Kerala High Court
Sreekumar S.V vs The Central Bureau Of Investigation on 27 August, 2025
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
DSR NO. 6 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
OF SPE/CBI COURT, THIRUVANANTHAPURAM
PETITIONER
/STATE:
STATE OF KERALA
RESPONDENTS/
COMPLAINANTS:
1.
JITHAKUMAR K.
/O. KAMALASANAN NAIR PCT- 7256 R/O KAMALALAYAM,
S
VP 3- 555B, VILAVOORKAL, MALAYINKEEZH POST,
THIRUVANANTHAPURAM.
2
.
SREEKUMAR.S.V
S/O K.SHIVARAJAN, ARPC T- 1795, S.V.BUILDING,
CONVENT ROAD, NEYYATTINKARA, THIRUVANANTHAPURAM.
PL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
S
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHA
THIS
DEATHSENTENCEREFERENCEHAVING COMEUP
FORFINAL
EARING
H ON
27.08.2025,
ALONG
WITH
CRL.A.940/2018, 959/2018
AND
CONNECTED
CASES,
THE
COURT
ON THE
SAME
DAY
DELIVERED
THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 940 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT
/ACCUSED NO.4:
.AJITH KUMAR
T
AGED 54 YEARS
S/O.THANKAPPAN NAIR,
CIRCLE INSPECTOR OF
POLICE,R/O.PRASANNA BHAVAN,NEMOM,
PALLICHAL,THIRUVANANTHAPURAM.
Y ADVS.
B
SRI.S.RAJEEV
SHRI.ANAND KALYANAKRISHNAN
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :3:
RESPONDENT
/STATE:
ENTRAL BUREAU OF INVESTIGATION
C
REP. BY STANDING COUNSEL, CBI,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031
(RC5(S)/2007/CBI/SCB/CHENNAI.
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
HIS
T CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
27.08.2025,
ALONG
WITH
DSR.6/2018
AND
CONNECTED
CASES,
THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :4:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 959 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT
/ACCUSED NO. 5:
.K.SABU
E
AGED 59 YEARS, S/O.ISRAEL,
ASST.COMMISSIONER OF POLICE,R/O.K.P.BHAVAN,
VELLARDA JUNCTION,THIRUVANANTHAPURAM.
Y ADVS.
B
SRI.S.RAJEEV
SHRI.ANAND KALYANAKRISHNAN
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
SRI.PIRAPPANCODE V.S.SUDHIR
SHRI. AKASH S.
SMT.V.S.VARALEKSHMI
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :5:
RESPONDENT
/STATE:
ENTRAL BUREAU OF INVESTIGATION
C
REP. BY STANDING COUNSEL, CBI,HIGH COURT OF
KERALA,ERNAKULAM - 682 031
(RC 5 (S)/2007/CBI/SCB/CHENNAI).
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
HIS
T CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
27.08.2025,
ALONG
WITH
DSR.6/2018
AND
CONNECTED
CASES,
THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :6:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 965 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT
/ACCUSED NO. 6:
.K. HARIDAS,
T
AGED 62 YEARS, S/O.KRISHNAN NAIR,
ASST.COMMISSIONER OF POLICE (RETD.),
SUPRABHA, TC.NO.34/1533, CHITTATINKARA,
VATTIYOORKAVAU, THIRUVANANTHAPURAM.
Y ADVS.
B
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.SACHIN JACOB AMBAT
SHRI.M.A.MOHAMMED SIRAJ
SMT.ANNA LINDA EDEN
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :7:
HRI.HARIKRISHNAN S.
S
SRI.S.SREEKUMAR (SR.)
RESPONDENT
/STATE:
ENTRAL BUREAU OF INVESTIGATION
C
REPRESENTED BY STANDING COUNSEL, CBI,HIGH COURT OF
KERALA, ERNAKULAM - 682 031
(RC.5(S)/2007/CBI/SCB/CHENNAI).
