations
where we felt that the trial court's finding was not legally sustainable based
on the evidence on record that we have chosen to differ therefrom.
The Conspiracy
10. The trial court has convicted only three persons - A8 K.C.
Ramachandran, A11 Manojan and A13 Kunhanandan for the offence
punishable under Section 120B read with 302 IPC. The said finding was
entered into after analysing the evidence on record that pointed to their
presence at A13's house on a particular day. Although the prosecution had
alleged the involvement of other accused in the conspiracy and adduced
evidence to suggest that they had met at various locations to carry forward
the plan of murder, the trial court found that only the meeting involving the
above three accused stood proved and hence only three of them could be
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 48 ::
& 403/2014 & CRA(V).
convicted for the offence punishable under Section 120B read with Section
302 IPC. For the reasons that are to follow, we find ourselves at variance
with the trial court as regards the manner in which the evidence is to be
appreciated while entering a finding of conspiracy, and, consequently, we do
not accept the findings of the trial court on this issue.
10.1. The gist of the offence of conspiracy lies not in doing the act or
effecting the purpose for which the conspiracy is formed, attempting to do
them, or inciting others to do them, but in forming the scheme or agreement
between the parties. The existence of an agreement is essential to a finding
of conspiracy. In fact the word "conspiracy" derives from the Latin words
"con" and "spirare" meaning "to breathe together". Thus, for an
arrangement to constitute an agreement, the parties to it must share the
same design or purpose so it can be said that they truly breathe together 6.
Mere knowledge, or even discussion, of the plan is not per se enough7.
10.2. Generally, a conspiracy is hatched in secrecy, and it may be
difficult to adduce direct evidence of the same. As was observed by the
Supreme Court on several occasions, in the case of offences that are
committed in secrecy, it will be extremely difficult for the prosecution to lead
6 Paul Jarvis & Michael Bisgrove, "The Use and Abuse of Conspiracy", (2014) Crim.L.R., Issue 4, 259
7 Russel on Crime (12th Edn, Vol.1, p.202)
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 49 ::
& 403/2014 & CRA(V).
evidence to establish the guilt of the accused if the strict principle of
circumstantial evidence is insisted upon by the courts. A Judge does not
preside over a criminal trial merely to see that no innocent man is punished.
He also presides to see that a guilty man does not escape the clutches of the
law. The law does not, therefore, enjoin a duty on the prosecution to lead
evidence of such character, which is almost impossible to be led, or at any
rate, extremely difficult to be led. The duty on the prosecution is to lead
such evidence which it is capable of leading, having regard to the facts and
circumstances of the case.8
10.3. The prosecution will often rely on evidence of acts of various
parties to infer that they were done in reference to their common intention.
The prosecution will also more often rely upon circumstantial evidence. The
conspiracy can be undoubtedly proved by such evidence direct or
circumstantial, but the court must enquire whether the two persons are
independently pursuing the same end or they have come together in the
pursuit of the unlawful object. The former does not render them
conspirators, but the latter does. It is, however, essential that the offence of
conspiracy requires some kind of physical manifestation of agreement. The
express agreement, however, need not be proved. Nor is the actual meeting
8 Wazir Khan v. State of Uttarakhand - [(2023) 8 SCC 597]; Trimukh Maroti Kirkan v. State of Maharashtra - [(2006) 10 SCC 681]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 50 ::
& 403/2014 & CRA(V).
of two persons necessary. Nor is it necessary to prove the actual words of
communication. The evidence as to transmission of thoughts sharing the
unlawful design may be sufficient. 9 In other words, it will suffice if there is a
tacit understanding between conspirators as to what should be done so long
as the relative acts or conduct of the parties are conscientious and clear to
mark their concurrence as to what should be done.
10.4. It cannot also be forgotten that a criminal conspiracy is a
partnership in agreement, and there is in each conspiracy a joint or mutual
agency for the execution of a common object, which is an offence or an
actionable wrong. When two or more persons enter a conspiracy, any act
done by any one of them pursuant to the agreement is, in the contemplation
of the law, the act of each of them, and they are jointly responsible therefor.
This means that everything said, written or done by any of the conspirators
in the execution of or reference to their common intention is deemed to have
been said, done or written by each of them. This is so whether the
conspirators are enrolled in a chain where 'A' enrols 'B', 'B' enrols 'C' and so
on, or if the enrolment is of a wheel-and-hub nature where a single person at
the centre does the enrolling and all other members are unknown to each
other, though they know that there are other members. Persons may be
members of a single conspiracy even though each is ignorant of the identity
9 Mohd. Naushad v. State (NCT of Delhi) - [(2023) SCC Online SC 784]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 51 ::
& 403/2014 & CRA(V).
of many others who may have diverse roles to play. It is not part of the crime
of conspiracy that all the conspirators need to agree to play the same or an
active role.10 This doctrine of agency, that is often referred to as "the
prosecutors darling"11 because it recognises an exception to the hearsay rule
and allows the prosecution to adduce as evidence against every
conspirator's acts or declarations made by one or more of their number in
furtherance of their common design, finds statutory recognition in India
under Section 10 of the Indian Evidence Act that reads:
" Where there is reasonable ground to believe that two or more persons
have conspired together to commit an offence or an actionable wrong,
anything said, done or written by any one of such persons in reference to
their common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against each of the
persons believed to be so conspiring as well for the purposes of proving
the existence of the conspiracy as for the purpose of proving the existence
of the conspiracy as for the purpose of showing that any such person was
a party to it."
10.5. As per the above statutory provision (i) there has to be prima
facie evidence affording a reasonable ground for the court to believe that
two or more persons are members of a conspiracy (ii) if the said condition is
fulfilled, anything said, done or written by any one of them in reference to
their common intention will be evidence against the other (iii) anything said,
done or written by him should have been said, done or written by him after
10 State through Superintendent of Police CBI/SIT v. Nalini - [(1999) 5 SCC 253]
11 The expression was first coined by S.A.Klein in "Conspiracy - The Prosecutor's Darling", (1957) 24 Brooklyn L.Rev.1
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 52 ::
& 403/2014 & CRA(V).
the intention was formed by any one of them (iv) it would also be relevant
for the said purpose against another who entered the conspiracy whether it
was said, done or written before he entered the conspiracy or after he left it,
and (v) it can only be used against a co-conspirator and not in his favour. 12
10.6. Broadly stated, the circumstances in a case, when taken
together at face value, should indicate the meeting of minds between the
conspirators for the intended object of committing an illegal act or an act
which is not illegal, by illegal means. A few bits here and there on which the
prosecution relies cannot be held to be adequate for connecting the accused
with the commission of the crime of criminal conspiracy. It has to be shown
that all means adopted, and illegal acts done were in furtherance of the
object of the conspiracy hatched. Further, the circumstances relied on for
the purposes of drawing an inference should be prior in point of time than
the actual commission of the offence in furtherance of the alleged
conspiracy.13
10.7. The principles governing the law of conspiracy in India have
been succinctly summarised in Nalini14 and Navjot Sandhu15 as follows:
12 Sardar Sardul Singh Caveeshar v. State of Maharashtra - [AIR 1965 SC 682]
13 Esher Singh v. State of A.P. - [(2004) 11 SCC 585]
14 State through Superintendent of Police CBI/SIT v. Nalini - [(1999) 5 SCC 253]
15 State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru - [(2005) 11 SCC 600]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 53 ::
& 403/2014 & CRA(V).
1. Under Section 120-A IPC offence of criminal conspiracy is committed
when two or more persons agree to do or cause to be done an illegal act
or legal act by illegal means. When it is a legal act by illegal means overt
act is necessary. Offence of criminal conspiracy is an exception to the
general law where intent alone does not constitute crime. It is intention to
commit crime and joining hands with persons having the same intention.
Not only the intention but there has to be agreement to carry out the
object of the intention, which is an offence. The question for consideration
in a case is did all the accused have the intention and did they agree that
the crime be committed. It would not be enough for the offence of
conspiracy when some of the accused merely entertained a wish,
howsoever horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of the object of conspiracy may tend to
prove that a particular accused was party to the conspiracy. Once the
object of conspiracy has been achieved, any subsequent act, which may be
unlawful, would not make the accused a part of the conspiracy like giving
shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to
establish a conspiracy by direct evidence. Usually, both the existence of
the conspiracy and its objects have to be inferred from the circumstances
and the conduct of the accused.
4. Conspirators may for example, be enrolled in a chain - A enrolling B, B
enrolling C, and so on; and all will be members of a single conspiracy if
they so intend and agree, even though each member knows only the
person who enrolled him and the person whom he enrols. There may be a
kind of umbrella-spoke enrolment, where a single person at the centre
does the enrolling and all the other members are unknown to each other,
though they know that there are to be other members. These are theories
and in practice it may be difficult to tell which conspiracy in a particular
case falls into which category. It may however, even overlap. But then
there has to be present mutual interest. Persons may be members of
single conspiracy even though each is ignorant of the identity of many
others who may have diverse roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree to play the same or an
active role.
5. When two or more persons agree to commit a crime of conspiracy, then
regardless of making or considering any plans for its commission, and
despite the fact that no step is taken by any such person to carry out their
common purpose, a crime is committed by each and every one who joins
in the agreement. There has thus to be two conspirators and there may be
more than that. To prove the charge of conspiracy it is not necessary that
intended crime was committed or not. If committed it may further help
prosecution to prove the charge of conspiracy.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 54 ::
& 403/2014 & CRA(V).
6. It is not necessary that all conspirators should agree to the common
purpose at the same time. They may join with other conspirators at any
time before the consummation of the intended objective, and all are
equally responsible. What part each conspirator is to play may not be
known to everyone or the fact as to when a conspirator joined the
conspiracy and when he left.
7. A charge of conspiracy may prejudice the accused because it forces them
into a joint trial and the court may consider the entire mass of evidence
against every accused. Prosecution has to produce evidence not only to
show that each of the accused has knowledge of the object of conspiracy
but also of the agreement. In the charge of conspiracy, the court has to
guard itself against the danger of unfairness to the accused. Introduction
of evidence against some may result in the conviction of all, which is to be
avoided. By means of evidence in conspiracy, which is otherwise
inadmissible in the trial of any other substantive offence prosecution tries
to implicate the accused not only in the conspiracy itself but also in the
substantive crime of the alleged conspirators. There is always difficulty in
tracing the precise contribution of each member of the conspiracy but
then there has to be cogent and convincing evidence against each one of
the accused charged with the offence of conspiracy. As observed by Judge
Learned Hand "this distinction is important today when many prosecutors
seek to sweep within the dragnet of conspiracy all those who have been
associated in any degree whatever with the main offenders".
8. As stated above it is the unlawful agreement and not its accomplishment,
which is the gist or essence of the crime of conspiracy. Offence of criminal
conspiracy is complete even though there is no agreement as to the
means by which the purpose is to be accomplished. It is the unlawful
agreement which is the gravamen of the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy need not be formal or express,
but may be inherent in and inferred from the circumstances, especially
declarations, acts and conduct of the conspirators. The agreement need
not be entered into by all the parties to it at the same time, but may be
reached by successive actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime, and
that there is in each conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or more persons enter into a
conspiracy, any act done by any of them pursuant to the agreement is, in
contemplation of law, the act of each of them and they are jointly
responsible therefor. This means that everything said, written or done by
any of the conspirators in execution or furtherance of the common
purpose is deemed to have been said, done or written by each of them.
And this joint responsibility extends not only to what is done by any of the
conspirators pursuant to the original agreement but also to collateral acts
incidental to and growing out of the original purpose. A conspirator is not
responsible, however, for acts done by a co-conspirator after termination
of the conspiracy. The joinder of a conspiracy by a new member does not
create a new conspiracy nor does it change the status of the other
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 55 ::
& 403/2014 & CRA(V).
conspirators, and the mere fact that conspirators individually or in groups
perform different tasks to a common end does not split up a conspiracy
into several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal
responsibility for a conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who commits an overt act
with knowledge of the conspiracy is guilty. And one who tacitly consents
to the object of a conspiracy and goes along with other conspirators,
actually standing by while the others put the conspiracy into effect, is
guilty though he intends to take no active part in the crime.
11. The cumulative effect of the proved circumstances should be taken into
account in determining the guilt of the accused rather than adopting an
isolated approach to each of the circumstances. Of course, each one of
the circumstances should be proved beyond reasonable doubt.
12. In regard to the appreciation of evidence relating to the conspiracy, the
Court must take care to see that the acts or conduct of the parties must
be conscious and clear enough to infer their concurrence as to the
common design and its execution.
Analysis of the evidence.
11. In the instant case, the prosecution would contend that the
conspiracy that was hatched to murder T.P. Chandrasekharan cannot be
appreciated save in the backdrop of the series of events that unfolded in the
past pursuant to the souring of relations between the members of the CPI
(M) and those of the RMP. We gather from the evidence on record, especially
the testimony of PW5 Rema, the widow of T.P. Chandrasekharan, that T.P.
Chandrasekharan, who was an active member and local leader of the CPI
(M), had apparently left the CPI (M), along with a few other disgruntled
members of the party to form a new party called the 'Revolutionary Marxist
Party' (RMP). While the new political outfit presented a strong challenge to
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 56 ::
& 403/2014 & CRA(V).
the CPI (M) in Onchiyam, Chorode, Azhiyoor and Eramala Panchayats, the
decision of the RMP to field T.P. Chandrasekharan as a candidate from the
Vatakara Lok Sabha constituency proved fatal for the CPI (M) candidate in
the election that followed for the latter lost to a Congress candidate. This
had infuriated the CPI (M) leadership, who felt that T.P. Chandrasekharan
was responsible for the split in the party. It is pointed out that even before
the said election, and in the run-up to it, there had been a scuffle between
the workers of the RMP party and those of the CPI (M), in which A14 P.
Mohanan, who was then the Chief election agent of the CPI (M) candidate,
had sustained injuries. A14 had then filed an FIR (Ext.P567) against some of
the RMP workers, although the said proceedings were later withdrawn.
Reference is also made to Exts.P424 report, Ext.P425 FIR and Ext.P426 final
report filed in 2012 in connection with a conspiracy hatched to take
Chandrasekharan's life in 2009. The said conspiracy allegedly involved
persons arrayed as accused in the present case, such as A2 Manoj Kumar @
Kirmani Manoj, A4 Rajeesh Thundikandi @ TK, A6 Sijith @ Annan Sijith, A8
K.C. Ramachandran, A9 C.H. Ashokan, A10 K.K. Krishnan, A15 Ajesh P. @
Kajoor and A39 M. Abhineet. Exts.P570 and P568 FIRs are relied upon to
show that there were attacks on members of the RMP by members of the
CPI (M) in 2009 and 2010, respectively, and that the modus operandi for
those attacks bear close resemblance to the modus operandi adopted in the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 57 ::
& 403/2014 & CRA(V).
instant case. Further, an attack was mounted on an RMP worker, Balan, on
21.02.2012, as evident from Ext.P569 FIR and in the case registered
thereafter, A8 K.C. Ramachandran was cited as an accused and had
undergone incarceration for some time. When he was released from prison,
the CPI (M) organised a public meeting to glorify him for his actions and in
that meeting, A10 K.K. Krishnan made a fiery speech threatening to kill T.P.
Chandrasekharan if he persisted with his anti-CPI (M) campaign. In the
words of PW6 Achuthan "ചന ശ ഖരന ന ള പ തപ ച ക ടത ന ന
ചന ശ ഖര ന തലശച നതങ ൻ പ ക ല ശപ നല ശ ഡ ൽ നത ക നത
ക ശ#ണ ര എന നക. നക ക&ഷ(ൻ നപസ ഗ ച ." The making of the
speech stands proved through the deposition of PW6 Achuthan and PW5
Rema, the wife of T.P. Chandrasekharan, who deposed about the statements
made to her by her late husband. PW6 also deposed that A8 K.C.
Ramachandran was also present at the venue where the speech was made
and was seen along with A10 K.K. Krishnan in the vicinity shortly thereafter.
Although the defence tried to discredit the testimony of PW6 by pointing out
that in the absence of any evidence to show that there was a microphone
through which the speech was delivered, he could not have heard the
speech, we find that the testimony of PW6 was that the speech was
delivered from a place very near to his shop and therefore he could hear the
speech even if there was no microphone. We don't see any reason to doubt
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 58 ::
& 403/2014 & CRA(V).
the correctness of this testimony of a person who deposed that he actually
heard the speech. Further, this testimony is corroborated by the evidence of
PW5 Rema, whose deposition that she heard about the said speech from her
husband is admissible in terms of Section 32 (1) of the Indian Evidence Act.
It may not be out of place at this juncture to also refer to her testimony that
her husband had told her about one week prior to his assassination that if
something were to happen to him at the instance of the CPI (M), that could
only happen with the knowledge of A8 K.C. Ramachandran, A9 C.H.
Ashokan, A10 K.K. Krishnan and A14 Mohanan Master. We might also refer
to Exts.P160-167 Police Intelligence Reports, marked through PW128 the
ASI, CBCID, HHW-III and proved through PW139 to PW141, who are all
Dy.SP's SB, CID (Rural), Kozhikode. Viewed against the backdrop of the
above Intelligence Reports that suggested the existence of a threat to the
life of T.P. Chandrasekharan at the instance of members of the CPI (M) and
also recommended police protection to the life of T.P. Chandrasekharan, the
above speech of A10 K.K. Krishnan can, in our view, be seen as providing not
only the motive but also the necessary incitement for the series of steps then
taken by others in furtherance of the common design to murder T.P.
Chandrasekharan.
11.1. The furtherance of the conspiracy through separate meetings of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 59 ::
& 403/2014 & CRA(V).
the various conspirators on 2.4.2012, 10.4.2012, 20.4.2012, 24.4.2012 and
25.4.2012 respectively is sought to be proved through witnesses who
deposed to having seen the respective accused in the area where the
meetings are said to have taken place at or about the relevant time, as also
through an analysis of the Call Data Records (CDR) pertaining to the phones
stated to be used by the said accused, and the procurement and use by the
various accused of an Innova vehicle in connection with the commission of
the offences alleged against them.
11.2. It is the definite case of the prosecution that there were four
phones, referred to by the prosecution as Operation Phones (OP) 1, 2, 3 and
4, respectively, that were specifically procured by the accused for use in
connection with the conspiracy and the murder that followed. The details of
the said phones, together with the reference to them in the evidence
adduced on behalf of the prosecution are as shown in the table annexed as
Appendix I to this judgment.
11.3. An analysis is attempted by the prosecution of the details shown
in the CDR's pertaining to the Operational Phones and the details in the
CDR's pertaining to the phones normally used by the accused to suggest that
some of the accused actually used the Operational Phones for committing
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 60 ::
& 403/2014 & CRA(V).
the crimes, and the analytical reasoning put forth by the prosecution, in its
attempt to connect the accused with the crime through the call data records
pertaining to the phones, is as follows:
a. The Operational Phones, although activated variously on
19.04.2012, 25.04.2012 and 01.05.2012 respectively, were not
used beyond 04.05.2012, the night of the murder.
b. Several calls were made between the Operational Phones, as well
as between the Operational Phones and the regular phones of the
accused, with heightened call activity during the time frames
associated with the events alleged against the accused in this case.
c. The tower locations of the phones in question coincided with the
tower locations specific to the places where the
conspiracies/murder took place and within the time frames during
which they are stated to have occurred.
d. The unusual nature of the calls stems from the fact that they were
made between persons who were not, under normal
circumstances, obliged to speak to each other at all or so
frequently since there was no necessity to do so while going about
their daily activities. In particular, the prosecution points to the
hierarchical structure that informs the administration of the
CPI(M) party with the Central Committee at the National level, the
State Committee at the State level, the District Committee, the
Area committee, the Local committee, and branches within each
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 61 ::
& 403/2014 & CRA(V).
district in the State. It is argued that office bearers at the local
committee level do not normally discuss official matters with office
bearers higher up in the hierarchy outside their district, and if
there are a large number of calls between such persons, then the
presumption that the discussion pertained to the official matters
cannot be invoked.
e. That A8 K.C. Ramachandran was the mastermind behind
effectuating the conspiracy, and it is he who contacted the other
accused at various stages and roped them in as co-conspirators to
achieve the object of murdering T.P. Chandrasekharan.
11.4. The arguments of the prosecution have been seriously contested
by the learned counsel for the appellants/convicted accused, who point to
the dangers of relying on the CDR data, which, according to them, fail the
test of admissibility under the Indian Evidence Act. It is contended that the
trial court erred in placing reliance on the CDR data while entering the
findings against them regarding the commission of the various offences for
which they were convicted. It is their submission that the CDRs were not
properly proved since the Section 65B certification required to establish
their admissibility in evidence was not separately proved by marking the
certificate through its maker. The learned counsel places reliance on the
decisions in Anvar16 and Arjun Panditrao17 in support of his contention. Per
16 Anvar PV v. P.K Basheer & Ors - [(2014) 10 SCC 473]
17 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors - [(2020) 7 SCC 1]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 62 ::
& 403/2014 & CRA(V).
contra, the learned special prosecutor would refer to the deposition of the
various nodal officers of the mobile telephone operators concerned to
demonstrate that the CDRs were marked variously as 'certified copy of the
CDR' or separately as 'CDR' and 'Certificate' under Section 65B of the
Indian Evidence Act. It is his contention, therefore, that the requirements of
Section 65B of the Indian Evidence Act were duly complied with, and the
CDR and certificate were marked through the nodal officer who was also the
officer in charge of the computer in which the data was stored and therefore
the certifying authority under the Act. On a consideration of the rival
contentions, we are inclined to agree with the special prosecutor that the
CDR data was duly proved through the examination of the nodal officer
concerned. Merely because the CDR and its certification were contained in
one document that was marked as a 'certified copy of the CDR', it cannot be
said that the issuance of the certificate was not duly proved. The use of the
word 'certified' denotes that the document was certified in accordance with
the provision of a law that provided for its certification. That law in the
present context is Section 65B of the Indian Evidence Act. So long as the
certificate that formed part of the CDR as a single document contained the
certification required in terms of Section 65B of the Indian Evidence Act, in
the manner clarified in Anvar and Arjun Panditrao (supra), and it was
marked through the nodal officer concerned who was its author, it had to be
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 63 ::
& 403/2014 & CRA(V).
seen as properly proved.
11.5. We do find force, however, in the objections raised by the
learned counsel for the appellants/convicted accused that in respect of many
of the phones, their use by the accused has not been proved, and further, the
incriminating circumstance as regards the use of the phone by the various
accused was never put to the accused concerned during their examination
under Section 313 Cr.P.C. This is a serious omission on the part of the
prosecution and one that forces us to discard such evidence. The stated
object of examination of an accused under Section 313 Cr.P.C is to enable
the accused personally to explain any inculpatory material against him in the
evidence adduced by the prosecution. The attention of the accused has to be
drawn to such material, and he should be given an opportunity to explain
it.18 That said, it is not necessary to ask him to explain any inference that a
court may be asked to draw and be prepared to draw from the evidence on
record.19 The questions by the court must be fair and framed in such a way
that it would enable even an ignorant or illiterate accused to know what he
is to explain and what the circumstances against him are, for which an
explanation is needed. He should be questioned separately about each
material fact which is intended to be used against him. 20 It follows,
18 Asraf Ali v. State of Assam - [(2008) 16 SCC 328]
19 R.K.Dalmia & Ors v. Delhi Administration - [AIR 1962 SC 1821]
20 Hate Singh Bhagat Singh v. State of Madhya Bharat - [AIR 1953 SC 468]; Jai Prakash Tiwari v. State of Madhya Pradesh - [AIR 2022 SC 3601]; Raj
Kumar v. State (NCT of Delhi) - [(2023) 5 SCR 754]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 64 ::
& 403/2014 & CRA(V).
therefore, that if the incriminating circumstances arising against the
accused in the evidence adduced by the prosecution are not put to the
accused, the evidence in that regard cannot be used against the said
accused.
11.6. When we exclude those phones that have not been proved as
used by any of the accused and apply the filter of Section 313 Cr.P.C
examination to the CDR data adduced as evidence against the various
accused, we find that only the CDR data in respect of the phones relatable to
the following accused can be accepted as admissible evidence.
Name of Accused Phone Number Service Call Data Nodal Officer
Provider Records
Manoj Kumar @ 9947212020 Idea Ext.P252 PW151
Kirmani Manoj (A2)
T.K. Rajeesh (A4) 9544785375 Idea Ext.P248 PW151
Muhammed Shafi (A5) 9562681111 Idea Ext.P244 PW151
K.C.Ramachandran (A8) 9447543963 B.S.N.L. Ext.P310 PW158
8547348707 Ext.P311
V. Manojan (A11) 9495260673 B.S.N.L. Ext.P317 PW158
Geothi Babu (A12) 9447688670 B.S.N.L. Ext.P314 PW158
Kunhanandan (A13) 9447642688 B.S.N.L. Ext.P304 PW158
P. Mohanan (A14) 9495804804 B.S.N.L. Ext.P329 PW158
P.V. Rafeek (A18) 9645193160 Vodafone Ext.P295 PW152
11.7. The CDR data pertaining to the above-mentioned phones,
covering the period shown therein, would reveal that several calls were
made between the above accused between 05.04.2012 and 17.05.2012 as
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 65 ::
& 403/2014 & CRA(V).
seen from the table annexed as Appendix II to this judgment. While the
defence does not dispute the making of these calls, they would argue that
the calls had no nexus with the commission of any of the offences charged
against them.
The meeting on 02.04.2012:
12. It is the case of the prosecution that sometime between 3 and
3.30 pm on 02.04.2012, A8 K.C. Ramachandran, A9 C.H. Asokan, A10 K.K.
Krishnan and A14 P. Mohanan met at the flower shop owned by A30
Raveendran at Orkatteri and conspired to take the life of T.P.
Chandrasekharan. The principal witness cited by the prosecution to prove
this meeting is PW126 Suresh Babu, who worked as a milk plant operator at
a dairy co-operative in the area and who deposed that between 3 and 3.25
pm on 02.04.2012, while he was on his way to a neighbouring studio, along
with his friend, to get some prints of his daughter's photograph, he saw A8,
A9, A10 and A14 who were active members of the CPI (M) enter the flower
shop of A30. Later, while he was returning from the studio, he heard the
conversation between the aforementioned accused, whereby they suggested
that T.P. Chandrasekharan must not be spared for his actions against the
interests of their party. In cross-examination, however, the defence has
pointed to certain material inconsistencies with his previous statement
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 66 ::
& 403/2014 & CRA(V).
under Section 161 (3) of Cr.P.C., such as with regard to the time that he had
gone to the studio (in his previous statement, he had stated that he went to
the studio at 3.15 pm whereas, in his deposition before the court, he stated
the time to be 3 pm). The time assumes importance while appreciating the
evidence of PW126 because the defence has a case, relying on the
deposition of DW5, P.M. Bhaskaran, a professional photographer, that the
aforementioned accused were at a function in Onchiyam Martyr's Square,
some distance away from the flower shop around the same time. DW5
Bhaskaran deposed that he had been hired to take photographs of the
function at the square and that he had reached the square by 2.30 pm on
02.04.2012, and he was there till 4 pm taking photographs of the event. He
has also deposed that he saw the aforementioned accused at the square
while taking the photographs, although he does not remember the exact
time the accused arrived at the square. Although the defence marked
certain photographs taken by DW5 at the square to show that the accused
were at the square during the time when PW126 deposed to having seen
them at the flower shop, it is the specific case of the prosecution that the
said photographs, and the time stamp shown on them, cannot be admitted in
evidence since the necessary certification in terms of Section 65B of the
Indian Evidence Act was not produced by the defence.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 67 ::
& 403/2014 & CRA(V).
12.1. The trial court, at paragraphs 408 to 430 of the impugned
judgment, found that there was no improbability in the evidence of PW126
Suresh Babu that at about 3 pm or 3.15 pm on 2.4.2012 he had gone to the
studio there to take prints of his daughter's photograph and that the
variation of time in his testimony had no effect on the plea of alibi raised by
the accused (which the court found had not been established). It also
believed him to be a person who could identify the voice of A8 K.C.
Ramachandran and A14 P. Mohanan as he was a local leader of the CPI (M)
as were A8 and A14. It found that A8 and A14 had admitted in their
statements filed under Section 313 Cr.P.C that they had previous
acquaintance with PW126. His testimony that his duty time at the milk
society ended at 1400 hrs that day was also found acceptable. Despite that,
however, his testimony was found unreliable on account of the fact that he
was a partisan witness who had reasons to be inimical towards the leaders
of CPI (M) and also because the court found it highly improbable that the
conspirators would talk in a loud voice about a sensitive issue and that too in
a shop where anybody could have entered without notice.
12.2. We concur with the trial court's finding that it was highly
improbable that the conspirators would talk loudly about a sensitive issue
and that it was unbelievable that PW126 would have overheard their
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 68 ::
& 403/2014 & CRA(V).
conversation. That apart, the oral evidence of DW5 P.M. Bhaskaran, the
professional photographer, also establishes the presence of A8 and A14 at
the Onchiyam Martyr's Square during the relevant time. Axiomatically, the
alleged meeting of 02.04.2012 has to be seen as not proved.
Events between 02/04/2012 and 10/04/2012:
13. The prosecution relies on the CDR details of the phones allegedly
used by A1 Anoop, A8 K.C. Ramachandran, A9 C.H. Asokan, A10 K.K.
Krishnan, A11 Manojan and A12 Geothi Babu to show that there were a
series of phone calls between the said accused on the days between
02.04.2012 when the first meeting took place at the flower shop at Orkatteri
and 10.04.2012 when the next meeting took place at Sameera Quarters,
Chokli. However, for the reasons already stated above while discussing the
admissibility of CDR data, we can consider only the 11 calls made between
A8, A11 and A12 during the said period, the details of which are shown in
Appendix II.
The meeting on 10.04.2012:
14. The prosecution alleges that on 10.04.2012, between 4 and 5 pm,
A1 Anoop, A3 Kodi Suni, A8 K.C. Ramachandran, A11 Manojan and A12
Geothi Babu met at a room in Sameera Quarters, Chokli with a view to carry
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 69 ::
& 403/2014 & CRA(V).
forward their plans to eliminate Chandrasekharan. One of the witnesses
relied on by the prosecution to prove the said meeting is PW86 Kattil
Pushparaj, a contract worker who supposedly went to Sameera Quarters to
find migrant labourers to employ them for some contract work. He deposed
that he had political affiliation with the RSS and that when he had gone to
the quarters on that day, he saw all the aforementioned accused, except A12
Geothi Babu, in a room on the first floor of the building. The prosecution
also relies on the CDR pertaining to the phones used by the said accused to
demonstrate that although many calls were made between the said accused
during the day on 10.04.2012, there were hardly any calls between them
from 4.10 pm to 5 pm on that day. The prosecution uses this evidence to
suggest that the aforesaid accused were, in fact, present in the room in
Sameera Quarters on the said date in connection with the conspiracy. The
defence argument is that PW86's testimony has to be seen as that of a
partisan witness since he is an office bearer of the RSS, and he was an
accused in a murder case involving a CPI (M) worker. They also place
reliance on Ext.P357 mahazar to demonstrate that while PW86 had deposed
that he saw the various accused through a window to the room where they
were present, there was, in fact, no window to the said room. His
identification of A8 on 15.06.2012 at the office of the Dy.SP is also
challenged by pointing out that A8 was in judicial custody that day. They also
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 70 ::
& 403/2014 & CRA(V).
highlight certain omissions and contradictions in the evidence of this
witness.
14.1. The other witness on whom reliance is placed by the
prosecution is PW162 Sajeendran Meethal, a coolie worker, who deposed to
having seen all the above accused at the balcony on the first floor of
Sameera Quarters at about 5 pm on 10.04.2012. He went on to identify the
said accused in court at the time of his examination. In cross-examination, it
was brought out by the defence that he is affiliated with the RSS and was
involved in a case for the attempted murder of a CPI (M) worker. It was also
brought out that in his previous statement, he had stated that it was because
he saw the other accused along with A3 Kodi Suni and A5 Mohammed Shafi
that his attention was drawn to their presence on the first floor of Sameera
Quarters, whereas in his deposition in court, he stated that he had seen the
other accused along with A3 Kodi Suni and that A5 Mohammed Shafi was
not there. Here too, the defence argument is that the witness has to be seen
as a partisan witness owing to his association with the RSS. It is also pointed
out that he was involved as an accused in a case of attempted murder of a
CPI (M) worker. They also highlighted certain omissions and contradictions
in the evidence of this witness, especially his erroneous identification of A5
Mohammed Shafi and his statement that he did not know anything about
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 71 ::
& 403/2014 & CRA(V).
A12 Geothi Babu or his family members.
14.2. The trial court, at paragraphs 431 to 437 of the impugned
judgment, found the evidence of PW86 and PW162 unreliable because they
were partisan witnesses and were likely to falsely implicate CPI (M) workers
because of their political enmity with the latter. On an appreciation of the
evidence on record, however, we are inclined to take a different view. It is
trite that the credibility of a witness is not to be disbelieved solely because
his political affiliation is opposed to that of the accused. As noted above,
barring their political affiliation, there is no material contradiction or
omission pointed out by the defence in the testimonies of the said witnesses
in court. PW86 clearly deposed that he saw A1 Anoop, A3 Kodi Suni and A8
K.C. Ramachandran in a room on the first floor of Sameera Quarters, and
PW162 deposed that he saw A1 Anoop, A3 Kodi Suni, A8 K.C.
Ramachandran, A11 Manojan and A12 Geothi Babu at the balcony on the
first floor of the said building. It is true that in Ext.P357 mahazar, there is no
mention of a window to the building, but PW163, who prepared Ext.P357
mahazar, gave a valid explanation that the non-mentioning of the window
therein was a bona fide omission. Further, the misdescription of the name of
one of the accused as Shafi in the 161 statement of PW162 cannot be seen
as vitiating the entire testimony of the said witness, especially when the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 72 ::
& 403/2014 & CRA(V).
deposition as a whole inspires confidence in the court. When minor
discrepancies or variations are pointed out in the statements of witnesses,
the court has to see whether these discrepancies and variations are material
and affect the prosecution's case substantially. Every variation may not be
enough to adversely affect the case of the prosecution. Similarly, the court
should not draw any conclusion by picking up an isolated portion from the
testimony of a witness without adverting to the statement as a whole. 21
14.3. We find nothing to doubt the evidence of PWs 86 and 162 that
they saw A1, A3, A8, A11, and A12 at Sameera Quarters between 4 pm and 5
pm on 10.04.2012. Their evidence in this regard is consistent and credible
and inspires confidence, more so when we find that there is corroborative
electronic evidence in the form of CDR data (Exts.P310, P311, P317 & P314)
that proves that A8, A11 and A12 were within the coverage of the Chokli
Telecommunication tower during the relevant time. While it is significant
that the said accused were not residents of Chokli, the call records indicate
that although there were several calls between A8, A11 and A12 on that day,
there were no calls between them from 4 pm to 5 pm on that day although
they were within the range of the Chokli tower. This would suggest that they
were all together within the range of the Chokli Telecommunication tower
during the said period. We are therefore of the definite view that the
21 Shyamal Ghosh v. State of West Bengal - [(2012) 7 SCC 646]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 73 ::
& 403/2014 & CRA(V).
prosecution version that A1 Anoop, A3 Kodi Suni, A8 K.C. Ramachandran,
A11 Manojan and A12 Geothi Babi met at Sameera Quarters between 4 pm
and 5 pm on 10.04.2012 stands proved.
Events between 10/04/2012 and 20/04/2012:
15. The prosecution relies on the CDR details of the phones belonging
to A1 Anoop, A5 Mohammed Shafi, A8 K.C. Ramachandran, A10 Krishnan,
A11 Manojan, A12 Geothi Babu, A13 Kunhanandan to demonstrate that on
11.04.2012 there were calls between A13 Kunhanandan and A1 Anoop and
A12 Geothi Babu and A13 Kunhanandan. Similarly, on 13.04.2012, there
were calls between A8 Ramachandran and A10 Krishnan, A12 Geothi Babu
and A13 Kunhanandan. On 14.04.2012, there were calls between A8
Ramachandran and A10 Krishnan. On 15.04.2012, there were calls between
A12 Geothi Babu and A13 Kunhanandan, A12 Geothi Babu and A11
Manojan. On 16.04.2012, there were calls between A12 Geothi Babu and
A13 Kunhanandan. On 17.04.2012, there were calls between A1 Anoop and
A11 Manojan as well as between A8 Ramachandran and A10 Krishnan. On
18.04.2012, there were calls between A12 Geothi Babu and A13
Kunjanandan, as well as between A1 Anoop and A11 Manojan and A1 Anoop
and A5 Mohammed Shafi. On 19.04.2012, there were calls between A1
Anoop and A11 Manojan as well as between A12 Geothi Babu and A13
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 74 ::
& 403/2014 & CRA(V).
Kunhanandan. It is the case of the prosecution that while under normal
circumstances, calls between the accused who are members/leaders of the
CPI (M) can probably be explained as routine in nature; it is the proximity of
these calls with the calls made between party members such as A13
Kunhanandan and persons with known criminal background such as A1
Anoop, who is not a party member, that suggest that the calls between the
party members/leaders too were made in connection with the conspiracy in
the instant case.
15.1. In this context, we have to bear in mind that we have earlier
dealt with the admissibility of electronic evidence as against the various
accused and have found that only the CDR data pertaining to those phones
mentioned in Appendix II will count as admissible evidence. Taking into
account only those phones for the present purposes, we find that there were
21 calls between A8 K.C. Ramachandran, A11 Manojan, A12 Geothi Babu
and A13 Kunhanandan. While the defence points out that it could well be
that the calls made between the above accused were routine ones to discuss
party matters or personal matters, we have to appreciate this evidence in
the light of the totality of the evidence regarding the conspiracy. The
relevance of the above phone calls can be appreciated only at the stage of
analysing the evidence for the purposes of Section 10 of the Indian Evidence
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 75 ::
& 403/2014 & CRA(V).
Act. For the present, all that can be stated as proved is the making of the
calls by the above accused.
The meeting on 20.04.2012:
16. It is the prosecution case that on the morning of 20.04.2012,
between 7.30 and 8 am, A8 Ramachandran, A11 Manojan and A13
Kunjhnandan met at the last mentioned person's house at Parattu to discuss
the steps to be taken in furtherance of the conspiracy to murder T.P.