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
THIS
CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
N
O 27.08.2025,
ALONGWITH
DSR.6/2018ANDCONNECTEDCASES,THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :8:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 1057 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.1:
ITHA KUMAR.K
J
AGED 53 YEARS
S/O KAMALASANAN NAIR, PCT-7256 R/O. KAMALALAYAM,
VP 3-555B VILAVOORKAL, MALAYINKEEZH POST,
THIRUVANANTHAPURAM
Y ADVS.
B
SHRI. P.VIJAYA BHANU (SR.)
SHRI.HARISH R. MENON
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
SRI.V.C.SARATH
SMT.POOJA PANKAJ
SRUTHY N. BHAT
SMT.PRAVEENA P.K.
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :9:
RESPONDENT
/COMPLAINANT:
NSPECTOR OF POLICE
I
CENTRAL BUREAU OF INVESTIGATION,SCB CHENNAI,
REPRESENTED BY STANDING COUNSEL CBI,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
THIS
CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
N
O 27.08.2025,
ALONGWITH
DSR.6/2018ANDCONNECTEDCASES,THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :10:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 1132 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT
/2ND ACCUSED
:
REEKUMAR S.V.
S
AGED 42 YEARS
S/O K SHIVARAJAN, ARPCT-1795, S V BUILDING,
CONVENT ROAD, NEYYATTINKARA,
THIRUVANANTHAPURAM, PIN - 695121
Y ADVS.
B
SRI. ARUN V.G.
SRI.R.ANIL
SHRI.SUJESH MENON V.B.
SMT.INDULEKHA JOSEPH
SRI.NEERAJ NARAYAN
RESPONDENT/
STATE/COMPLAINANT:
1
HE CENTRAL BUREAU OF INVESTIGATION
T
REPRESENTED BY ITS STANDING COUNSEL,
HIGH COURT OF KERALA, PIN - 682031
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :11:
2
HE STATE OF KERALA,
T
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM,KOCHI-682031
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
HIS
T CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
27.08.2025,
ALONG
WITH
DSR.6/2018
AND
CONNECTED
CASES,
THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :12:
J U D G M E N T
[DSR Nos.6/2018, 940/2018, 959/2018, 965/2018, 1057/2018, 1132/2018
]
Raja Vijayaraghavan. J.
Prelude:
Udayakumar, a 28-year-old man, was picked up by two police officers
attached to the Fort Police Station, Thiruvananthapuram, on 27.09.2005 at
around 2:15 a.m., while he was standing with his friend Suresh Kumar at
Sreekandeshwaram Park, Thiruvananthapuram. He was taken to theFortPolice
StationandthereaftertothenearbyofficeoftheCircleInspector,wherehewas
subjected to custodial interrogation involving the use of force and infliction of
injuries. Later, on the same day, Udayakumar was declared dead at
approximately 11:40 p.m. attheMedicalCollegeHospital,Thiruvananthapuram.
The post-mortem revealed severe crush injuries to both thighs, which were
determined to be the causeofdeath.Theprosecutioncaseisthatthedeathof
Udayakumar was the result of custodial violenceandtortureinflictedunderthe
shieldofpoliceuniformandauthority,withintheconfinesofaPoliceStation.The
case also exposes themannerinwhichseniorpoliceofficerscolludedwiththeir
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :13:
subordinatestosuppressthetruthandobstructthecourseofjustice.Followinga
prolonged investigation,initiallybytheCBCIDandsubsequentlybytheCBI,the
trial was conducted before the learned Sessions Court. Accused Nos. 1 and 2
were found guilty of murder and were sentenced to death by hanging. The
superior officers, arraigned as accused Nos. 4 to 6, were found guilty of
conspiracy and of abusing their official position to fabricate records and cause
the disappearance of evidence in an attempt to shield the perpetrators. They
were accordingly convicted and sentenced to undergo lesser terms of
imprisonment. Accused No. 2 passed away in the course of proceedings, and
hence the proceedings against him were abated.