Chandrasekharan. Reliance is placed on the testimony of PW19 Babu E, a
carpenter, who deposed that while he was going to Thiruvangad temple to
conduct a Santhanagopala Puja in the name of his wife at about 7.45 am that
morning, he saw A8 Ramachandran and A11 Manojan going into A13
Kunhanandan's house. His testimony has been believed by the trial court at
paragraphs 438-448 of the impugned judgment, although the defence sought
to discredit him by producing DW4 Manoharan, the Executive Officer of
Thiruvangad temple, to depose that there was no Puja under the name of
Santhanagopala Puja offered at the temple.
16.1. The learned counsel for the convicted accused would point out
that the testimony of PW19 if believed, would only establish that A8 and A11
were proceeding to the house of A13 on a motorcycle and not that they had,
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 76 ::
& 403/2014 & CRA(V).
in fact, gone into the house. Further, nothing in the testimony pointed to the
presence of A13 in the house or their meeting with A13 therein. We find
ourselves unable to accept the submissions of the learned counsel. The trial
court, on the basis of the material considered by it, was justified in finding
that the testimony of PW19 effectively proved the presence of A8 and A11 at
the house of A13 and that A8, A11 and A13 had a meeting therein. We have
come across corroborative electronic evidence that places A8, A11 and A13
within the range of the Paratt telecommunication tower during the relevant
time. Further, A13, in his written statement under Section 313, categorically
states that A8 and A11 did not come to his house that morning and not that
he was not there that morning. Considering the above evidence, we feel that
the presence of A8 and A11 in the house of A13 and the meeting between
them can be safely inferred. As regards the submission of the learned
counsel for the defence based on the testimony of DW4, we find that in his
cross-examination, DW4 admitted that a person who pays for a Vazhipadu
(offering) can get the Santhanagopala mantra chanted by the Pujari.
16.2. We also note that a comparison of the CDR data (Exts.P304,
P314 & P317) pertaining to the admissible phones relating to the respective
accused indicates that there were 4 calls between A12 Geothi Babu, A13
Kunhanandan and A11 Manojan on that day as indicated in Appendix II.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 77 ::
& 403/2014 & CRA(V).
While on the electronic evidence pertaining to this day, we might also notice
that the prosecution had a case that while having the meeting at the house
of A13, the latter had made a call to A14 Mohanan Master using one of the
Operational Phones that A8 was using. The prosecution relied upon this
evidence to connect A14 with the conspiracy. The trial court, however,
rejected this evidence, and in our view, rightly so, since there was no
admissible evidence regarding the use of the Operational Phone by A8.
Events between 20.04.2012 and 24.04.2012:
17. The prosecution has adduced evidence in the form of CDR data to
show that there were calls between A1 Anoop, A2 Kirmani Manoj, A5
Mohammed Shafi, A8 Ramachandran, A10 Krishnan, A11 Manojan, A12
Geothi Babu and A13 Kunhanandan during the aforesaid period. After
excluding those calls that were made from phones whose use by the accused
has not been proved, we find that there were 12 calls made between A2, A5,
A8, A11, A12 and A13, as indicated in Appendix II. Further, as already
discussed above, the relevance of the above phone calls can be appreciated
only at the stage of analysing the evidence for the purposes of S.10 of the
Indian Evidence Act. For the present, all that can be stated as proved is the
making of the calls by the above accused.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 78 ::
& 403/2014 & CRA(V).
The meetings on 24.04.2012:
18. The prosecution alleges that A2 Kirmani Manoj, A3 Kodi Suni, A5
Mohammed Shafi, A7 Shinoj and A18 Rafeek met at the residence of A13
Kunjanandan in Parattu in connection with the conspiracy. It is their case
that A3, A5 and A7 had gone to the house of A13 in a Sumo vehicle that A18
drove. They rely on the oral testimony of PW20 Valsan, a fish vendor, who
lives close to the residence of A13 Kunhanandan and who deposed to seeing
the other accused there. His evidence does not, however, inspire confidence
because he wrongly identified A1 Anoop as one of the accused he saw on
that date when even the prosecution does not have such a case. There are
also material contradictions from his previous statement brought out by the
defence while cross-examining him. Further, the defence also adduced
evidence through DW1 Prasadan, a workshop owner who deposed that no
motorbike was brought to his workshop for repair as deposed by PW20
Valsan. PW20's deposition was, in our view, rightly disbelieved by the trial
judge at paragraphs 449-452 of the impugned judgment.
18.1. A comparison of the CDR data (Exts.P252, P244, P310, P311,
P317, P314 & P304) of the respective accused, however, reveals that there
were four calls between A2 Kirmani Manoj, A5 Mohammed Shafi, A8 K.C.
Ramachandran, A11 Manojan, A12 Geothi Babu and A13 Kunhanandan. The
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 79 ::
& 403/2014 & CRA(V).
specific details of the calls made and their duration are as indicated in
Appendix II. Here again, the relevance of the above phone calls can be
appreciated only at the stage of analysing the evidence for the purposes of
Section 10 of the Indian Evidence Act. For the present, all that can be stated
as proved is the making of the calls by the above accused.
18.2. The prosecution also alleged that A8 Ramachandran and A1
Anoop were at Chokli at about 7.20 pm on 24.04.2012 for the purposes of A8
handing over an amount of Rs.10000/- to A1 in front of Sameera quarters. As
no evidence was adduced to prove the said fact, the trial court found this
allegation unsubstantiated in paragraph 453 of the impugned judgment. We
see no reason to interfere with the said finding of the trial court.
Events on 25.04.2012:
19. The prosecution alleges that at about 6.30 am on 25.04.2012, A8
Ramachandran met A1 Anoop at Pallikkunnu and handed over Rs.40,000/- to
him. To prove this, they rely on the testimony of PW48 Prakasan, who
deposed that he saw A8 Ramachandran handing over a package of currency
notes to A1 Anoop at Pallikkunnu junction and that Anoop had counted the
same before leaving the place. He also deposed that he happened to be in
Pallikkunnu that day because of a call he had received at 6 am from one
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 80 ::
& 403/2014 & CRA(V).
Bhaskaran, who wanted to see his property at Karyad that he had put up for
sale. While the testimony of PW48 Prakasan, to the extent it states that he
saw A1 Anoop counting the money and that it was around Rs.40,000/- in
notes of Rs.500/- and Rs.1000/- denomination, does seem incredible, the
defence has also produced Ext.D28 CDR marked through PW158 to show
that there was no call made to PW48's phone at 6 am on that day. It was for
this reason that the trial court disbelieved the evidence of PW48 and, in our
view, rightly so. This aspect of the prosecution case cannot be seen as
proved.
19.1. The prosecution also relies on the testimony of PW7 Naveendas,
a software employee, who is the owner of the Innova Vehicle bearing
Registration Number KL-58D-8144, and PW8 Harris, a person doing
business in ready-made garments, to prove that PW7 Naveendas had leased
out the Innova vehicle to A18 Rafeek through CW18 Rajeesh and that PW8
Harris had acted as the middleman in the transaction. The latter deposed to
seeing the handover of the vehicle by Rajeesh to A18 Rafeek and Rafeek
handing over a blank cheque as security to Rajeesh. The learned counsel for
the defence raised an argument that without the examination of CW18
Rajeesh, the transaction regarding the Innova vehicle cannot be seen as
proved. We find, however, that the transaction stands proved through the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 81 ::
& 403/2014 & CRA(V).
evidence of PW7 and PW8, and hence the mere non-examination of CW18
cannot be seen as fatal to the case of the prosecution. There is also evidence
to show that CW18 Rajeesh purchased the stamp paper in the name of A18
Rafeek and that PW8 Harris saw Rafeek handing over the same to Rajeesh.
Although the defence seeks to discredit the said witnesses by pointing to
inconsistencies in their version with that recorded in C9 and C11 remand
reports and by relying on the decisions in Raman Velu22and Ushaben23, we
are of the view that the purpose of a remand report is merely to safeguard
the accused against arbitrary detention and cannot be used for the purpose
of contradicting the oral testimony of a witness in court.
19.2. We might, in this context, refer to the general submission made
by the learned counsel for the defence that in many of the remand reports
filed in connection with the arrest of the various accused, the details of the
physical meetings that formed part of the allegation of conspiracy were not
specifically mentioned and it was mentioned for the first time only in the
final report. We don't see any merit in the said submission. It is a well-
settled legal position that remand applications are to be filed by the
investigating agency only to satisfy the court that there are justifiable
grounds to detain an accused already arrested in police or judicial custody.
22 In Re: Raman Velu - [1972 KLT 922]
23 Manubhai Ratilal Patel through Ushaben v. State of Gujarat & Others - [(2013) 1 SCC 314 ]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 82 ::
& 403/2014 & CRA(V).
The investigating agency is not required to state in such an application the
materials, if any, collected against an accused during the investigation. 24
19.3. It is also significant that A18 Rafeek's signature as appears on
the cheque tallies with his signature on the Section 313 statement recorded
by the court. Further, although the defence tries to establish with reference
to the cheque issue register maintained by the bank that the cheque in
question was actually obtained on 24.04.2012 and not on 25.04.2012, PW70
Rugmini, the Secretary-in-charge of the Kodiyeri Co-operative Bank has
deposed that someone had obtained a cheque leaf in relation to the account
standing in the name of A25 Rajikanth on 25.04.2012 and that the mention
of the date 24.04.2012 in the cheque issue register was a clerical mistake.
There was no cross-examination by A25 Rajikanth on this aspect. Similarly,
while the stamp vendor PW75 T. Raveendran clearly deposed that he sold
the stamp paper to A18 Rafeek, there was no cross-examination by A18 on
that aspect. Further, a perusal of the CDR data of the phone used by A18
Rafeek (Ext.P295) reveals that six calls were made between A18 and PW8
Harris on 24.04.2012 and seven calls between them on 25.04.2012. The
details of these calls are also mentioned in Appendix II.
19.4. The above evidence would, in our view, suffice to find that the
24 State of Maharashtra v. Ramesh Taurani - [(1998) 1 SCC 41]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 83 ::
& 403/2014 & CRA(V).
Innova car was entrusted to A18 Rafeek by PW7 through PW8. We,
therefore, concur with the finding of the trial court on the said aspect.
Events on 26.04.2012:
20. PW22 Pramod, a carpenter, deposed that he saw A4 Rajeesh and
A22 Sanoop in the Innova car near the party office at Nadapuram at around
4 pm on 26.04.2012. While A4 was arrested on 07.06.2012 and A22 was
arrested on 18.06.2012, PW22 Pramod's statement to the police was only on
13.07.2012. Besides, the deposition of PW151, the nodal officer of Idea
Mobile, is to the effect that A4's phone was not in any tower location in
Kozhikode district (whereunder Nadapuram is situated) on that day. It has
also come out through Ext.P297 CDR data pertaining to the phone used by
A22 Sanoop that he was in Karyad/Vellikulangara during the relevant time.
Probably on account of the said inconsistencies, the trial court did not
believe the deposition of PW22, and in our view, rightly so.
20.1. The CDR data analysis on the said date (Exts.P252, P244, P317,
P314, P304 & P329), however, reveals and proves that there were seven
calls between A2 Kirmani Manoj, A5 Mohammed Shafi, A11 Manojan, A12
Geothi Babu, A13 Kunhanandan and A14 Mohanan Master as detailed in
Appendix II.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 84 ::
& 403/2014 & CRA(V).
Events on 27.04.2012:
21. PW16, a coolie worker, deposed that he saw A16, A17 and certain
others in an Innova car that was parked at Chombala fishing harbour at
around 9 am on 26.04.2012. He also identified A16, A17 and the car in
court. The charge against A16 and A17, however, was that they were in the
car along with A3 Kodi Suni, A4 Rajeesh, A5 Mohammed Shafi and A15.
PW16 did not identify the said persons. The CDR data of the phone used by
A4 Rajeesh, Ext.P248, showed that during the relevant time, he was at
Karyadupuram near Koothuparamba. Similarly, Ext.P244, the CDR data
pertaining to the phone used by A5 Mohammed Shafi showed that he was at
Pallur near Chokli at the relevant time. This testimony was, therefore,
rightly disbelieved by the trial court.
21.1. The CDR data analysis on the said date reveals a call between
A11 Manojan and A12 Geothi Babu on that day, as detailed in Appendix II.
Events between 28.04.2012 and 01.05.2012:
22. The CDR data analysis on the said dates reveals that there were
three calls made between A11 Manojan, A12 Geothi Babu and A13
Kunhanandan as detailed in Appendix II.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 85 ::
& 403/2014 & CRA(V).
Events on 02.05.2012:
23. The prosecution relies on two incidents that took place on
02.05.2012 at 7.30 pm in Orkatteri and 9.30 pm at Koroth Road,
respectively, to suggest the involvement of A2 Kirmani Manoj, A5
Mohammed Shafi, A8 Ramachandran, A27 Rajith, A28 Rameesh, A29 Dipin
and A30 Raveendran in the murder of T.P. Chandrasekharan. PW11 Shivji
EK, a mason, deposed to seeing A27 Rajith and A28 Rameesh coming on a
motorbike and talking to A8 Ramachandran at about 7.30 pm. After that,
they stood at the bus stand nearby, on the opposite side of which T.P.
Chandrasekharan was seen standing. PW11 deposed to seeing A30
Raveendran walk up to T.P. Chandrasekharan and hand over Ext.P3
invitation letter to him. After that, A27 and A28 allegedly left the place, and
A30 went to his flower shop nearby. Although PW11 deposed that he saw the
incident along with CW23 Sinish, the prosecution did not examine Sinish. At
any rate, the trial court found the testimony of PW11 to be believable to the
extent it proved that on the evening of 02.05.2012, A27 Ranjith found out
the identity of T.P. Chandrasekharan with the assistance of A30 Raveendran,
but that the said testimony was not sufficient to prove the charge against
A27 that he used that knowledge or information for facilitating the murder
of T.P. Chandrasekharan. As rightly found by the trial court, there is no
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 86 ::
& 403/2014 & CRA(V).
evidence to find that A27 Rajith had pointed out T.P. Chandrasekharan to any
of the assailants.
23.1. Similarly, PW15 Rajeevan deposed to seeing A28 Rameesh, A29
Dipin, A2 Kirmani Manoj and A5 Mohammed Shafi at Koroth Road, about 4
km from the bus stand at Orkatteri, at about 9.30 pm. According to him, he
saw the aforementioned accused taking a gunny bag containing some
articles from some bushes nearby and putting it inside the Innova vehicle.
He went on to state the number of the vehicle and also identified the vehicle
in court. The defence merely pointed to contradictions in the testimony of
PW15 in that he had not stated the number of the vehicle or the fact that it
was a moonlit night in his previous statement to the police. The trial court
did not see the said contradictions as material and rightly went on to believe
the said testimony in paragraphs 297 and 298 of the impugned judgment.
However, the trial court found that merely because it was proved that A28
and A29 had contact with some members of the gang of assailants, it could
not be found that they were aware of the plot to murder T.P.
Chandrasekharan and that they concealed the existence of such plot. When
considered against the backdrop of the charges levelled against A28
Rameesh and A29 Dipin, which did not include involvement in the
conspiracy to murder T.P. Chandrasekharan, the finding of the trial court
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 87 ::
& 403/2014 & CRA(V).
appears to us to be legally unassailable.
23.2. The CDR data analysis (Exts.P317 & P314) reveals that there
was a call between A11 Manojan and A12 Geothi Babu on 02.05.2012, and
another call between them on the next day, as detailed in Appendix II.
Events on 04.05.2012:
24. The prosecution relies on three incidents that happened at 1600
hrs, 2100 hrs and 2115 hrs on 04.05.2012 at Chokli taxi stand, Koroth Road
and Orkatteri Jeep stand respectively to prove the involvement of A1 Anoop,
A2 Kirmani Manoj, A3 Kodi Suni, A5 Mohammed Shafi, A6 Sijith, A7 Shinoj,
A20 Dilshad, A21 Fasalu and A31 Pradeepan M.K in the murder of T.P.
Chandrasekharan that took place at Orkatteri at 2213 hrs on the same day.
24.1. PW18 Santhosh deposed that at 1600 hrs, when he and some of
his friends had arrived at Chokli taxi stand, A1 Anoop, A3 Kodi Suni, A5
Mohammed Shafi, A7 Shinoj and A31 Pradeepan came there in an Innova
car and had an altercation with them. That he reported the matter to the
Panoor police station, where he filed a written complaint (Ext.P17), which
was then forwarded to the Chokli police station for follow up action. He also
identified the vehicle as the same one as was seen in the court compound on
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 88 ::
& 403/2014 & CRA(V).
the date of giving his testimony. The defence, on the other hand, seeks to
discredit the witness by suggesting that he was an RSS supporter with
criminal antecedents and by relying on Ext.P208 register maintained at the
Chokli police station and pointing out that there are signs of a page having
been torn out of the said register for the purpose of inserting the details
recorded of the incident cited by PW18 Santhosh. It was also pointed out
that although the statement of PW18 was recorded on 11.05.2012, Ext.P17
complaint was recovered only on 19.07.2012 under cover of Ext.P539
seizure mahazar, along with Ext.P208 complaint register. Further, CW 250,
the ASI, Chokli, who was cited to prove the seizure; CW273, the attester to
the mahazar; and CW242, the Chokli SI, who enquired into Ext.P17
complaint, were not examined as a witness by the prosecution. We fail to see
how the mere fact of non-examination of the above witnesses can affect the
oral testimony of PW18 when PW149 Dominic, CI of Police, Panoor has
clearly spoken on the enquiry made into P17 complaint and the action taken
thereon.
24.2. The trial court found that merely because PW18 was an RSS
supporter and had criminal antecedents, his testimony did not have to be
discarded (paras 301-303 of the impugned judgment). It relied on the said
evidence to hold as proved the fact that at about 1600 hrs on 04.05.2012, A3
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 89 ::
& 403/2014 & CRA(V).
Kodi Suni and A5 Mohammed Shafi were found in Chokli taxi stand in the
Innova car bearing registration number KL-58D-8144. We see no reason to
interfere with the above finding of the trial court. However, we find that the
trial court did not specifically find the presence of A31 Pradeepan to have
been proved through the acceptance of the evidence of PW18. While this
may have been on account of the trial court having discussed the evidence of
PW18 in the context of circumstantial evidence against A1 to A7, we are of
the view that the evidence of PW18 Santhosh that was believed by the trial
court, and that proved the presence of A31 along with A3 and A5 at Chokli
taxi stand, can also be examined in the context of Charge No.49 under
Section 201 IPC against A31 Pradeepan that is discussed later on.
24.3. PW17 Subodh, a small-time businessman, deposed that while he
was on his way to his house on his motorbike at about 2100 hrs on
04.05.2012, he saw A4 Rajeesh, A6 Sijith, A20 Dilshad and A21 Fasalu along
with some others standing near the Innova car KL-58D-8144 at Koroth road,
and loading something that looked like swords into the car. He deposed that
he could identify A20 and A21, whom he knew from before, and also
described the identifying features of A4 and A6. He also deposed to seeing a
sticker with Arabic script on the Innova car that he later identified in court
and that the accused, on seeing him, got into the car and drove away.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 90 ::
& 403/2014 & CRA(V).
Although the defence tries to cite omissions with his previous statement,
such as the mention of his friend Murugan's name, the time of his travel,
and the number of people he saw near the Innova vehicle, we cannot get
ourselves to view the above as material omissions amounting to
contradictions that would warrant the discarding of his testimony. The trial
court, too, found his evidence to be worthy of acceptance at paras 299 and
300 of the impugned judgment.
24.4. PW35 E.Radhakrishnan who runs a book and stationery store at
Orkatteri, deposed seeing A2 Kirmani Manoj and A5 Mohammed Shafi get
out of the Innova car KL-58D-8144 and talk to each other near the Orkatteri
Jeep stand at 2115 hrs. He claimed to have seen them in the light provided
through a streetlamp. The defence countered his testimony through the
evidence of DW7 Pramod, an Assistant Engineer at KSEB through whom the
load shedding details in Orkatteri was marked as Ext.D59, to suggest that
there was a power cut in Orkatteri town between 9 and 9.30 pm that
evening. The defence also relied on the evidence of DW10 AK Pavithran, an
Assistant Engineer at KSEB, who corroborated the evidence of DW7 that
there was a power cut in Orkatteri during the relevant time. On account of
the evidence adduced by the defence and based on the inconsistencies found
during cross-examination of the said witness, the trial court felt it unsafe to
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 91 ::
& 403/2014 & CRA(V).
rely on his testimony as regards seeing the Innova car and A2 and A5 on
04.05.2012 (paras 306-311 of the impugned judgment). We see no reason to
take a different view on this aspect.
24.5. The CDR data analysis on the said date reveals one call between
A11 and A12 at 2309 hrs that evening. It is also the prosecution's case that
the absence of any calls made from their own phones during the period after
2003 hrs is suggestive of the fact that after the said time, the accused were
using the Operational Phones (OP's 1 to 4). There is, however, no evidence
to prove the latter aspect.
Our Finding on Conspiracy:
25. On going through the impugned judgment of the trial court, in the
light of the evidence discussed above, we find that the discussions on
conspiracy therein proceed on the assumption that the physical act of
murder will have no relevance to a finding of conspiracy. In fact, the
discussions in the impugned judgment have focused only on the five or six
physical meetings that were alleged to have taken place between the various
accused and the incidental phone calls between them during the said period
to arrive at a finding of conspiracy. While doing so, the trial court
considered the evidence in that regard up to the date of the murder by
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 92 ::
& 403/2014 & CRA(V).
apparently assuming that the act of murder and the people involved directly
in the said act would have no relevance to a finding of conspiracy. This, in
our view, is where the trial court misdirected itself on this issue, for it is well
settled that all means adopted, and illegal acts done in furtherance of the
object of the conspiracy hatched can be used to prove the existence of the
conspiracy under Section 120B of the IPC. Section 10 of the Indian Evidence
Act clearly envisages a situation where if there is reasonable ground to
believe that two or more persons have conspired together to commit an
offence, and one of them actually commits that offence, the latter's act, if
proved, can be used for the purposes of proving both the existence of the
conspiracy as well as that he was a party to it. In Kehar Singh,25 for
instance, the fact that the accused and the person who shot dead the
deceased were together at a social gathering sometime before the shooting
and, having isolated themselves at the housetop, were seen talking and
avoided questions as to what they were talking about, was seen as sufficient
by the Supreme Court to create a reason to believe that they might be
conspiring about something. The accused was accordingly sentenced to
death along with those who actually caused death, though he was nowhere
there at the place of the shooting. Thus, we have to look at the sequence of
proven facts/circumstances commencing from those that led to the animosity
between the members of the CPI (M) and T.P. Chandrasekharan in 2009 and
25 Kehar Singh v. State (Delhi Admn) - [(1988) 3 SCC 609]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 93 ::
& 403/2014 & CRA(V).
culminating with his murder on the night of 4.5.2012 to determine whether
there was, in fact, a conspiracy to murder him that emerged at any stage.
25.1. An agreement to pursue an illegal object being the essence of
the offence of conspiracy, and the formation of an agreement between two or
more persons being a mental state that is difficult to establish through direct
evidence, we have to resort to circumstantial evidence duly analysed in the
manner prescribed under Section 10 of the Indian Evidence Act to infer the
existence of such an agreement. As is clear from the earlier discussion on
the mode of establishing conspiracy, the provisions of Section 10 of the
Indian Evidence Act mandate that (i) there has to be prima facie evidence
affording a reasonable ground for the court to believe that two or more
persons are members of a conspiracy (ii) if the said condition is fulfilled,
anything said, done or written by any one of them in reference to their
common intention will be evidence against the other (iii) anything said, done
or written by him should have been said, done or written by him after the
intention was formed by any one of them (iv) it would also be relevant for
the said purpose against another who entered the conspiracy whether it was
said, done or written before he entered the conspiracy or after he left it, and
(v) it can only be used against a co-conspirator and not in his favour.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 94 ::
& 403/2014 & CRA(V).
25.2. Keeping the above principles in mind, when we look at the
circumstances that have been proved beyond reasonable doubt in the instant
case, the picture that emerges is as follows:
There was an air of hostility between members of the CPI (M) and RMP
ever since T.P. Chandrasekharan broke away from the CPI (M) and floated
the new party viz. RMP.
That hostility took a turn for the worse when T.P. Chandrasekharan
contested as a candidate from the Vatakara constituency in the Lok
Sabha elections in 2009, and the CPI (M) candidate lost the election and
its long-held seat that year to a Congress candidate.
The hostility was taken note of by the police authorities in the state, who
had also circulated intelligence reports warning T.P. Chandrasekharan of
threats to his life and recommended the grant of police protection to his
person.
The threat perception was felt by T.P. Chandrasekharan, who told his wife
Rema (PW5) that if something untoward were to happen to him at the
instance of the CPI (M), it could happen only with the knowledge of A8
K.C. Ramachandran, A9 Ashokan, A10 Krishnan and A14 Mohanan
Master.
A10 Krishnan had made a fiery and threatening public speech in
February 2012 warning T.P. Chandrasekharan of dire consequences if he
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 95 ::
& 403/2014 & CRA(V).
persisted with his anti-CPI (M) campaigns. A8 K.C. Ramachandran was
also present at the venue of the speech and was seen discussing
something with A10 Krishnan in the vicinity of the venue shortly
thereafter.
During the period between 02.04.2012 and 20.04.2012 there were 32
phone calls between A8 K.C. Ramachandran, A11 Manojan, A12 Geothi
Babu, and A13 Kunhanandan. They are all persons with active
membership in the CPI(M).
On 10.04.2012 A1 Anoop, A3 Kodi Suni, A8 KC Ramachandran, A11
Manojan and A12 Geothi Babu were seen holding discussions at Sameera
Quarters in Chokli. A1 and A3 not being persons with any known
association with the CPI (M) and being persons against whom we have
found reliable evidence (discussed later in this judgment) that connects
them with the murder of T.P. Chandrasekharan, their meeting with A8,
A11 and A12 points towards their involvement in the conspiracy to
murder as well.
On 20.04.2012 A8 K.C. Ramachandran and A11 Manojan met A13
Kunhanandan at his house in Paraattu.
During the period between 20.04.2012 and 24.04.2012 there were 16
calls between A2 Kirmani Manoj, A5 Mohammed Shafi, A8 K.C.
Ramachandran, A11 Manojan, A12 Geothi Babu and A13 Kunhanandan.
A2 and A5 not being persons with any known association with the CPI
(M) and being persons against whom we have found reliable evidence
(discussed later in this judgment) that connects them with the murder of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 96 ::
& 403/2014 & CRA(V).
T.P. Chandrasekharan, their phone calls to A8, A11, A12 or A13 point to
their involvement in the conspiracy to murder as well.
On 25.04.2012, the Innova car bearing Registration No.KL-58D-8144 was
entrusted to A18 Rafeek by its owner, PW7 Naveendas, through PW8
Harris.
Between 26.04.2012 and 01.05.2012 there were 11 calls between A2
Kirmani Manoj, A5 Mohammed Shafi, A11 Manojan, A12 Geothi Babu,
A13 Kunhanandan and A14 Mohanan Master. There were calls between
A11 and A12 on 02.05.2012 and 03.05.2012 as well.
A2 Kirmani Manoj and A5 Mohammed Shafi were seen along with A28
Rameesh and A29 Dipin at about 9.30 pm on 02.05.2012 at a place
situated about 4 km from the bus stand at Orkatteri. They were seen
taking a gunny bag containing some articles from the bushes nearby and
putting the same inside the Innova vehicle.
At about 1600 hrs on 04.05.2012, the day of the murder, A1 Anoop, A3
Kodi Suni, A5 Mohammed Shafi, A7 Shinoj and A31 Pradeepan were seen
along with the Innova vehicle at the Chokli taxi stand.
At about 2100 hrs on the same day (04.05.2012), A4 Rajeesh TK, A6
Sijith, A20 Dilshad and A21 Fasalu were seen at Koroth road loading
something that looked like swords into the Innova vehicle.
At about 2213 hrs on the same day (04.05.2012), T.P. Chandrasekharan
was murdered by the gang of assailants comprising A1 to A7.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 97 ::
& 403/2014 & CRA(V).
25.3. As already discussed, in order to enter a finding of conspiracy,
we are required to have a 'birds eye view' of the individual circumstances
that have been proved beyond reasonable doubt and look for a pattern
therein that would afford a reasonable ground for us to believe, not just that
there may have been a conspiracy, but that there must have been a
conspiracy. To attract the provisions of Section 10 of the Indian Evidence
Act, we have to look at the proved facts and circumstances to see whether
they offer prima facie evidence affording a reasonable ground for the court
to believe that A1 to A7, A8, A10, A11, A12 & A13 were members of the
conspiracy to murder T.P. Chandrasekharan. In doing so, we find that while
there is direct and circumstantial evidence to connect A1 to A7 with the act
of murder of T.P. Chandrasekharan, there is also evidence of interaction
between the said accused and A8, A11, A12 and A13, both through physical
meetings and telephone calls. Viewed in the context of the public speech of
A10, which was found to provide the motive for the murder even by the trial
court, we feel there are reasonable grounds for us to believe that all the said
accused were members of the conspiracy. Although there is evidence to
connect A6 also to the conspiracy, we find that the prosecution has not
raised a charge of conspiracy against A6. As regards A9 and A14, there are
no facts and circumstances proved against them to sustain a finding of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 98 ::
& 403/2014 & CRA(V).
conspiracy against them. Further, when we look to the above evidence to see
whether there is a tacit understanding between the conspirators as to what
should be done or whether the relative acts or conduct of the parties are
conscientious and clear to mark their concurrence as to what should be
done, we find that the individual acts of A1 to A5, A7, A8, A10, A11, A12 and
A13 having been done with reference to their common intention of
murdering T.P. Chandrasekharan, which intention was first formed through
the public speech of A10 Krishnan and the steps taken by A8 K.C.
Ramachandran to recruit the other accused immediately thereafter, all
things said, done or written by any one of them in reference to their common
intention will operate as evidence against the other. The cumulative
evidence against all the accused is, in our view, sufficient to find the accused
A1 to A7, A8, A10, A11, A12 and A13 guilty of the offence under Section
120B of the IPC.
25.4. Before parting with this issue, we might hasten to add that we
are conscious of the fact that a finding of guilt under Section 120B against
A1 to A5, A7, A10, and A12 will have to be sustained by applying the
principles that would come into play when an appellate court reverses a
finding of acquittal by the trial court. This is because all of the above
accused were acquitted of the charge under Section 120B of the IPC by the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 99 ::
& 403/2014 & CRA(V).
trial court. As already noticed above, our finding of guilt against the said
accused is based on evidence that was adduced before the trial court but not
considered by it, owing to the particular perspective that that court held
with regard to the manner in which the offence of conspiracy had to be
established. We find that the trial court virtually proceeded on the
assumption that the making of the instigating speech by A10 and the
commission of the act of murder by A1 to A7 would not fall within the scope
of the offence of conspiracy and that it was only the actual meetings
between the various accused and the phone calls between them that would
be relevant for a finding of conspiracy. The evidence on record clearly
establishes that A1 to A7, A10 and A12 were also members of the conspiracy
to murder T.P. Chandrasekharan, along with A8, A11 and A13. While
appreciating the prosecution evidence, the trial court ignored the evidence
of conspiracy available against A1 to A7. The trial court also failed to
appreciate in the correct legal perspective the material piece of evidence
relating to conspiracy available against A10 and A12, such as PW6's
evidence regarding the public speech made by A10, the evidence of PW5
regarding the statement made to her by her late husband T.P.
Chandrasekharan, the physical meeting between A1, A3, A8, A11 and A12 at
Sameera quarters in Chokli on 10.04.2012 and the electronic evidence
showing the several calls made between A12 and the remaining accused. A
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 100 ::
& 403/2014 & CRA(V).
finding of acquittal that is based on an erroneous appreciation or non-
appreciation of the evidence on record renders the finding of the trial court
perverse in the legal sense of the term and provides justification for the
appellate court to reverse that finding. 26 We are of the definite view that the
finding of the trial court, as regards the complicity of the above accused in
the commission of an offence, under Section 120B of the IPC was not a
possible view in the light of the overwhelming evidence discussed above. It
is, therefore, that we reverse the finding of acquittal under Section 120B of
the IPC in respect of A1 to A5, A7, A10 and A12. The said accused are found
guilty of the offence under Section 120B of the IPC.
The Incident
26. The prosecution alleges that A1 Anoop drove the Innova vehicle
bearing Registration No.KL-58D-8144 (bearing fake Registration No.KL-18A-
5964) in which A2 Kirmani Manoj, A3 Kodi Suni, A4 Rajeesh, A5 Mohammed
Shafi, A6 Sijith and A7 Shinoj were travelling, and hit the Motor Cycle
bearing Registration No.KL-18A-6395 driven by T.P. Chandrasekharan at
about 10.13 pm on 04.05.2012 at the margin of the Kainatti-Orkatteri public
road near the CWSA office building in Vallikkad town, and after T.P.
26 Sheo Swarup v. King Emperor - [AIR 1934 PC 227]; Nur Mohammed v. King Emperor - [AIR 1945 PC 151]; State of Uttar
Pradesh v. Banne @ Baijnath & Ors - [(2009) 4 SCC 271]; Babu v. State of Kerala- [(2010) 9 SCC 189]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 101 ::
& 403/2014 & CRA(V).
Chandrasekharan had fallen down, A3 to A7 repeatedly struck him with
swords and caused him grievous injuries to the head and other parts of his
body with the intention of causing his death. That A3 Kodi Suni also used a
country bomb kept by A2 Kirmani Manoj to cause an explosion that was
likely to endanger persons who had reached the scene of the incident. It is
not in dispute that T.P. Chandrasekharan succumbed to his injuries.
26.1. The evidence relied upon by the prosecution to connect the
various accused with the commission of the crime under Section 302 IPC
comprises of direct evidence - (i) ocular evidence of three witnesses and
circumstantial evidence - (ii) oral evidence of other witnesses (iii)
evidence regarding recovery of the vehicle and swords used in connection
with the crime (iv) medical evidence in the form of post mortem report and
wound certificates (v) scientific evidence in the form of forensic reports and
human hair and DNA analysis reports (vi) electronic evidence in the form of
CDR data. It is on the basis of the facts and circumstances proved through
the analysis of the above evidence that we have to determine whether taken
together, they point clearly and unambiguously to the guilt of the various
accused.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 102 ::
& 403/2014 & CRA(V).
The First Information Report:
27. The learned counsel for the appellants/convicted accused have
raised objections to the reliance placed by the trial court on the evidence
adduced under each of the aforementioned categories, and we propose to
deal with all those objections in the discussion that is to follow. Before that,
however, we may refer to the objection raised by the learned counsel to the
manner in which the FIR was registered in this case. They point to the
testimony of the investigating officers who were in charge of the
investigation at the various stages to contend that there was a delay in
lodging the FIR, as also in the matter of forwarding the same to the
Magistrate concerned. They also point to the details of the incident as
recorded in the FIR to argue that there is an inconsistency in the version of
the incident as recorded in the FIR and later in the final report. We certainly
appreciate the concern of the learned counsel in as much as the importance
of registering a First Information Report (FIR) in a criminal case cannot be
understated. It is an extremely vital and valuable piece of evidence for the
purposes of corroborating the oral evidence adduced at the trial. The object
of insisting upon prompt lodging of the report to the police in respect of the
commission of an offence is to obtain early information regarding the
circumstances under which the crime was committed, the names of the
actual culprits and the part played by them, as well as the names of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 103 ::
& 403/2014 & CRA(V).
eyewitnesses present at the scene of occurrence. Delay in lodging the FIR
quite often results in embellishment, which is a creature of afterthought. On
account of the delay, the report not only gets bereft of the advantage of
spontaneity but also there is the danger of the introduction of a coloured
version, exaggerated account or concocted story as a result of deliberation
and consultation. It is, therefore, essential that the delay, if any, in lodging
the FIR is satisfactorily explained.27 It is also necessary that the FIR is
forwarded to the magistrate concerned expeditiously for any delay
occasioned could give rise to an inference that the FIR was not lodged at the
time it is alleged to have been recorded.28
27.1. In the instant case, the FIR (Ext.P2) was registered by PW4
Manoj, the Sub-Inspector of Police, at 23.20 hrs on 04.05.2012 as Crime No.
433/12 of Vatakara Police Station, and it was forwarded to the Magistrate
concerned at 10.30 hrs on 05.05.2012. PW4 was the person who first
received information about the incident through a phone call from an
unknown person and he immediately rushed to the scene of the crime. He
has deposed that on reaching the crime scene, he lifted the victim from
under the fallen motorcycle and put him in the police jeep with the help of
two persons who he later identified as PW1 Praseeth and CW2
27 Thulia Kali v. State of TN - [(1972) 3 SCC 393]; Marudanal Augusti v. State of Kerala - [(1980) 4 SCC 425]
28 Meharaj Singh v. State of UP & Ors - [(1994) 5 SCC 188]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 104 ::
& 403/2014 & CRA(V).
Ramachandran. The jeep was then driven to the general hospital at
Vadakara where PW137 Dr. C.K. Anandan, who was the doctor on duty
examined the body and certified that the body of the victim was brought
dead to the hospital, and opined that the body should be taken to the
Medical College Hospital, Kozhikode for postmortem examination. After
making the necessary arrangements for taking the body to Kozhikode, PW4
came back to the police station and registered the FIR.
27.2. The learned counsel for the appellants/convicted accused would
argue that there was a delay in registering the FIR since PW4 had obtained
information regarding the crime through the phone call, and he ought to
have proceeded to the scene of the crime only after registering the FIR.
They also contend that it was a serious omission on the part of PW4 to not
ascertain the identity of the persons who allegedly helped him carry the
victim to the police jeep. This is stated to be especially so because the
defence has a definite case that PW1 and CW2 were not there at the scene
of the crime when PW4 reached there. They also point to the fact that in
both Ext.P181 certificate and Ext.P182 intimation given by the doctor at
Vatakara (PW137) the name of the deceased person was shown as
'unknown', thereby suggesting that, contrary to his testimony in court, PW4
was not actually aware of the identity of the deceased at that time.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 105 ::
& 403/2014 & CRA(V).