1.1. Crl. A.1057of2018hasbeenpreferredbythe1staccused,Crl.A.
No. 940of2008hasbeenpreferredbythe4thaccused,Crl.A.No.959of2018
hasbeenpreferredbythe5thaccusedandCrl.A.No.965of2018hasbeenfiled
bythe6thaccusedassailingthefindingofguilt,convictionandsentencepassed
by the SPE/CBI Court, Thiruvananthapuram.
1.2. TheSPE/CBICourt,Thiruvananthapuram,hasforwardedtheentire
case records to this Court for confirmation of the death sentence of the 1st
accused as provided in Section 366 (1) of the Code of Criminal Procedure
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :14:
(hereinafter referred to as the 'Cr.P.C.').
2. The prosecution case:
2.1. At around 2:15 p.m. on September 27, 2005, Udayakumar (the
deceased) and Suresh Kumar (PW1), who were together at Sreekanteswaram
Park, were apprehended by Police Constables Jitha Kumar (A1) andSreekumar
(A2), members of the Crime Squad of the Fort Police Station. They found
currency notes in the possession of Udayakumar and dissatisfied with his
explanation,thePoliceOfficerstookUdayakumarandPW1toFortPoliceStation
inanautorickshawandtheywereinitiallyentrustedwithThankamani(PW5)the
officer in charge of the General Diary (GD).
2.2. After arrival at the Police Station, A1 and A2 tookUdayakumarto
the Office of the CI and after counting his money made him lie on a wooden
bench and started torturing him. They lashed the soles of his feet repeatedly
with a bamboo cane. While they were going about with this horrendous task
Soman (A3), another Police Constable, joined them. A3 forcibly held
Udayakumar's head while A1 and A2 forcibly kneaded a GIpipe(MO10)onhis
thighs, crushing his thigh muscles. It is alleged that the torture lasted
approximately 1.5 hours.
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :15:
2.3. After the torture, a battered and injured Udayakumar waswalked
backbyaccusedNos.1and2tothePoliceStationandhewaslodgedinacell.
Thereafter,A1andA2tookSureshKumar(PW1)totheCI'sOffice,strippedhim,
andstartedbeatinghim.Hearinghiscries,thepersonnelintheofficeintervened
and asked them to spare him. PW1 was then made to stand outside
Udayakumar's cell.
2.4. At about 10:15 p.m., PW5 asked the inmates of the cell whether
they wanted dinner, but found Udayakumar unresponsive. He obtained
instructionsfromtheCircleInspectorE.K.Sabu(A5),andimmediatelythereafter,
Udayakumar was rushed to the General Hospital, where he was seen by
Dr. Sunitha (PW7). The Doctorfoundthathisconditionwascriticalandadvised
immediate transfer to the Medical College. Udayakumar was declared dead at
11:40 p.m. at Medical College by Dr. Premlal (PW8) due to the crush injuries
sustained on his thighs.
2.5. Immediately after Udayakumar's death was confirmed around
11:45p.m.,S.I.T.AjithKumar(A4),C.I.E.K.Sabu(A5),andA.C.P.T.K.Haridas
(A6)conspiredtofabricatefalsedocumentswiththeintenttoshieldA1,A2,and
A3fromlegalconsequences.Instructionswereissuedtodivertallphonecallsto
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :16:
the Circle Inspector's office in order to prevent information regarding the
custodial death from leaking. False entries were made in the General Diary
(Ext.P4),pursuanttoinstructionsfromA5,whodirectedthatthediaryentriesbe
stoppedat7:30p.m.toconcealtheillegaldetention.SubordinatePoliceOfficers,
including PW5, were coerced into making these entries.
2.6. A false FIR, Crime No.703 of 2005 (Ext.P17), was fabricated and
backdated to 8:00 p.m. on 27/9/05, though it was infactregisteredafter3:00
AMon28/9/05.CrimeSIRaveendranNair(PW15)wascompelledtoregisterthis
false FIR under threat. Head Constable Mohanandictatedafabricatedmahazar
(Ext.P18) to support a narrative of fictitious arrest, falsely claiming that
Udayakumar and PW1 were arrested at Sreekanteswaram Park at 4:00 p.m..