27.3. The trial court has dealt with the issue at paragraphs 359 to
369 of the impugned judgment. It found by relying on the decisions in
Tapinder Singh29 and Damodar30 that there was no illegality or irregularity
occasioned by PW4 in not registering the FIR based on the information
received over the telephone from an unknown caller. We are in complete
agreement with the said finding of the trial court. Merely because PW4
received information regarding the incident without any details regarding
the perpetrators of the offence or the victim thereof, the information
received cannot be taken as the first information for the purposes of the
Cr.P.C. As observed by the Supreme Court in V.V. Panduranga Rao31 some
cryptic or anonymous oral message which in terms did not clearly specify a
cognizable offence cannot be treated as FIR. PW4 registered the FIR as
soon as he got back to the police station after ensuring that the formalities
in the hospital were over. There was, therefore, no delay in registering the
FIR in the instant case. We also find that the FIR was forwarded to the
Magistrate without any delay by 10.30 hrs the next morning. That apart, a
minor variation in the narration of the events in the FIR as regards whether
the assailants had hurled the bomb first before hacking the victim with the
swords or whether the bomb was hurled after the hacking of the victim to
29 Tapinder Singh v. State of Punjab - [AIR 1970 SC 1566]
30 Damodar v. State of Rajasthan - [AIR 2003 SC 4414]
31 State of Andhra Pradesh v. V.V. Panduranga Rao - [(2009) 15 SCC 211]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 106 ::
& 403/2014 & CRA(V).
scare away the people in the vicinity, cannot be a reason to doubt either the
ocular evidence given by an eye-witness in court or the authenticity of the
FIR itself. We have to bear in mind that PW4 was not an eyewitness to the
event, and his knowledge at the time of registering the FIR was purely based
on information that he had gathered from the scene of the crime. If, during
the course of the investigation and after recording eye-witness statements,
the final report recorded a different sequence of events, it cannot be seen as
improper or illegal.
27.4. PW4 Manoj deposed that two persons had helped him to get the
fallen motorcycle into an upright position and also to carry the body of T.P.
Chandrasekharan into the jeep in which he was taken to the hospital. He
also deposed that on the next day, when he went to the office of the Dy.S.P.
to give his statement, he identified PW1 and PW2, who were there at that
time, as the persons who had helped him the previous day. The said
evidence has not been contradicted in cross-examination. Since PW4 P.M.
Manoj is a Sub-Inspector of Police and a public servant, and his deposition is
with respect to his actions in the line of duty, and further, his presence at the
scene of the crime on the night of the murder is not disputed, we can safely
hold that PW1 K.K. Praseeth and CW2 Ramachandran were indeed present
at the crime scene when PW4 had reached there on hearing of the incident.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 107 ::
& 403/2014 & CRA(V).
We might, in this context, refer to the decision of the Supreme Court in
Sunil,32 where the court had the following observation to make about the
evidentiary value of the actions of police officers:
" We feel that it is an archaic notion that actions of the police officer should be
approached with initial distrust. We are aware that such a notion was lavishly
entertained during the British period and policemen also knew about it. Its
hangover persisted during post-independent years but it is time now to start
placing at least initial trust on the actions and the documents made by the
police. At any rate, the court cannot start with the presumption that the
police records are untrustworthy. As a proposition of law the presumption
should be the other way around. That official acts of the police have been
regularly performed is a wise principle of presumption and recognised even
by the legislature."
Direct Evidence against A1 to A7:
28. The sheet anchor of the prosecution case is the ocular testimony
of three eye-witnesses to the incident, namely, PW1 K.K Praseeth, PW2 T.P.
Ramesan @ Dinesan and PW3 T.P. Maneesh Kumar, all of whose presence at
the scene of the crime was stated to be on account of their involvement in
decoration activities by the roadside in connection with an annual
programme, styled as a gramotsav, organised by the Brothers Club. To
establish the presence of the said eyewitnesses at the crime scene, the
prosecution relies on the testimony of PW10 Suraj Kumar, the then
Secretary of the Brothers Club, who deposed that while it was initially
decided to organise the gramotsav on 21.04.2012, the event was later
postponed to a date between 5 th and 10th of May, 2012. He also deposed that
32 State, Govt. of NCT of Delhi v. Sunil - [(2001) 1 SCC 652]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 108 ::
& 403/2014 & CRA(V).
the club had obtained the necessary mike permission (Ext.P10) from the
police authorities to use the microphone for the programme on 05.05.2012.
The decisions taken at the different meetings of the club were sought to be
proved through the production of the minutes book of the club (Ext.P11 &
P11(a)). Although the defence would argue that the deposition of PW1 that
he had gone to the Vallikkad junction to tie a banner is an omission in his
previous statement, we find that the evidence on record proves that he was
engaged in decoration activities, which would take in the tying of a banner
as well, and therefore the failure to specifically mention that it was to tie the
banner that he went to the junction is not a material omission. Further, the
evidence of PW10 Suraj Kumar in this regard has not been shaken in cross-
examination. His oral testimony, coupled with Exts.P10, P11 and P11(a), are
sufficient to prove the fact that there was indeed a programme scheduled for
05.05.2012.
28.1. PW1 K.K. Praseeth, a coolie worker, deposed to seeing the
incident and later identified A1 Anoop and A2 Kirmani Manoj as the persons
who were seated in front of the Innova vehicle and the other accused viz. A3
to A7 as the persons who alighted from the vehicle to assault T.P.
Chandrasekharan on that fateful night. He further deposed to having helped
PW4 P.M. Manoj, the Sub-Inspector of Police who visited the crime scene
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 109 ::
& 403/2014 & CRA(V).
shortly thereafter, to carry the body of T.P. Chandrasekharan into the police
jeep for transporting it to the hospital. He also deposed that he had
volunteered to identify the Innova vehicle if he was taken to the place where
the vehicle was discovered the next day and that he went along with CW2
Ramachandran and the Dy.SP and identified the vehicle. He went on to state
that on 15.05.2012, he went along with CW2 to the Dy.SP office and from
there to the place where the swords were recovered, and he identified the
swords (MO1 series), although he did not sign the seizure mahazar that was
drawn up in connection therewith. Although in his testimony, he stated that
the Innova vehicle he saw bore the Registration No.KL-18A-5964 and not KL-
58D-8144, which was the number on the vehicle at the time of its discovery
on 05.05.2012; it has come out through the evidence of PW13 K.P.Rafeek,
the registered owner of the Bajaj Tempo Trax vehicle bearing Registration
No.KL-18A-5964, that the said number used on the Innova vehicle at the
time of commission of the crime was a fake one.
28.2. The defence has attempted to shake the credibility of PW1
Praseeth's testimony by pointing to contradictions/omissions from his
previous statement to the police as regards his having proceeded to the
Vallikkad junction for decorating the place in connection with the gramotsav
planned for the next day as also to the manner in which he identified A1
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 110 ::
& 403/2014 & CRA(V).
Anoop who was driving the car and who, admittedly, did not get out of the
car during the entire episode. However, we do not find them to be material
contradictions/omissions since they vary only in minor and insignificant
details from the earlier statement given by the said witness. In particular,
the identification of A1 in the light that was available in the locality cannot
be seen as improbable given the available evidence regarding the sources of
light that evening. For instance, while the defence let in evidence through
DW6 N.K. Nanu, a construction worker, to prove that the rooms on the upper
floor of the CWSA building did not have electricity and that, therefore, PW1
Praseeth could not have seen the incident, DW6 admitted in cross-
examination that there was indeed an electricity connection to the rooms in
the ground floor of the building. That apart, there is evidence on record to
prove that there was sufficient natural and artificial light that would have
enabled the witnesses to identify the accused.
28.3. As regards PW1's presence at the scene of the crime, we find
that apart from his testimony that speaks to the said fact, his presence at the
crime scene immediately after the incident is also proved through the
deposition of PW4 PM Manoj, the Sub-Inspector of Police who deposed that
it was PW1 and CW2 Ramachandran who helped him carry the body of T.P.
Chandrasekharan into the Jeep. It is also significant that on the very next
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 111 ::
& 403/2014 & CRA(V).
day, when PW4 gave his statement to the Dy.SP at the latter's office, he
identified PW1 and CW2 who were there at the time, as the persons who had
helped him the previous evening. That apart, the presence of PW1 was also
deposed to by PW125 Manoj Kumar, the police constable who was deputed
by PW4 to guard the crime scene that night. Although the defence would
point to a part of PW125's deposition that the two persons he saw that night
at the crime scene were with him till the next morning, we do not think that
the said statement contradicts his statement regarding the presence of PW1
at the crime scene that night in any manner. As regards the identification of
A1 Anoop, apart from what was stated regarding his identification at the
time when the vehicle took the turn on the road, there is also evidence on
record that points to the possibility of PW1 having noticed A1 when he was
sitting in the vehicle while the other accused were assaulting the victim. We
do not find any material omission in this regard in his previous statement.
28.4. The main thrust of the defence, however, is with reference to
the CDR data (Ext.D24) pertaining to the phone that was in the name of PW1
Praseeth's wife but which he admitted to having used, along with his wife,
during the relevant time. The said data suggests that on 05.05.2012, the
user of the phone travelled from Orkatteri to Kozhikode in the morning and
then returned to Orkatteri by the evening. It is the case of the defence that if
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 112 ::
& 403/2014 & CRA(V).
the phone was being used by PW1, then it shows that he had not gone along
with CW2 Ramachandran and the Dy.SP to identify the vehicle or to give a
statement to the Dy.SP at Vatakara on that day. We are not, however,
impressed with the said argument. PW1 had clearly deposed that the phone
was in his wife's name and that he also used it. The possibility of the phone
being used by his wife on 05.05.2012 cannot be overruled since there is
nothing in the evidence to suggest that the phone was used by PW1 on that
day. We find the evidence of PW1 Praseeth to be of sterling quality and
sufficient to prove the presence and actions of A1 to A7 in connection with
the murder of T.P. Chandrasekharan. We, therefore, concur with the finding
of the trial court on this aspect.
28.5. The other eyewitness cited by the prosecution is PW2 T.P.
Ramesan @ Dinesan, a mason, who deposed that he saw the incident and
identified A1 to A7, except A3 Kodi Suni, before the police on 22.06.2012
and 13.07.2012 respectively. The defence sought to discredit the witness by
showing his affiliation to the RMP through the testimony of DW8 Dolly and
DW9 Vasu and Exts.D61 and D64 marked through them that showed that he
had functioned as a booth polling agent of the RMP candidate at the local
panchayat election, as also his conduct in not reporting the incident to the
police or anyone else for almost five days after the incident. Further, while
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 113 ::
& 403/2014 & CRA(V).
his explanation for the delay in reporting the matter to the police was that
he had gone to his uncle's place on the next day after the incident, the CDR
data (Ext.D26) pertaining to the phone that was admittedly used by him
showed that he was present in the Vellikulangara area during the aforesaid
five days. The testimony of PW2 does not inspire confidence and hence
cannot be accepted. We, therefore, concur with the finding of the trial court
on this aspect.
28.6. The third eyewitness cited by the prosecution is PW3 T.P.
Maneesh Kumar, a gold appraiser at the Indian Bank. His testimony inspires
confidence inasmuch as it goes into particulars regarding the happenings of
that night, including details of comments that he had made on seeing the
Innova vehicle being driven on the wrong side of the road and regarding the
manner in which he, along with PW2 and CW2, was attempting to put up the
banner near the roadside. He deposes to having recognised A3 Kodi Suni
and A5 Mohammed Shafi, whom he knew from before, and also identified
the other four accused who were in the vehicle at the police station. His
explanation for not reporting the incident to the police immediately
thereafter was that he was afraid of doing so. In fact, he states that he had
stayed away from the area for three or four days. Although the defence
sought to discredit his testimony by pointing to inconsistencies in his version
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 114 ::
& 403/2014 & CRA(V).
as regards his involvement as a witness against a CPI (M) worker in another
case (S.C.595/2012) as evidenced in Exts.D1 and D2 documents produced by
the defence, we are of the view that his testimony is believable especially
because he did not choose to hide the fact that he was an active worker of
the RMP and that he had attended the inquest of T.P. Chandrasekharan's
body at Kozhikode on 5.5.2012, and the cremation at Orkatteri later that
evening.
28.7. As already noticed above, the trial court, at paragraphs 116-161
of the impugned judgment, found that while the evidence of PW1 K.K.
Praseeth can be believed, the evidence of PW2 T.P. Ramesan and PW3 T.P.
Maneesh Kumar cannot be believed. The evidence of PW2 was not believed
because he had stated that immediately after the incident, he had gone to
his uncle's place at Karthikapally and had returned only on 09.05.2012.
However, the CDR data pertaining to the phone stated to have been used by
him showed the tower location as Vellikulangara. That apart, he was also
found to be a partisan and interested witness who had political enmity
towards the local leaders of CPI (M). The court disbelieved the evidence of
PW3 on finding that he was a red volunteer of RMP and, therefore, a
partisan witness and, further because he had not disclosed the fact of having
seen the incident either to the police or to other members of the RMP till
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 115 ::
& 403/2014 & CRA(V).
09.05.2012 on which date he went to the office of the Dy.SP Vatakara and
gave his statement. The court also found that it was improbable that he had
had an occasion to see A1 Anoop on that night since he stated that the driver
of the vehicle never got out of it at all.
28.8. For the reasons already stated above, we concur with the trial
court's findings regarding the evidence of PW1 that was believed and the
evidence of PW2 that was disbelieved. However, we cannot accept the trial
court's finding that disbelieved the evidence of PW3 T.P. Maneesh Kumar.
The mere fact that his political affiliation was not aligned with that of the
accused is no reason to discredit his testimony. So also, his conduct after the
incident, of not disclosing to the police or to anybody else for four days that
he had witnessed the crime, cannot be said to be unnatural. This is more so
when he deposed that he was overcome with fear. As was observed by the
Supreme Court in Rana Partap:33
"Every person who witnesses a murder reacts in his own way. Some are
stunned, become speechless and stand rooted to the spot. Some become
hysteric and start wailing. Some start shouting for help. Others run away to
keep themselves as far removed from the spot as possible. Yet others rush to
the rescue of the victim, even going to the extent of counter-attacking the
assailants. Everyone reacts in his own special way. There is no set rule of
natural reaction. To discard the evidence of a witness on the ground that he
did not react in any particular manner is to appreciate evidence in a wholly
unrealistic and unimaginative way."
33 Rana Partap & Ors v. State of Haryana - [(1983) 3 SCC 327]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 116 ::
& 403/2014 & CRA(V).
28.9. In the instant case, the conduct of PW1 and PW3 have to be
appreciated in the backdrop of the above observation. PW1, it will be
recalled, went home immediately after helping PW4 carry the victim into the
jeep and did not speak about the incident to anyone else till the next day
when he volunteered, along with CW2, to help the police identify the Innova
vehicle that had been found abandoned at a nearby place. This cannot be
seen as an unusual conduct on the part of PW1 so as to cast any doubt on his
testimony. As for PW3, he has deposed that he did not disclose the
particulars of the incident to anyone for over four days because he was
afraid to do so. We find that his fear cannot be seen as unrealistic. He
resides in a neighbourhood where political rivalry often takes violent turns
and visits any police informant with dire and unimaginable consequences. If
he took some time to reflect on whether or not to inform the police of the
fact that he was an eyewitness to the incident, he cannot be faulted because
fear operates in myriad ways in the human mind. His detailed statement of
the events of that fateful night, as also his truthful disclosure of the fact that
he had attended the post-mortem examination of his slain leader the next
day, leads us to accept his eye-witness testimony as proved. We are also not
convinced that the delay in disclosing the particulars of the incident to the
police vitiated his testimony in any manner. It is trite that a delay in the
examination of a witness by the investigating agency cannot be a ground to
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 117 ::
& 403/2014 & CRA(V).
condemn the witness and discredit his testimony. The court can rely on such
testimony if it is cogent and credible.34
28.10. The key to appreciating the evidence of PW1 and PW3 is to
look at it holistically and see whether it is accurate in most particulars so as
to inspire the confidence of the court in it. In this connection, it is significant
that both PW1 and PW3 had identified A1 to A7 who have no known political
affiliation and, therefore, were not persons against whom either PW1 or
PW3 could have had any animosity. That apart, PW1 had also identified A1
Anoop, A4 Rajeesh and A7 Shinoj at the TI parade conducted under the
supervision of the Magistrate. Both of them clearly and consistently deposed
about the manner in which each of the accused attacked the deceased, the
nature of the weapons used and the parts of the body of the deceased
whereupon the injuries were inflicted by the accused. They also identified
A1 to A7, as also the Innova car, in court. The testimony of PW1 and PW3 is
undoubtedly of sterling quality.
28.11. The quality of the evidence that would qualify as "sterling" has
been expatiated in Rai Sandeep35 as follows:
"The sterling witness should be of a very high quality and calibre whose
version should, therefore, be unassailable. The court considering the version
34 Sidharth Vashisht @ Manu Sharma v. State (NCT of Delhi) - [AIR 2010 SC 2352]
35 Rai Sandeep v. State (NCT of Delhi) - [(2012) 8 SCC 21]; followed in Naresh v. State of Haryana - [(2023) 10 SCC 134]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 118 ::
& 403/2014 & CRA(V).
of such witness should be in a position to accept it for its face value without
any hesitation. To test the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more relevant would be
the consistency of the statement right from the starting point till the end,
namely, at the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent with the case
of the prosecution qua the accused. There should not be any prevarication in
the version of such a witness. The witness should be in a position to
withstand the cross-examination of any length and how so ever strenuous it
may be and under no circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well as the sequence of it.
Such a version should have co-relation with each and every one of other
supporting material such as the recoveries made, the weapons used, the
manner of offence committed, the scientific evidence and the expert opinion.
The said version should consistently match with the version of every other
witness. It can even be stated that it should be akin to the test applied in the
case of circumstantial evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of the offence alleged
against him. Only if the version of such a witness qualifies the above test as
well as all other such similar tests to be applied can it be held that such a
witness can be called a 'sterling witness' whose version can be accepted by
the court without any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said witness on the core
spectrum of the crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects should match the
said version in material particulars in order to enable the court trying the
offence to rely on the core version to seive the other supporting materials for
holding the offender guilty of the charge alleged."
28.12. The above test has been consistently followed by our courts in
identifying sterling witnesses in criminal trials. In our view, the testimony of
PW1 Praseeth and PW3 Maneesh Kumar satisfy the above test since their
version is consistent with the supporting material such as recoveries made
of the Innova vehicle, the swords and the findings in the DNA and forensic
analysis. Although it is a fact that PW3 gave his statement to the police only
four days after the incident, he has given a valid explanation for the delay
and, at any rate, his version was consistent with the version of PWI as
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 119 ::
& 403/2014 & CRA(V).
regards the manner in which the offence was perpetrated. Further, merely
because his political affiliation was opposed to that of the accused, his
testimony could not be rejected as was done by the trial court. The court
ought to have appreciated that in a case of political murder, it was inevitable
that the witnesses who volunteered to give evidence would likely have
affiliation with the political party to which the victim belonged. At any rate,
the political affiliation of the witness alone could not have weighed with the
court while appreciating his evidence; it should have viewed the evidence
holistically to see whether it was truthful.
Circumstantial Evidence against A1 to A7:
29. In this section of the judgment, we choose to analyse the
circumstantial evidence against A1 to A7 alone. The circumstantial evidence
against the other accused in relation to the offences alleged against them,
such as aiding and abetting of the crime under Section 302 IPC, harbouring
of the main accused, destruction of the evidence so as to shield the main
accused, etc., is dealt with in the next part of this judgment.
29.1. The circumstantial evidence available against A1 to A7 to prove
their complicity in the offence under Section 302 IPC consists of their
sightings at various locations in connection with the conspiracy hatched to
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 120 ::
& 403/2014 & CRA(V).
murder T.P. Chandrasekharan, the recovery of material objects based on the
statements of other accused and hair and blood samples obtained from some
of them that matched with like samples obtained from the vehicle used for
the crime. The trial court has dealt with this evidence at paragraphs 297 to
390 of the impugned judgment.
29.2. We might, at this stage, refer to the general arguments
advanced before us by the defence counsel while attempting to bring out
contradictions and omissions in the previous statements given by the various
witnesses before the investigating officers. A consideration of the same
requires us to examine the circumstances under which the statement of a
witness in court can be said to be contradictory to or an improvement upon
his earlier statement given to the investigative agency. It is trite that the
previous statement of a witness is not and cannot be treated as substantive
evidence except when falling within the provisions of Section 27 (1) of the
Evidence Act. It can be used only to contradict his deposition before the
court. As noticed in Pakala Narayana Swami36, the provisions of Section 161
Cr.PC strikes a happy via media between the requirement that statements
given to police officers should not be used in evidence and the requirement
that the accused should be able to contradict a witness in the manner
provided by Section 145 of the Evidence Act. Statements given under
36 Pakala Narayana Swami v. King Emperor - [AIR 1939 PC 47]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 121 ::
& 403/2014 & CRA(V).
Section 161 cannot be used for corroboration of prosecution/defence/court
witnesses. Nor can it be used for contradicting a defence or court witness.
There is thus a general bar against the use of the statement subject to the
limited exception in the interest of the accused.
29.3. While prior to the amendment of the Cr.P.C and the insertion of
the Explanation to Section 162, the contradiction established had to be
between what the witness asserted in the witness box and what he stated
before the police officer and not what he said he had stated before a police
officer and what was reduced into writing by the officer, the Explanation
now makes it clear that omissions in the earlier statement can also be
treated as contradictions for the purposes of the Section. That said, it is only
if the statement of the witness on material particulars or vital points differs
from his testimony on oath before the court that it can be urged by the
defence that his testimony is at variance with his earlier statement made
before the IO and therefore cannot be believed because he is making the
statement for the first time at the time of the trial, and that it has to be
viewed as an afterthought. In other words, simply because there is a
variance between the statement made in court and what is stated or omitted
to be stated before the IO, the credibility of the witness cannot be
impeached. The contradiction or omission must be on material particulars or
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 122 ::
& 403/2014 & CRA(V).
vital points, and they have to be proved by examining the IO who recorded
their statements under Section 161 Cr.P.C.37 Every omission cannot take the
place of a contradiction in law and, therefore, be the foundation for doubting
the case of the prosecution. Omissions of a trivial nature or of minor
particulars cannot be cited to discredit a witness.
29.4. Keeping the aforesaid principles in mind while appreciating the
evidence before us in these cases, we note that apart from the eyewitness
testimony of PW1 and PW3 that point to the involvement of A1 to A7 in the
crime committed on 04.05.2012, and which testimony we have found to be
credible, there is oral testimony of few others that implicate A1 to A7.
Witness testimony that implicates A1 to A7:
30. The evidence of PW15 Rajeevan suggests that he had seen A2
Manoj Kumar and A5 Mohammed Shafi by the side of the Innova vehicle KL-
58D-8144 near the Industrial Estate at Koroth Road at about 2100 hrs on
02.05.2012. While he did not know A2 and A5, he recognised A28 Rameesh
and A29 Dipin who were there along with them and who were putting a sack
bundle into the vehicle. PW15 identified A2 and A5 in court and also
deposed that he had seen their pictures on television news channels, and
37 State of Karnataka v. Bhaskar Kushali - [(2004) 7 SCC 487]; Shyamal Ghosh v. State of WB - [(2012) 7 SCC 646]; Sunil Kumar
Sambhudayal Gupta (Dr.) v. State of Maharashtra - [(2010) 13 SCC 657]; Subhash v. State of Haryana - [(2011) 2 SCC 715]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 123 ::
& 403/2014 & CRA(V).
that is how he came to know of their names. He also deposed to having read
in the newspapers about their arrest and about the seizure of the Innova
vehicle. As the investigation officer had recorded his statements on
12.05.2012 and thereafter on 24.06.2012, the trial court found his
deposition to be credible. The defence tries to discredit the witness by
pointing to contradictions/omissions in his previous statement as regards the
presence of moonlight on that day and the time at which he allegedly saw
the accused. We do not see much merit in the defence's contention since the
contradictions/omissions pointed out are trivial and not so material that they
can be relied upon to discredit the witness.
30.1. PW18 Santhosh has testified in court that on 04.05.2012 at
about 16.00 hrs, he had reached the taxi stand in Chokli along with his
friend Ramesan (CW35) in a jeep that was driven by him. They were
apparently going to Kaviyoor in connection with a marriage proposal that
had come for Ramesan. While they were waiting at the taxi stand for the
marriage broker to arrive, about seven persons alighted from an Innova
vehicle in front of their jeep and stood near the jeep. Of the said persons, A3
Kodi Suni, A5 Mohammed Shafi and A31 Pradeepan, who were known to him
for two to three years, came up to them and asked them why they were
there. Apparently, A5 Mohammed Shafi pulled his shirt and threw away his
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 124 ::
& 403/2014 & CRA(V).
mobile phone. In the meanwhile, A3 Kodi Suni and others inspected the rear
portion of the jeep and after ascertaining whether they were from Poyiloor,
asked them to leave the place immediately. They then left the place in the
Innova vehicle KL-58D-8144. PW18 and CW35 thereafter went to the office
of the Circle Inspector of Police, Panoor and preferred Ext.P17 complaint.
Later, PW18 identified A3 Kodi Suni, A5 Mohammed Shafi and A1 Anoop in
court. A1 Anoop was apparently one of the persons who threatened them
that evening.
30.2. The defence argument against relying on this evidence is that
PW18 Santhosh has known affiliation with the RSS, and the general
animosity between the RSS and CPI (M) is well known in the locality. They
also place reliance on the fact that PW18 chose to lodge his complaint at the
office of the CI of Police at Panoor, rather than at the nearby police station at
Chokli, to allege that the lodging of the complaint was a fabricated piece of
evidence and in fact no such complaint was lodged. It was also pointed out
that although the statement of PW18 was recorded on 11.05.2012, Ext.P17
complaint was recovered only on 19.07.2012 under cover of Ext.P539
seizure mahazar, along with Ext.P208 complaint register. Further, CW250,
the ASI, Chokli, who was cited to prove the seizure; CW273, the attester to
the mahazar; and CW242, the Chokli SI, who enquired into Ext.P17
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 125 ::
& 403/2014 & CRA(V).
complaint, were not examined as a witness by the prosecution. The trial
court, however, found that merely because PW18 was affiliated to the RSS,
his testimony did not have to be disbelieved. It also found that it was a fact
that he had given Ext.P17 complaint before the office of the CI of Police at
Panoor for the CI (PW149) deposed that he had forwarded Ext.P17
complaint to the Chokli police station and Ext.P208 petition register of
Chokli police station showed that the complaint had been entered in it. The
contention of the defence that the complaint had been fabricated
subsequently was rejected by the trial court.
30.3. We see no reason to differ from the view taken by the trial
court. Apart from the fact that the political affiliation of the witness did not
have to be a reason to disbelieve his testimony if it was otherwise credible
and worthy of acceptance, we fail to see how the mere fact of non-
examination of CW250, CW273 and CW242 can affect the oral testimony of
PW18 when PW149 Dominic, CI of Police, Panoor had clearly spoken on the
enquiry made into Ext.P17 complaint and the action taken thereon.
30.4. The evidence of PW17 Subodh, that was also found credible by
the trial court, is to the effect that on 04.05.2012, at about 2100 hrs, when
he was returning on his motorcycle from a shop near Mahe railway station,
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 126 ::
& 403/2014 & CRA(V).
along with his friend Sreejith Kumar (CW37), he saw an Innova vehicle
parked near the old age home at Koroth Road and six or seven persons
standing around the car. He recognised Dilshad A20 and Fasalu A21 from
among them as he knew them from before. They were talking to the other
persons while three or four of them were taking what looked like swords
into the vehicle. Among the strangers he saw that night, one was a fat, bald
person, and another was a fat dark-complexioned person. He later identified
those persons in court as A4 T.K. Rajeesh and A6 Sijith. He also deposed to
seeing something written in Arabic language on the front and rear glasses of
the Innova vehicle which he later identified at the Edacherry police station
as also in court. Although the defence tries to discredit his testimony by
alleging that he was an RMP worker/follower and pointing to omissions in
his previous statement as regards the finer details of his trip to the shop
near Mahe railway station, we do not see the said omissions or his alleged
affiliation to the RMP as material that would lead us to disbelieve his
evidence.
Forensic/DNA Evidence against A6:
31. As one of the main accused persons implicated through PW17's
testimony is A6 Sijith, we might, at this juncture, also deal with the
forensic/medical evidence available against him. After the Innova vehicle
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 127 ::
& 403/2014 & CRA(V).
was discovered on 05.04.2012, experts from the forensic department
inspected the vehicle and collected hair and blood samples found
thereon/therein. The said samples were packed and handed over to the
Investigation Officer PW165 at 4 pm on the same day. It was received in the
court on 08.05.2012. Thereafter, the IO prepared the forwarding note on
14.05.2012, and the samples in court were sent along with the forwarding
note of the IO and other samples received by the court on 23.05.2012, under
cover of Ext.P466, to the Forensic Sciences Laboratory (FSL). The samples
were received at the FSL on 26.05.2012, and the ones intended for DNA
testing were sent to the DNA division on 20.07.2012. The test report dated
14.08.2012 is produced as Ext.P571. At p.28 of Ext.P571 test report, the
result of the DNA profiling of the sample of blood obtained from inside the
vehicle is stated, and it shows that it was a mixture of blood belonging to T.P.
Chandrasekharan and A6 Sijith.
31.1. It deserves to be mentioned that A6 Sijith was arrested on
22.05.2012 (Ext.P458 arrest memo; Ext.P459 Inspection memo), and his
blood and hair samples were taken on the same day by PW107 Dr. Shalina
Padman as evidenced by Ext.P112 wound certificate. It was then sent
directly to the FSL by the IO on 13.06.2012 (Ext.P487). However, the FSL
returned the sealed sample to the IO on the same date, pointing out that the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 128 ::
& 403/2014 & CRA(V).
parcel did not contain a forwarding note with instructions as regards the
nature of testing required. The IO, therefore, forwarded the sealed sample
along with a forwarding note to the court (Ext.P489) on the very next day,
i.e. 14.06.2012, after preparing Ext.P168 maha zar. The sample was
thereafter sent from court on 19.06.2012, and the testing was done at the
DNA department of the FSL, which resulted in Ext.P571 test report dated
14.08.2012. Although the defence tried to suggest that the irregularity
occasioned by the IO in sending the blood sample of A6 Sijith directly to the
FSL without routing it through the court vitiated the testing of the sample,
we are not impressed with the said argument. It is not in dispute that the
blood sample from the Innova vehicle, that contained mixed blood, was sent
to the court earlier in point of time (08.05.2012) and before the arrest of A6
Sijith on 22.05.2012. The testing of A6 Sijith's blood against the said mixed
blood obtained from the Innova vehicle was much thereafter, and the test
result showed that the mixture of blood was that of the deceased T.P.
Chandrasekharan and A6 Sijith. Thus, any irregularity/delay occasioned in
sending A5's blood sample to the FSL was inconsequential since ultimately
the sample matched with the sample of mixed blood found in the Innova
vehicle.
31.2. It is also relevant that PW107 Dr. Shalina Padman has given
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 129 ::
& 403/2014 & CRA(V).
evidence that on 23.05.2012 at 14.15 hrs, she had examined A6 Sijith and
that, on examination, she found a healing wound on his right hand near the
base of the thumb. There were markings of four sutures and two of them had
been removed by the patient himself. She opined that the age of the wound
was more than five days. Similarly, PW105 Dr. Cyriac Job, before whom A6
Sijith was produced for examination, also noted the presence of a V-shaped
healing wound on his right hand at the base of the thumb. He also deposed
that A6 Sijith had told him that the injury was caused on May 4 th by the
impact of the sword of another person while entering the vehicle. The trial
court found that this statement of A6 Sijith to the doctor virtually amounted
to an admission and not a confession hit by Section 26 of the Indian
Evidence Act. Reliance was placed on the decision of the Privy Council in
Narayana Swami38 and the decisions of the Supreme Court in Kanda
Padayachi39 and Ammini40 to hold so. We find no reason to interfere with the
trial court's findings. Further, as there are no vitiating circumstances to
doubt the doctor's evidence, we are of the view that this evidence
unambiguously points to the presence of A6 Sijith in the Innova vehicle at
the crime scene on 04.05.2012.
38 Pakala Narayana Swami v. King Emperor - [AIR 1939 PC 47]
39 Kanda Padayachi v. State of Tamil Nadu - [AIR 1972 SC 66]
40 Ammini & Ors. v. State of Kerala - [AIR 1998 SC 260]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 130 ::
& 403/2014 & CRA(V).
Recovery of the Innova vehicle:
32. With specific reference to the Innova vehicle, we find that while
the prosecution case is that PW1 Praseeth and CW2 Ramachandran had
accompanied the IO PW165 Jossy Cherian to the place Punathilmukku where
the Innova vehicle was found abandoned on 05.05.2012 and had helped to
identify the vehicle as the one that was used for the crime the previous
night, the defence points to the non-mentioning of the fact that PW1 and
CW2 were eye-witnesses to the incident in Ext.P1 seizure mahazar drawn up
that day to suggest that PW1 and CW2 did not actually witness the incident
the previous day. We note, however, that PW1 and CW2 had signed the
seizure mahazar as witnesses, and hence their presence at the time of the
seizure of the vehicle cannot be doubted. Besides, merely because they were
not described in the seizure mahazar as eyewitnesses to the previous night's
incident is no reason to disbelieve either the testimony of PW1 or the
testimony of PW165 or the drawing up of Ext.P1 seizure mahazar itself. It is
important to note that PW1 had deposed that at the time of the incident, the
Innova vehicle bore Registration No.KL-18A-5964 and yet when he identified
the vehicle the next day, it bore the Registration No. KL-58D-8144. He also
identified the vehicle before the court later. Ext.P573 FSL report also proves
that the adhesive substance found on the reverse side of the false number
plates recovered under cover of Ext.P63 mahazar, matched with the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 131 ::
& 403/2014 & CRA(V).
substance found on the real number plates of the Innova car at the time of
its seizure on 05.05.2012. Therefore, PW1's identification of the Innova
vehicle as the one that he saw the previous night with a different
Registration number stands corroborated by the said piece of evidence. The
use of a fake number plate on the Innova vehicle also stands proved by this
evidence.
32.1. The use of the Innova vehicle for the commission of the crime is
proved yet again by Ext.P573 FSL report that shows that the paint flakes
recovered from the scene of the crime and from the front tyre of the
deceased T.P. Chandrasekharan's motorcycle as per Ext.P20 mahazar,
matched with the paint flakes taken from the Innova vehicle after its
recovery and seizure. The damages to the Innova vehicle indicated by
PW103 Salim Vijaykumar, the Motor Vehicles Inspector attached to the RTO
Office Vatakara, in Ext.P104 certificate issued by him also point to the
involvement of the Innova vehicle in the incident of the previous night.
Further, as already noticed while analysing the evidence against A6 Sijith,
page 28 of Ext.P571 test report contains the result of the DNA profiling of
the sample of blood collected from inside the vehicle on 05.05.2012 and it
shows that it was a mixture of blood belonging to T.P. Chandrasekharan and
A6 Sijith. In our view, the above evidence would suffice to unambiguously
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 132 ::
& 403/2014 & CRA(V).
prove that it was the Innova vehicle that was seized on 05.05.2012 that was
involved in the incident of the previous day.
32.2. Apart from the above, it is also significant that in Ext.P572 FSL
report, some of the hair samples collected from the Innova vehicle were
found to be similar to the hair samples taken from A6 and A18. Since there
was DNA evidence to connect A6 with the incident on 04.05.2012, the trial
court relied on the Ext.P572 report only to find A18 guilty of abetting the
commission of the offence under Section 302 IPC, as seen from paras 561 to
584 of the impugned judgment.
Recovery of the Swords:
33. The recovery of MO1 series swords was made on 15.05.2012
based on the disclosure statement of A31 Pradeepan. A31 was arrested by
PW164 Dy.SP Shoukathali and he deposed that A31 had stated that if he
were taken, he would show the place where the swords were first kept and
the well in which the swords were subsequently hidden. Accordingly, A31
was taken to a place near Vasudeva Service Centre in Chokli, and he pointed
to a well behind the Service Centre. With the help of PW33 Rajesh, the
swords were taken out of the well, and PW164 then seized the same under
the cover of Ext.P28 mahazar. PW34 Sasidharan Pillai, a Junior
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 133 ::
& 403/2014 & CRA(V).
Superintendent in the Taluk Office, Thalassery, was a signatory to the
mahazar, and he identified his signature in Ext.P28 mahazar. Although the
defence would urge, as it did before the trial court, that Ext.P28 mahazar
was not attested to by any persons in the locality, we do not see any legal
infirmity in the manner in which the mahazar was drawn up. There is
nothing on record that would persuade us to disbelieve the testimony of
PW164, PW33 or PW34, and hence, the recovery of MO1 series swords
stands proved. In any event, as rightly found by the trial court by relying on
Sunil,41 when the recovery of an object is made pursuant to the information
given by the accused, there is no obligation on the investigating officer to
call independent witnesses from the locality to witness the recovery or to
attest the recovery mahazar. We also do not find any merit in the submission
of the defence that there was an inordinate delay in producing the seized
articles before the Magistrate. The evidence on record shows that the seized
swords were produced without any delay along with the Ext.P371 property
list before the JFMC, Vatakara, at 1.30 pm on 16.05.2012.
Medical evidence connecting the swords with the injury on the victim:
34. In Ext.P179 post-mortem report prepared by PW136 Dr. Sujith
Sreenivas, the cause of death is attributed to "multiple incised chop injuries
sustained to the head and face cutting the skull and brain, transecting the
41 State Govt. of NCT of Delhi v. Sunil - [2001 Cri.LJ 504]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 134 ::
& 403/2014 & CRA(V).
frontal lobe". In his deposition before the court, PW136 stated that he had
examined the MO1 series of swords at the FSL pursuant to the order of the
JFMC and that Injuries 1 to 7 and 10 to 14 noted in Ext.P179 certificate
could be caused by the sharp edge of MO1 series swords. He further
deposed that the Injuries noted as 8 and 9 in Ext.P179 certificate and the
linear contusion of Injury no.4 could be caused by the non-cutting blunt edge
of the blade of the said weapons. He further deposed that Injury No's. 1 to 3,
5 to 7 resulting in Injury No.14 have led to the death of the victim; that
those injuries are likely to cause death in the ordinary course of nature.
Although the defence would point out that the possibility that some of the
injuries were caused by a stick or other blunt weapon renders the medical
opinion inconsistent with the ocular evidence of PW1 and PW3, we find
ourselves in agreement with the trial court when it found that in view of the
definite opinion of PW136 that those injuries could be caused by the non-
cutting blunt edge of the blade of MO1 series swords, the medical evidence
did not completely rule out the possibility of the injuries being inflicted in
the manner stated by PW1 and PW3. As rightly found by the trial court,
relying on Solanki Chimanbhai,42 unless the medical evidence goes so far
that it completely rules out all possibilities whatsoever of the injuries taking
place in the manner alleged by eyewitnesses, the testimony of the eye-
witnesses cannot be discarded on the ground of alleged inconsistency with
42 Solanki Chimanbhai Ukabhai v. State of Gujarat - [AIR 1983 SC 484]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 135 ::
& 403/2014 & CRA(V).
the medical evidence.