2.7. Other official records were also manipulated to align with the
concocted timeline, including the Register of Property Found in Search of
Prisoners (Ext.P20), arrest memos (Exts.P22, P28(a), P28(b)), arrest registers
(Ext.P27), inspection memos (Exts.P21, P24), and the remand application
(Ext.P23).Althoughanarrestmemowaspreparedtoevidencetheallegedarrest
of Udayakumar, his signature was absent, thus substantiating the fact that he
had already succumbed to his injuries by then.
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :17:
2.8. A4,A5,andA6threatenedandcoercedsubordinateofficers(PW5,
PW15, PW16, PW17, PW18) into creating these false documents and later to
depose falsely before the Trial Court.
2.9. The bamboo cane and bath towel (thorthu)allegedlyusedforthe
torture were intentionally destroyed by the accused to eliminate evidence.
3. Initial Investigation:
3.1. Initially, two crimes were registered. Crime No. 703 of 2005 was
registered under Section 41(1)(d) and Section 102 of the Cr.P.C. against
Udayakumar and PW1. Immediately thereafter, Crime No.704 of 2005 was
registered under Section 174 of the Cr.P.C, on account of the death of
Udayakumar. The investigation of these two caseswereinitiallyhandedoverto
the Narcotic Cell Assistant Commissioner (PW43). Thereafter, the investigation
was handed over to CBCID by the ADGP (Crimes) and accordingly,
K.B.Balachandran (PW45), then Superintendent CBCID, S.I.G.I, took over the
investigation.HewasassistedbyDy.SPCBCIDS.I.G.(PW44).Oncompletionof
the investigation, CBCID submittedareferreportinCrimeNo.703of2005and
final report in Crime No.704of2005fortheoffencepunishableunderSections
323,331,302r/w.Section34oftheIPCagainstaccusedNos.1to3,viz.,Jitha
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DSR Nos.6/2018 & Con.Cases :18:
Kumar, Sreekumar, and Soman.
4. Earlier Trial
4.1. Committal proceedings were initiated by the Judicial Magistrateof
FirstClass-II,ThiruvananthapurambynumberingthesameasC.P.No.21of2006
tothePrincipalSessionsCourt,Thiruvanthapuramon04.04.2006.Thecasewas
numbered as S.C.No.1542 of 2006 and the same was made over to the
Additional Sessions Court (Fast Track-III), Thiruvananthapuram.
4.2. As many as 34 witnesses were examined beforetheTrialCourtin
S.C.No.1542of2006andseveraldocumentsandmaterialobjectsweremarked.
In the course of trial, the Additional Sessions Judge arraigned oneRaveendran
Nair, who was examined as PW11 in the said case under Section 319 of the
Cr.P.C. The entire prosecution witnesses except for a few did not support the
prosecution and the trial became a farce. This was bound to happen as the
police officers who were privy to the incident did not speak against their
colleagues and superiors.
5. Ordering of further investigation
5.1. Faced with the above scenario, the mother of deceased
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :19:
UdayakumarapproachedthisCourtandfiledW.P.(C)No.24258of2007seeking
various reliefs, including the handing over of the investigation to the CBI.
Crl.R.P.No. 2902 of 2007 was filed by Raveendran Nair challenging the order
passedbythelearnedSessionsJudgeinvokingpowersunderSection319ofthe
Cr.P.C. and arraigning him as the 4th accused.
5.2. The learned Single Judge, before whom the matter had come up
for consideration, referred the matter to the Division Bench as one of the
questions that arose for consideration waswhetherfurtherinvestigationcanbe
handed over to a different agency other thantheagencywhichcarriedoutthe
initial investigation.
5.3. Their Lordships of the Division Bench, after consideringtheentire
facts and circumstances and hearing the contentions, held that the learned
Sessions Judge was justified on the basis of the evidence adduced before it in
arraigning Raveendran Nair as the 4th accused and dismissed the Revision
Petition. Insofar as the further investigationbytheCBIisconcerned,thisCourt
held that it was a fit case in which CBI should conduct "further investigation".
The court also held that further proceedings of the Trial Court needbestarted
only after CBI files its report. Accordingly, the CBI was directed to conduct
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :20:
further investigation in Crime No. 704 of 2005.
5.4. In terms of the directions issued by this Court, Crime No. 704 of
2005 dated 27.09.2005 under section 174 of the Cr.P.C. was re-registered as
Crime No. RC-10/S/2007-CBI/SCB/Chennai and the investigation was entrusted
withK.PradeepKumar,InspectorofPolice,CBI.Thereportwasforwardedtothe
CJMCourt,Ernakulam. ItwouldbepertinenttonotethatwhileallowingtheWrit
Petition,theDivisionBenchhaddirectedtheCBItoconductfurtherinvestigation
and the trial which had commenced before the Sessions Court,
Thiruvananthapuram, was stayed sothatsupplementary/furtherreportcouldbe
filed by the CBI.
5.5. While so, W.P.(C) No. 12365 of 2008 was filed with a prayer to
transferCrimeNo.703of2005oftheFortPoliceStationalsototheCBI,inwhich
casethepolicehadsubmittedareferreport.ThesaidWritPetitionwasallowed
by this Court by judgment dated 8.7.2008. Accordingly, K. Pradeep Kumar
(PW47) took over investigation and renumbered Crime No. 703of2005asRC-
5/S/2008-CBI/SCB/Chennaiand investigationwascommencedlinkingittoCrime
No.RC-10/S/2007-CBI/SCB/Chennai.
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :21:
6. Addition of accused and tendering of pardon to accused
6.1. Aftertakingovertheinvestigation,Ext.P149reportwasfiledbythe
Investigating Officer, CBI, seeking to incorporate Sri. George G. as A5,
Sri.Mohanan as A6, Sri. K. Thankamani as A7, Sri. N. Ramachandran as A8,
Smt.Sheeja Kumari as A9 and Smt. Sajitha C.S. as A10 in CBI CaseNo.RC10
(S)/2007(CrimeNo.704of2005ofFortPoliceStation).Immediatelythereafter,
Ext.P151 report was submitted arraigning Sri.C.R. Heeralal as A11 and
Sri.Sureshkumar @ Mani as A12,asaccusedintheabovecase.Itneedstobe
noted that Sri. Sureshkumar, who was arraigned as A12, was the person who
wascaughtalongwithdeceasedUdayakumarbyaccusedNos.1and2andwas
assaulted while at the Police Station.Afterarraigningthemallasaccused,they
wereallarrestedon18.09.2010,asisevidentfromExt.P158toP165.Theywere
remanded to judicial custody.Onthesamedayitself,theCBIfiledExts.P166to
P173, to tender pardon to the aforesaidRaveendranNair(A4), K.Thankamani
(A7), Sri. N. Ramachandran (A8), Smt.SheejaKumari(A9), Smt.Sajitha(A10),
Sri.C.R.Heeralal(A11),Sri.SureshKumar(A12)andSri.George(A5).Raveendran
Nair (A4) had been incorporated as accused by the learned Sessions Judge by
invokingSection319oftheCr.P.C,whichorderhadbeenupheldbythisCourt.All
theseapplicationswerefiledbeforetheChiefJudicialMagistrateErnakulam.Itis
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stated in the said application that the case was registered pursuant to the
directions issued by this Court in W.P.(C) No.24258 of 2007, and that on
completion of investigation, a supplementary final report had been filed before
the Chief Judicial Magistrate. By separate orders dated 11.10.2010, the Chief
Judicial Magistrate tendered pardon to the aforesaid persons, on condition of
them making a full and true disclosure of the whole of the circumstances and
facts within their knowledge relating to the offence, and every other person
concerned.
6.2. Insofar as Crime No. 703 of 2005 registered as RC 5/S/2008 is
concerned, the Investigating Officer, CBI filed Ext.P176 Report beforetheChief
Judicial Magistrate, Ernakulam seeking to delete Section 41(1)(d) and Section
102 of the Cr.P.C, as mentioned intheoriginalFIR,andtoincorporateoffences
underSection120Br/w.Sections331,348,466and474oftheIPC.Itisstated
thereinthattheoriginalFIR,connecteddocumentsandMaterialobjectswerein
the Court of the CJM, Ernakulam. Thereafter, Ext.P177 report was submitted
beforethecourtseekingtoarraignJithaKumarandSreekumarasaccusedNos.
1and2respectivelyinthesaidcrimeandalsofordeletingfromthearrayofthe
accused Sureshkumar @ Mani. Reports were then submitted seeking judicial
remand of Accused Nos. 1 and 2, who were arrested on 20.04.2009. On
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19.05.2009, Ext.P181 report was submitted seeking to incorporate
Sri.P.Raveendran Nair asthe3rdaccusedandSri.Heeralalasthe4thaccusedin
R.C.No.5/S/2008. Sri. Raveendran Nair and Heeralal were arrested on
18.05.2009 at 05.45 p.m. Ext. P184applicationwasthensubmittedforremand
of the above accused and police custody was also sought. Immediately
thereafter, Ext.P185 report was submitted before the Chief Judicial Magistrate
seeking to incorporate Sri. Thankamani (A5), Sri.N Ramachandran (A6), Smt.
Sheeja Kumari (A7) and Smt. Sajitha C.S (A8) as Accused Nos. 5 to 8.
6.3. Ext. P186 application was then filed by the Investigating officer,
CBI, requesting thattheSection164statementofRaveendranNair(A3)inR.C.
5/S/2008 be recorded. The aforesaid accused was in custody then. Ext. P187
applicationwassubmittedrequestingthatSection164statementofHeeralal(A4)
be recorded. Those applications were allowed by the CJM.
6.4. Thereafter, Ext.P189 report was submitted on 16.12.2009 seeking
toincorporateT.AjithKumarasA9,Sri.E.K.SabuasA10andSri.T.K.Haridasas
A11inR.C.No.5/S/2008.Thereafter,separateapplicationswerefiledbytheCBI
seeking to tender pardon to Sri.P. Raveendran Nair, Sri.N. Ramachandran,
Sri.D.R.Heeralal,Smt.Thankamani,Smt.SheejaKumariandSmt.Sajithawhich
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applications were allowed by the learned Chief Judicial Magistrate. Ext.P198
application was then filed seeking to incorporate Ajith Kumar (A13) and E.K.
Sabu(A14)asaccused.Theaforesaidaccusedwerearrestedon18.08.2010and
werereleasedonbailbytheCBIthemselvesonthesamedayasisevidentfrom
ExtsP200toP204.TheywerethenproducedbeforetheChiefJudicialMagistrate
and Ext.P205 report was submitted to record the 161 statements of all the
witnesses.
7. Submission of Final Report
7.1. After completion of the investigation, PW47 submitted the Final
Report, and thereafter, R.C. No.5/S/2008 was renumberedasC.P.No.8of2010,
and RC No.10/S/07 was numbered as C.P. No.9/2010 on the file of the Chief
Judicial Magistrate Court, Ernakulam.
7.2. The cases were then committed to the Principal Sessions Court,
Ernakulam on 12.12.2011. After removing the approvers from the array of the
accused, in R.C.No 10/S/2007 the accused were Jitha Kumar (A1), Sreekumar
(A2),Soman(A3),T.AjithKumar(A4),E.K.Sabu(A5).InR.C.No5/S/2008,the
accusedwereJithaKumar(A1),Sreekumar(A2),T.AjithKumar(A4),E.K.Sabu
(A5) and T.K.Haridas (A5).ThePrincipalSessionsCourtmadeoverthecasesto
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the CBI Court, Ernakulam and thecaseswerenumberedasS.C.No.25of2012
and S.C.No. 26 of 2012, respectively. Thereafter, the cases were transferredto
the Special Judge (SPE/CBI) at Thiruvananthapuram as per Order dated
14.03.2012 of thisCourtontheadministrativeside.Thecaseswereaccordingly
numbered as S.C. No. 916 of 2012 and S.C.No. 917of2012.SCNo.916/2012
was clubbed with SC 917/2012.
8. Petition filed by CBI to quash charge laid by the CBCID and to
eschew evidence
8.1. After the submission of the final report, the CBI approached this
Court and filed Criminal M.C. No. 4957 of 2010, seeking to quash the charge
framed by the learned Sessions Judge (Fast Track Court-III),
Thiruvananthapuram, in S.C. No. 1542 of 2006, and to order a de novo trial
based on the supplementary report filed in RC10(S)/2007/CBI/SCB/Chennai.It
was contended in the petition that a de novo trial ought to be ordered on the
basis of the supplementary charge sheet filed by the CBI, withadirectionthat
theevidencegivenbycertainaccusedpersons,whoweresubsequentlyaccepted
as approvers and examined as witnesses in the previous trial, as well as their
statementsrecordedunderSection161Cr.P.CbythelocalpoliceandtheCBCID,
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shouldnotbeconsideredinthefreshtrial.ThelearnedSingleJudgerejectedthe
prayer, holding that a de novo trial, as sought by the CBI, eschewing the
evidence recorded in theprevioustrialandafterquashingthechargeframedin
S.C. No. 1542 of 2006 by the Additional Sessions Court (Fast Track-III),
Thiruvananthapuram, was not permissibleinlaw.TheCriminalM.C.filedbythe
CBI was dismissed.
9. Joint Trial of the cases ordered
9.1. BeforetheSessionsCourt,theSpecialPublicProsecutorfortheCBI
filed Crl.M.P.No. 58of2014andCrl.M.P.No.59of2014seekingjointtrialofthe
two cases, and the said petition was allowed. The learned Sessions Judge
orderedjointtrialinS.C.No.917of2012byaddingthe5thaccusedHaridasfrom
S.C.No.916of2012.ThelearnedSessionsJudgeswasoftheviewthataccused
Nos. 1 to 3 in S.C.No. 917 of 2012 could be tried for the offences punishable
under Sections 323, 331, 348 and 302 r/w. Section 34 of the IPC, and all
accusedinS.C.No.917of2012andA5inS.C.No.916of2012couldbetriedfor
theoffencespunishableunderSections120Br/w.Section201,167,466and474
of the IPC. The court also ordered that the offences punishable under Section
120Br/w.Section193and116oftheIPCcouldbeconsideredafterthedisposal
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of S.C. No. 917 of 2012. Being aggrieved, Soman (A3) and Haridas (A6) filed
Crl.M.C. No.3189 of 2014 and Crl. M.C.No.3083 of 2014 beforethisCourt.This
Courtupheldtheorderofthetrialcourtclubbingthechargeandaddingthe5th
accusedinS.C.No.916of2012astheadditional7thaccusedinS.C.No.917of
2012. However, the other part of the order relegating the trial of offences
punishable under Section 120B r/w. Section 193 and 116 of the IPC, after
disposal of S.C.No. 917 of 2012 was set aside, and directions were issued to
consider the matter afresh.
9.2. Pursuant to the same, the 4th accused, Mohanan, filed an
application seeking discharge, and the said petition was allowed, and the 4th
accused was discharged of the offences punishable under Sections 120B r/w.
Sections193and116oftheIPC.ThechargeinS.C.No.916of2012wasclubbed
with S.C. No. 917of2012,andthe5thaccusedHaridasinS.C.No.916of2012
wasaddedasanadditional7thaccusedinS.C.No.917of2012.