Forensic Evidence against A2 and A3 as regards use of Explosives:
35. PW1 and PW3 had deposed that when A2 got out of the Innova
vehicle at the time of the incident, he had a round object in his hand and
that before leaving the place, A3 got the round object from A2 and threw it
on the road, and it exploded. The remnants of the explosion were collected
and sealed by PW132 E.K. Rajan, Assistant Sub-Inspector of Police in charge
of the bomb squad, when he inspected the crime scene on 05.05.2012. He
deposed to having handed over the sealed package to PW165 Jossy Cherian,
the IO. PW142 Remya, the Scientific Assistant had also collected and sealed
samples of the remnants of the explosion and handed over the same to
PW165. The said samples collected by PW132 and PW142 were then sent to
the FSL for analysis, and in Ext.P553 report, the said samples were found to
contain Potassium Chlorate, Sulphur and Aluminium. These being explosive
substances under the Explosives Substances Act, 1908, and there having
been no explanation offered by A2 or A3 as regards the possession and use
by them of those substances for any lawful purpose, the trial court found
that the charge against the said accused under the Explosive Substances
Act, 1908 stood proved. In the appeals before us, nothing substantial has
been brought to our notice that would persuade us to take a different view
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 136 ::
& 403/2014 & CRA(V).
from that taken by the trial court on this issue. We, therefore, concur with
the finding of the trial court on this issue.
Our findings on the Incident:
36. In the light of the discussions above under this section, we are of
the view that the eyewitness testimony of PW1 and PW3 stands corroborated
by the circumstantial evidence discussed above and affords the basis for
entering a finding of guilt under Section 302 of the IPC against A1 to A7.
Further, in view inter alia of our findings against A1 to A7 on the issue of
conspiracy and their guilt established thereunder, we find ourselves in
agreement with the finding of the trial court that the unlawful assembly of
A1 to A7, armed with deadly weapons, was with the common object of
committing the murder of T.P. Chandrasekharan and hence their guilt
variously under Sections 143, 147, 148 and 302 read with 149 of IPC as well
Sections 3 and 5 of the Explosive Substances Act, 1908, as charged against
them, stands established.
Abetment and Harbouring
37. In this section, we deal with the evidence available against those
accused, other than A1 to A7, against whom charges have been mounted
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 137 ::
& 403/2014 & CRA(V).
alleging abetment to murder, harbouring of the main accused, concealing
the design to commit the offence, destruction of evidence and forgery. Only
two of the accused, viz. A18 Rafeek and A31 Pradeepan were convicted by
the trial court for the offences under Section 302 read with 109 of the IPC
and under Section 201 of the IPC, respectively. The said accused have
preferred appeals challenging their conviction and sentence
(Crl.A.Nos.174/2014 and 176/2014). As regards the other accused (A16,
A17, A19, A20, A21, A22, A25, A27, A28, A29, A30, A33, A36, A37, A39,
A41, A42, A48, A49, A50 & A70) who were acquitted by the trial court under
Section 235 of the Cr.P.C, the State has preferred an appeal
(Crl.A.No.403/2014) challenging their acquittal. The widow of T.P.
Chandrasekharan has also preferred an appeal (Crl.A (V) 571/2015)
challenging their acquittal.
38. For the sake of convenience, we propose to deal with the appeals
preferred by A18 and A31 first.
Crl.A.No.174/2014 filed by A18 Rafeek:
39. The trial court found A18 guilty of the offence under Section 302
read with 109 of the IPC. It is the case of the learned counsel for the
appellant/convicted accused that since there was no evidence suggesting
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 138 ::
& 403/2014 & CRA(V).
that A18 had any knowledge of the use of the vehicle in connection with the
murder of T.P. Chandrasekharan or the conspiracy behind it, the mere
existence of some evidence that showed that the Innova vehicle was
entrusted to him by PW8 could not, without anything more, have formed the
basis of the finding of guilt under Section 302 read with 109 of the IPC. The
trial court at paras 561 to 584 of the impugned judgment found that the
entrustment of the Innova vehicle by PW7 to A18, through PW8 stood proved
and further that in the absence of any explanation forthcoming from A18 as
to how the vehicle reached the hands of A1 Anoop, it had to be inferred that
A18 had given the vehicle to A1 with the knowledge that it was going to be
used for the murder of T.P. Chandrasekharan. The trial court also relied on
corroborative evidence in the form of CDR data that showed that there were
frequent calls between A18 and A1/A3 during the period prior to the murder
of T.P. Chandrasekharan to find A18 guilty of the offence under Section 302
read with 109 of the IPC.
39.1. The learned counsel for A18 would argue that in view of the use
of phones by A1 and A3 not being proved, the said corroborative evidence
could not be relied upon to sustain the finding of guilt against A18. While we
find some force in the said argument, inasmuch as we too have excluded the
CDR data pertaining to the phones used by A1/A3 by finding the said
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 139 ::
& 403/2014 & CRA(V).
evidence to be inadmissible, we are nevertheless inclined to agree with the
finding of the trial court on a different line of reasoning. We are of the view
that the entrustment of the Innova vehicle to A18 having been proved and
A18 not having given any explanation as to how the vehicle entrusted to him
came into the possession of A1, the ingredients to support a finding of
conspiracy stood established against A18. However, in the absence of a
specific charge of conspiracy against him, he cannot be found guilty under
Section 120B of the IPC. That, however, does not prevent us from
considering the ingredients of conspiracy established against him for the
purposes of finding him guilty under Section 109 of the IPC since the offence
defined in Section 107 of the IPC is deemed committed if "a person engages
with one or more other person or persons in any conspiracy for the doing of
that thing, if an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing". We are, therefore, in
complete agreement with the finding of the trial court that holds A18 guilty
of the offence under Section 302 read with 109 of the IPC. However, we find
that the said evidence, without anything more, cannot be used to find that
A18 had voluntarily concealed the existence of a design to commit murder of
T.P. Chandrasekharan to establish a charge under Section 118 IPC. We also
find no reason to interfere with the finding of the trial court that acquits A18
for the offence under under Sections 465 and 471 of the IPC.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 140 ::
& 403/2014 & CRA(V).
Crl.A.No.179/2014 filed by A31 Pradeepan:
40. As regards A31 Pradeepan, the charges against him were
threefold (Charges 49,50 & 51) and pertained to the offences under Sections
201 and 212 of the IPC. The charge under Section 201 of the IPC was in
respect of his alleged action of hiding MO1 series swords in a well and in
respect of his alleged action of taking the injured A6 to a hospital in Chokli
and giving false information at the hospital as regards the cause of the
injury. The latter part of the said action was also the basis of the charge
under Section 212 of the IPC. The trial court found him guilty on one count
under Section 201 of the IPC in connection with the concealment of the
swords in the well. He was acquitted of the other two charges, under
Sections 201 and 212 of the IPC. With regard to the recovery of the swords,
the basis of the findings of the trial court that found the recovery to be
proved has already been discussed in an earlier part of this judgment while
dealing with the circumstantial evidence against A1 to A7 and hence we
refrain from re-iterating those findings here. We have also found that there
is clear evidence to prove that MO1 series swords were used for the
commission of the offence.
40.1. The trial court was of the view that apart from his knowledge of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 141 ::
& 403/2014 & CRA(V).
the place of concealment of the swords, which could be inferred from the
recovery in terms of Section 27 of the Indian Evidence Act, the entrustment
of the swords to him by anyone among A1 to A7, as also his act of
concealment of the swords with the intention of screening them from legal
punishment, could be inferred. Before us, the learned counsel for A31 would
argue that while his knowledge as regards the place of concealment of the
swords could be a matter of legal inference, the entrustment of the swords
to him by any of the accused and his possession and concealment of the
same could not have been inferred by the trial court based on the evidence
that it considered.
40.2. While there is some force in the argument of the learned
counsel as regards insufficiency of the evidence considered by the trial court
to support a finding of entrustment of the swords to him by any of the
accused and his possession and concealment of the same, we find that there
was other evidence in the form of the testimony of PW18 Santhosh, that was
believed by the trial court, and that proved the presence of A31 along with
A3 and A5 at Chokli taxi stand. In our view, this evidence can be relied upon
to justify the view taken by the trial court. The presence of A31, along with
the other accused (A1, A3, A5 & A7) and the Innova vehicle at about 4 pm on
the day of the incident (04.05.2012) is sufficient in our view to infer his
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 142 ::
& 403/2014 & CRA(V).
knowledge about the use of the same swords for the commission of the
murder of T.P. Chandrasekharan, and his concealment of the same,
especially when there was clear evidence to show that he had knowledge of
the place of concealment of the said swords.
40.3. As regards the other charge under Section 201 of the IPC and
the charge under Section 212 of the IPC, we find that although there is some
evidence to show that A6 Sijith was treated at the CMC Hospital Chokli for
an injury that he had sustained in the incident, there is no evidence that
would show that it was A31 who took A6 to the hospital or gave misleading
information to the hospital. We, therefore, concur with the findings of the
trial court acquitting A31 of the said charges.
Crl.A.Nos.403/2014 filed by the State & Crl.A.(V). No.571/2015 filed by the
Victim:
41. As regards the other accused (A16, A17, A19, A20, A21, A22,
A25, A27, A28, A29, A30, A33, A36, A37, A39, A41, A42, A48, A49, A50 &
A70) whose acquittal by the trial court under Section 235 of the Cr.PC has
been impugned by the State and the victim before us; we find on an
application of the principles that would govern us while considering an
appeal against an acquittal, that there is nothing substantial brought to our
notice by the learned Special Prosecutor that would lead us to find that the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 143 ::
& 403/2014 & CRA(V).
views of the trial court were perverse in the legal sense of the term so as to
warrant any reversal of the same. As has already been noticed in an earlier
portion of this judgment, even in a situation where we have some doubt with
regard to the manner in which evidence was appreciated by the trial court
or we entertain an alternate view with regard to the guilt of the accused, we
have to see whether the trial court's view was a possible view. This is more
so because we cannot ignore the fact that the trial court would have had the
benefit of observing the demeanour of the witnesses before it, which often
provides clues to the weight of their testimony. 43 It is only when the finding
of the trial court is demonstrated to be 'clearly wrong', and not merely when
it is 'not correct', that we can interfere with the said finding. In the case of
the above accused, we do not find any such material as would persuade us to
take a different view from that of the trial court.
In Conclusion:
1. We confirm the judgment of the trial court and sustain the conviction
of A1 to A8, A11, A13, A18 and A31 (A1 - Anoop, A2 - Manoj @ Kirmani
Manoj, A3 - N.K.Sunil Kumar @ Kodi Suni, A4 - T.K.Rajeesh, A5 -
K.K.Muhammed Shafi, A6 - S.Sijith, A7 - K.Shinoj, A8 - K.C.Ramachandran,
A11 - Manojan, A13 - Kunhanandan, [A18 - P.V. Rafeek & A31 - Pradeepan
M.K]44) in respect of the charges proved against them. We note that A13
expired during the pendency of these appeals, and his legal representative
43 H.D.Sundara & Ors v. State of Karnataka - [(2023) 9 SCC 581]
44 Corrections carried out as per order dated 21.2.2024 in Crl.A.Nos.172 & 179 of 2014
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 144 ::
& 403/2014 & CRA(V).
was impleaded.
2. Additionally, we convict A1 to A5 and A7 under Section 120B of the
IPC as well.
3. We set aside the acquittal of A10 [K.K.Krishnan] and A12 [Geothi
Babu] and convict them under Section 120B read with 302 of the IPC.
4. We confirm the acquittal of the other accused.
We direct the Jail Superintendent, Kannur and Tavanur to produce A1
to A8, A11 & [A18]45 in person before this Court at 10.15 am on 26.02.2024
for hearing A1 to A5 & A7 on the sentence to be imposed under Section
120B IPC and all of them (A1 to A8, A11 & [A18] 46) on the plea of
enhancement of sentence and compensation.
The Registry is directed to issue non-bailable warrants for the
immediate arrest and production of A10 and A12 before the trial court. On
such production, or in the event of A10 and A12 voluntarily surrendering
before the trial court, it shall commit them to prison with a direction to the
Superintendent of the prison to produce them before this Court at 10.15 am
on 26.02.2024 for hearing on sentence.
45 Ibid
46 Ibid
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 145 ::
& 403/2014 & CRA(V).
The Registry shall also call for the following reports in respect of A1
to 8, A11 & [A18]47, for effectively considering the plea of enhancement of
their sentence.
1. Report from the Probation Officers concerned.
2. Report from the Jail Superintendent, Kannur in respect of
A1, A2, A4 to A8, A11 & [A18] 48 and from the Jail Superintendent,
Thrissur and Tavanur in respect of A3 as regards the nature of the
work done by the accused while in jail.
3. A psychological and psychiatric evaluation report in respect
of A1 to A8, A11 & [A18] 49 from the Government Medical
College/Government Hospital.
The reports shall reach this Court on or before 26.02.2024.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
prp/
47 Ibid
48 Ibid
49 Ibid
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 146 ::
& 403/2014 & CRA(V).
Sentencing:
42. In our judgment dated 19.02.2024 in Crl.A.No.172/2014 and
connected cases, apart from sustaining the conviction of A1 to A8, A11, A13,
A18 and A31, we had additionally convicted A1 to A5 and A7 under Section
120B of the IPC as well. Similarly, we had also set aside the acquittal of A10
and A12 and convicted them under Section 120B read with 302 of the IPC.
As the above convictions came about in the appellate judgment passed by
us, we were required in terms of Section 235 (2) of the Cr.PC to hear the
above accused on the question of sentence. Accordingly, we posted the
appeals to 26.02.2024 to hear A1 to A8, A11 and A18 on the sentence to be
passed on A1 to A5 & A7 under Section 120B of the IPC and all of them (A1
to A8, A11 & A18) on the plea of enhancement of sentence and
compensation. We also had to hear A10 and A12 on the sentence to be
passed on them under Section 120B, read with 302 of the IPC.
43. Simultaneous with the above, in respect of A1 to A8, A11 and
A18, we sought a report from the Probation Officers concerned, a report
from the Jail administration as regards the nature of work done by the
accused while in jail, and a psychological and psychiatric evaluation report
from the Government Medical College/Government Hospital so as to
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 147 ::
& 403/2014 & CRA(V).
consider the individualised sentences that can appropriately be imposed on
the respective accused.
44. A1 to A7, A10, A11 and A18 were produced in person and A12
was produced through video conferencing before us on 26.02.2024 and
27.02.2024. A8, who is on parole was also present. We have heard them as
well as their counsel. We have also perused the reports furnished in relation
to all but two (A10 & A12) of them by the respective Probation Officers, Jail
administration and Psychiatrists.
45. We have heard A1 to A8, A10 to A12 and A18 on the question of
sentence. All of them submitted that they are innocent, they have their
families depending on them, they suffer from various kind of illnesses and
leniency may be shown to them. The learned Special Public Prosecutor and
the learned counsel for the victim submitted that considering the
seriousness of the crime and the gruesome manner in which it was
committed, it is a fit case that falls under the category of 'rarest of rare
cases' justifying the imposition of the graver of the two alternate sentence
permissible under Section 302 of IPC. No other punishment would be
adequate, they added. Reliance was placed on Madan v. State of Uttar
Pradesh - [(2023) KHC 6986 (SC)]. The learned counsel for the victim
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 148 ::
& 403/2014 & CRA(V).
additionally submitted that the compensation awarded by the trial court is
not commensurate with the injury suffered by the victim. Per contra, the
learned counsel for the convicted accused submitted that under any
circumstances the case cannot be one that belongs to 'rarest of rare cases'
where the court would be justified in imposing death penalty. Reliance was
placed on Dalip Singh v. State of Punjab - [AIR 1953 SC 364]; Bed Raj v.
State of U.P. - [AIR 1955 SC 778]; Shiv Govind v. State of M.P. - [(1972) 3
SCC 399]; Jashubha Bharatsinh Gohil and Others v. State of Gujarat -
[(1994) 4 SCC 353]; Sham v. The State of Maharashtra - [AIR 2012 SC 301];
Manoj and Others v. State of Madhya Pradesh - [(2023) 2 SCC 353].
46. As per Section 235(2) of the Cr.PC, on being convicted and not
being released on probation or after admonition in terms of Section 360
Cr.PC, the accused has to be heard by the Judge concerned on the question
of sentence and then, the sentence has to be passed according to law.
Moreover, as per Section 354 (3) Cr.PC. if the punishment is for an offence
punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a particular term of years, the judgment has to state the
reasons for the sentence awarded; and, in the case of death sentence, the
judgment has to state 'special reasons' therefor.
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 149 ::
& 403/2014 & CRA(V).
47. In matters of sentencing, especially when called upon to
consider sentences of death, imprisonment for life or imprisonment for a
particular term of years, we are to be guided by the principles stated in
Bachan Singh50 and later cases, which can be enumerated as follows:
(i) The general legislative policy that underlines the structure of our
criminal law, principally contained in the Indian Penal Code and the
Criminal Procedure Code, is to define an offence with sufficient clarity
and to prescribe only the maximum punishment therefor, and to allow a
very wide discretion to the judge in the matter of fixing the degree of
punishment.
(ii) No exhaustive enumeration of aggravating or mitigating
circumstances, which should be considered when sentencing an
offender, is possible.
(iii) The impossibility of laying down standards is at the very core of
the criminal law as administered in India, which invests the judges with
very wide discretion in the matter of fixing the degree of punishment.
(iv) The discretion in the matter of sentencing is to be exercised by
the judge judicially after balancing all the aggravating and mitigating
circumstances of the crime. This is because the exercise of judicial
discretion on well-recognised principles is, in the final analysis, the
safest possible safeguard for the accused.
50 Bachan Singh v. State of Punjab - [(1980) 2 SCC 684; followed in Machhi Singh & Ors. v. State of Punjab - [(1983) 3 SCC 470];
and more recently in Manoj Pratap Singh v. State of Rajasthan - [(2022) 9 SCC 81]; Manoj & Ors. v. State of M.P. - [(2023) 2 SCC
353; Madan v. State of U.P. - [(2023) KHC 6986 (SC)]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 150 ::
& 403/2014 & CRA(V).
(v) While considering the question of sentence to be imposed for the
offence of murder under Section 302 of the IPC, the court must have
regard to every relevant circumstance relating to the crime as well as
the criminal. If the court finds, but not otherwise, that the offence is of
an exceptionally depraved and heinous character and constitutes, on
account of its design and manner of its execution, a source of grave
danger to the society at large, the court may impose the death
sentence.
(vi) Section 354 (3) of the Cr.PC now clarifies that the extreme
penalty should be imposed only in extreme cases where the exceptional
reasons are founded on the exceptionally grave circumstances of the
particular case relating to the crime as well as the criminal.
48. In Shankar Kisanrao Khade51 the Supreme Court held that
instances such as hired killings, as also where the crime is committed so
brutally that it pricks or shocks not only the judicial conscience but even the
conscience of the society, can be seen as aggravating circumstances for the
purposes of punishment. It will be recalled that in our judgment dated
19.02.2024, we have found A1 to A7 to be hired assassins who, along with
A8, A10, A11, A12 and A13, conspired to commit the murder of T.P.
Chandrasekharan in a most brutal manner. The gravity of the offence
committed by them does not call for extending any leniency to them in the
matter of punishment, more so when the offence is such as to amount to an
51 Shankar Kisanrao Khade v. State of Maharashtra - [(2013) 5 SCC 546]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 151 ::
& 403/2014 & CRA(V).
assault on democracy itself. That said, we cannot be oblivious to the fact that
in Rajendra Pralhadrao Wasnik 52, it was held that the probability (not
possibility or improbability or impossibility) that a convict can be reformed
and rehabilitated in society must be seriously and earnestly considered by
the courts before awarding the death sentence. It is for the prosecution and
the courts to determine whether a criminal, notwithstanding his crime, can
be reformed and rehabilitated. Towards that end, we perused the reports
obtained in relation to the aforementioned accused.
49. The psychological and psychiatric evaluation report in relation
to all the accused indicates that a preliminary evaluation does not reveal the
presence of any significant active psychopathology at present. It also
clarifies that a detailed evaluation with a reliable informant for an
observation period of not less than 10-14 days is recommended to establish
the presence or absence of mental illness. The report regarding the work
done by A1, A2, A4 to A8, A11 and A18 in jail submitted by the Jail
Superintendent, Kannur, shows that all of them performed their work in a
satisfactory manner. Their behaviour in jail is reported to be satisfactory. So
far as A3 is concerned, the Jail Superintendent, Tavanur, reported that he
was shifted from High-Security Prison, Viyyur, on 09.11.2023 on disciplinary
grounds and that he has not been allotted any work at Tavanur prison. The
52 Rajendra Pralhadrao Wasnik v. State of Maharashtra - [(2019) 12 SCC 495]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 152 ::
& 403/2014 & CRA(V).
reports of the Probation Officer in respect of A1 to A8, A11 and A18 reveal
that although they hail from socially and economically backward families,
they are currently being taken care of and none of their families are entirely
dependent on them for their sustenance. The report in respect of A18 shows
that his wife is doing tailoring work and earning a livelihood for her family,
which consists of three children. It is also reported that except A2 and A7,
all other accused are involved in criminal cases. This leads us to infer that
there are no serious mitigating factors other than the probability of their
reformation that need to be taken into account while determining the
sentence to be imposed on the various accused. In this connection it is
significant that the prosecution has not produced any material to suggest
that the reformation of the accused is improbable. Neither do we find
anything to suggest so in the reports called for by us.
50. What, then, would be the appropriate punishment that we can
impose on the convicted accused in these cases ? While the crime would
certainly rank as a heinous one committed against the victim T.P.
Chandrasekharan, it is also one that threatens to undermine the democratic
principles by which the people of this country, as a whole, have chosen to be
governed. Crimes that have the effect of inducing fear in the people to the
point where they are prevented from freely exercising their constitutionally
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 153 ::
& 403/2014 & CRA(V).
guaranteed freedoms of speech and expression ought to be dealt with firmly,
for they cannot be tolerated in a society that is governed by the rule of law.
While there is, undoubtedly, an element of public interest that is sought to
be safeguarded through the prescription of a punishment for a crime, any
crime that is committed with a view to silence dissent, which is an integral
facet of the right to privacy under Article 21 of our Constitution, has to be
seen as a crime against the people at large in a society that has chosen to be
governed by democratic principles. On the other hand, we are equally
obligated under our Constitution to recognise the right to life and personal
liberty guaranteed to our people, which expression takes within its fold even
a convicted criminal. The daunting task before this Court is to strike a
balance between the aforesaid conflicting interests.
51. In our jurisprudence, the death sentence is reserved only for
those cases that qualify as the "rarest of the rare". While the facts and
circumstances proved against the accused before us clearly point to their
abhorrent and despicable conduct, we would not go so far as to categorise it
as the "rarest of the rare" so as to impose the death sentence on them.
Taking note of the submissions made by them and their counsel during the
hearing on sentence, reports obtained in relation to them, and the possibility
of their reformation, we feel that the imposition of stricter terms of life
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 154 ::
& 403/2014 & CRA(V).
imprisonment would strike the right balance between the conflicting
interests of the accused and the public at large and go a long way towards
sustaining public confidence in our legal system. Recently, the Supreme
Court had occasion to consider the issue as to whether it was possible for a
constitutional court to impose a modified sentence even in those cases
where the trial court had not imposed a death sentence. Referring to the
earlier decision in Swamy Shraddananda53 and the constitution bench
decision in V.Sriharan,54 it was held in Shiva Kumar55 that even in a case
where capital punishment is not imposed or is not proposed, the
constitutional courts can always exercise the power of imposing a modified
or fixed-term sentence by directing that a life sentence as contemplated by
'secondly' in Section 53 IPC, shall be of the fixed period of more than
fourteen years. The fixed punishment cannot be for a period of less than
fourteen years in view of the mandate of Section 433-A of the Cr.PC.
52. In the report of the Committee on Reforms of Criminal Justice
System, 2003, headed by Justice (Retd.) V.S. Malimath, it was observed that
"punishment must be severe enough to act as a deterrent but not too severe
to be brutal. Similarly, punishments should be moderate enough to be
human but cannot be too moderate to be ineffective". Keeping the above in
53 Swamy Shraddananda (2) v. State of Karnataka - [(2008) 13 SCC 767]
54 Union of India v. V. Sriharan - [(2016) 7 SCC 1]
55 Shiva Kumar @ Shiva v. State of Karnataka - [(2023) 9 SCC 817]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 155 ::
& 403/2014 & CRA(V).
mind, we are of the view that in these appeals, a sentence of life
imprisonment simpliciter would not be proportionate to the gravity of the
offence committed and would not meet the need to respond swiftly and
sternly to crimes that virtually amount to an attack on democracy itself. That
apart, the barbaric nature of the crime, where an unarmed man was hacked
to death on a highway by six armed assailants who had no known enmity
against him but were mere assassins and co-conspirators, needs to be
condemned in a befitting manner. Not doing so in such a brutal case, by
showing undue leniency to the accused, will adversely affect public
confidence in the efficacy of our legal system. Under these circumstances,
while we desist from awarding the death sentence, we find it just and proper
that A1 to A8 and A11 are sentenced to undergo imprisonment for life, with
the rider that their right to claim remission on their sentence of life
imprisonment shall stand restricted for a period of twenty years so that they
shall be entitled to a release on remission only after they complete twenty
years of actual sentence. As a matter of fact, even in the absence of a
conviction under Section 120B IPC against A1 to A5 and A7, the trial court
had in paragraph 835 of the impugned judgment opined that a fixed term of
twenty years without remission as a condition of the life sentence could be
imposed on the accused before us, but refrained from doing so only because
the trial court did not have the power to do so. As regards A10 and A12, we
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 156 ::
& 403/2014 & CRA(V).
find that although the gravity of the offence proved against them warrants a
treatment similar to A1 to A8 and A11 in the matter of punishment, A10 is
now 76 years old and frail and weak with many medical issues. Similarly
A12 is 62 years old and is undergoing medical treatment for multiple
ailments. He was also indisposed to physically attend the hearing on
sentencing before us and had to be heard through video conferencing from
the hospital where he was undergoing dialysis. We therefore sentence them
to undergo imprisonment for life, without curtailing their right to
remissions. So far as A18 is concerned, we do not see the need to enhance
his sentence from that imposed by the trial court. He was not charged with
conspiracy nor was he attributed with any political affiliation or motive in
connection with his role in the murder. We also feel that the fine amount
imposed by the trial court is inadequate and requires to be enhanced.
53. The trial court directed to pay compensation @ Rs.3,00,000/- to
the wife of the deceased and Rs.2,00,000/- to the son of the deceased out of
the fine amount. In the appeal preferred by the victim, she has sought
enhancement of compensation. Section 357 of Cr.P.C is an important
provision empowering the court to award compensation to the victim of the
crime while passing the judgment of conviction. In addition to conviction,
the court may order the accused to pay a reasonable amount by way of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 157 ::
& 403/2014 & CRA(V).
compensation to the victim who suffered from the action of the accused. It is
a measure of responding appropriately to the crime as well as reconciling
the victim with the offender. The Supreme Court in Hari Kishan56, while
highlighting the necessity of invoking the power under Section 357 of Cr.P.C.
by the court, has recommended that the power under Section 357 of Cr.P.C.
is to be exercised liberally so as to meet the needs of justice in a better way.
It was further observed that the quantum of compensation may be
determined by taking into account the nature of the crime, the justness of
the claim by the victim and the ability of the accused to pay the
compensation. Considering these aspects, the compensation awarded by the
trial court is to be enhanced. We are of the view that a sum of Rs.7,50,000/-
to the wife and Rs.5,00,000/- to the son of the deceased would be reasonable
and adequate.
In the result, the following sentence is passed:
(i) A1 Anoop is sentenced to imprisonment for life and to pay a fine of
Rs.1,00,000/-, in default of payment of the fine to suffer rigorous
imprisonment for a period of one year for the offence punishable
under Section 302 read with 149 IPC. He is further sentenced to
imprisonment for life and to pay a fine of Rs.1,00,000/-, in default of
payment of the fine, to suffer rigorous imprisonment for a period of
two years for the offence punishable under Section 120B read with
56 Hari Kishan and another v. Sukhbir Singh and Others - [AIR 1988 SC 2127]
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 158 ::
& 403/2014 & CRA(V).
Section 302 IPC. He is also sentenced to undergo rigorous
imprisonment for a period of six months for the offence punishable
under Section 143 IPC and rigorous imprisonment for a period of one
year for the offence punishable under Section 147 of IPC.
(ii) A2 Manoj Kumar is sentenced to imprisonment for life and to pay a
fine of Rs.1,00,000/-, in default of payment of the fine to suffer
rigorous imprisonment for a period of one year for the offence
punishable under Section 302 read with 149 IPC. He is further
sentenced to imprisonment for life and to pay a fine of Rs.1,00,000/-,
in default of payment of the fine, to suffer rigorous imprisonment for a
period of two years for the offence punishable under Section 120B
read with Section 302 IPC. He is also sentenced to undergo rigorous
imprisonment for a period of six months for the offence punishable
under Section 143 IPC, rigorous imprisonment for a period of one year
for the offence punishable under Section 147 IPC, rigorous
imprisonment for a period of two years for the offence punishable
under Section 148 IPC and rigorous imprisonment for a period of five
years and to pay a fine of Rs.10,000/-, in default of payment of fine to
suffer rigorous imprisonment for a period of six months for the offence
punishable under Section 5 of the Explosive Substances Act, 1908.
(iii) A3 Sunil Kumar is sentenced to imprisonment for life and to pay a fine
of Rs.1,00,000/-, in default of payment of the fine to suffer rigorous
imprisonment for a period of one year for the offence punishable
under Section 302 read with 149 IPC. He is further sentenced to
imprisonment for life and to pay a fine of Rs.1,00,000/-, in default of
payment of the fine, to suffer rigorous imprisonment for a period of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 159 ::
& 403/2014 & CRA(V).
two years for the offence punishable under Section 120B read with
Section 302 IPC. He is also sentenced to undergo rigorous
imprisonment for a period of six months for the offence punishable
under Section 143 IPC, rigorous imprisonment for a period of one year
for the offence punishable under Section 147 IPC, rigorous
imprisonment for a period of two years for the offence punishable
under Section 148 IPC, and to undergo rigorous imprisonment for a
period of ten years and to pay a fine of Rs.20,000/-, in default of
payment of fine to suffer rigorous imprisonment for a period of one
year for the offence punishable under Section 3 of the Explosive
Substances Act, 1908.
(iv) A4 T.K. Rajeesh Thundikkandi, A5 K.K.Muhammed Shafi, and A7
K.Shinoj are sentenced to imprisonment for life and to pay a fine of
Rs.1,00,000/- each, in default of payment of fine to suffer rigorous
imprisonment for a period of one year each for the offence punishable
under Section 302 read with 149 IPC. They are further sentenced to
imprisonment for life and to pay a fine of Rs.1,00,000/- each, in default
of payment of the fine, to suffer rigorous imprisonment for a period of
two years each for the offence punishable under Section 120B read
with Section 302 IPC. They are also sentenced to undergo rigorous
imprisonment for a period of six months each for the offence
punishable under Section 143 IPC, rigorous imprisonment for a period
of one year each for the offence punishable under Section 147 IPC,
and rigorous imprisonment for a period of two years each for the
offence punishable under Section 148 IPC.
(v) A6 Sijith S. is sentenced to imprisonment for life and to pay a fine of
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 160 ::
& 403/2014 & CRA(V).
Rs.1,00,000/- and, in default of payment of the fine, to suffer rigorous
imprisonment for a period of one year for the offence punishable
under Section 302 read with 149 IPC. He is also sentenced to undergo
rigorous imprisonment for a period of six months for the offence
punishable under Section 143 IPC, rigorous imprisonment for a period
of one year for the offence punishable under Section 147 IPC, and
rigorous imprisonment for a period of two years for the offence
punishable under Section 148 IPC.
(vi) A8 K.C. Ramachandran, A10 K.K.Krishnan, A11 Manojan, A12 Geothi
Babu are sentenced to imprisonment for life and to pay a fine of
Rs.2,00,000/- each, in default of payment of fine to suffer rigorous
imprisonment for a period of two years each for the offence
punishable under Section 120B read with Section 302 IPC.
(vii) A18 P.V. Rafeek is sentenced to imprisonment for life and to pay a fine
of Rs.1,00,000/- in default of payment of fine to suffer rigorous
imprisonment for a period of two years for the offence punishable
under Section 302 read with 109 IPC.
(viii) The sentence of life imprisonment awarded to A1 to A8 and A11 shall
be with an additional condition that they would not be entitled to
remission before completing twenty years of imprisonment.
(ix) The sentence awarded to the A31 by the trial court is confirmed. His
bail bond is cancelled.
(x) The substantive sentences of imprisonment awarded to all the
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 161 ::
& 403/2014 & CRA(V).
accused shall run concurrently.
(xi) From out of the fine amount realised, an amount of Rs.7,50,000/-
(Rupees Seven lakh fifty thousand only) shall be paid to PW5 Rema,
the wife of the deceased and Rs.5,00,000/- (Rupees Five lakhs only) to
CW13 Abhinand, the son of the deceased, as compensation under
Section 357 (1) Cr.P.C.
(xii) The fine amount imposed on the deceased A13 Padinjare Kunhikkattil
Kunhanandan by the trial court shall be realised from the additional
appellant in Crl.A.No.176/2014 in accordance with Section 421 of
Cr.P.C.
Criminal Appeals preferred by A1 to A8, A11, A18 and A31 (Crl.Appeal
Nos.177/2014 and 178/2014, 172/2014, 180/2014, 174/2014 and 179/2014)
are dismissed, Criminal Appeals preferred by the State (Crl.Appeal
Nos.339/2014 and 403/2014) and the Criminal Appeal preferred by the
victim (Crl.A(V).No.571/2015) are allowed in part and Criminal Appeal
preferred by A13 (Crl.Appeal No.176/2014) is disposed of as indicated
above.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
prp JUDGE
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 162 ::
& 403/2014 & CRA(V).
APPENDIX - I
SIM Card Service Call Data Nodal Officer
Provider Records
OP(1) 9747170471 Idea Ext.P226 PW151
OP(2) 8606896163 Idea Ext.P232 PW151
OP(3) 7736822709 Tata Ext.P85 PW99
OP(4) 8606398416 Idea Ext.P229 PW151
APPENDIX - II
Call From Call To Time Duration in seconds
Accused CDR Accused CDR
05.04.2012
06.04.2012
07.04.2012
08.04.2012
10.04.2012
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 163 ::
& 403/2014 & CRA(V).
A8 P310 A12 P314 15.20 8
A12 P314 A8 P310 15.57 19
11.04.2012
A12 P314 A13 P304 19.16 84
13.04.2012
A12 P314 A13 P304 23.13 27
15.04.2012
A13 P304 A12 P314 09.16 161
A12 P314 A11 P317 09.51 41
A11 P317 A12 P314 21.56 147
16.04.2012
A12 P314 A13 P304 07.50 56
A12 P314 A13 P304 20.35 6
A12 P314 A13 P304 20.40 16
18.04.2012
A12 P314 A13 P304 08.16 289
A12 P314 A13 P304 13.23 92
19.04.2012
A12 P314 A13 P304 22.02 195
20.04.2012
A12 P314 A13 P304 07.35 69
A12 P314 A11 P317 07.38 56
A12 P314 A13 P304 07.50 115
A12 P314 A11 P317 14.50 74
21.04.2012
A12 P314 A11 P317 20.30 51
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 164 ::
& 403/2014 & CRA(V).
22.04.2012
A12 P314 A11 P317 20.30 51
23.04.2012
A12 P314 A11 P317 19.28 77
A12 P314 A13 P304 20.16 131
24.04.2012
A12 P314 A13 P304 12.08 132
A18 P295 PW8 14.25 57
PW8 A18 P295 14.39 20
PW8 A18 P295 16.26 55
A5 P244 A2 P236 16.29 22
A12 P314 A8 P310 17.23 62
PW8 A18 P310 18.17 13
A12 P314 A11 P317 18.39 17
A18 P295 PW8 19.20 78
A18 P295 PW8 19.25 32
25.04.2012
A18 P295 PW8 11.33 16
A18 P295 PW8 12.31 27
A18 P295 PW8 13.07 35
A18 P295 PW8 14.31 33
A18 P295 PW8 14.44 51
A18 P295 PW8 15.54 11
A18 P295 PW8 16.36 13
26.04.2012
A13 P304 A14 07.01 86
A11 P317 A12 P314 08.34 33
A12 P314 A11 P317 08.35 26
A5 P244 A2 P326 14.35 15
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 165 ::
& 403/2014 & CRA(V).
A5 P244 A2 P326 14.47 29
A2 P326 A5 P244 15.08 29
A12 P314 A11 P317 15.21 18
27.04.2012
A12 P314 A11 P317 10.29 45
29.04.2012
A11 P317 A12 P314 07.15 13
A12 P314 A13 P304 11.17 144
01.05.2012
A12 P314 A11 P317 22.24 117
02.05.2012
A12 P314 A11 P317 07.42 27
03.05.2012
A12 P314 A11 P317 20.20 6
A11 P317 A12 P314 23.09 24
05.05.2012
A2 P326 A13 P304 08.27 33
A13 P304 A11 P317 10.18 20
A2 P326 A13 P304 12.08 96
06.05.2012
A12 P314 A11 P317 16.14 36
08.05.2012
A12 P314 A11 P317 09.48 17
A12 P314 A13 P304 10.32 17
12.05.2012
A11 P317 A12 P214 12.18 32
Crl.A.Nos.172, 174, 176,
177, 178, 179, 180, 339 :: 166 ::
& 403/2014 & CRA(V).
A13 P304 A12 P314 12.26 16
A12 P314 A13 P304 22.06 145
13.05.2012
A11 P317 A12 P314 16.06 30
A13 P304 A12 P314 15.19 31
14.05.2012
A11 P317 A12 P314 15.34 56
A11 P317 A12 P314 18.38 41
15.05.2012
A12 P314 A11 P317 21.27 39
A12 P314 A11 P317 21.46 21
17.05.2012
A13 P304 A12 P314 11.18 22
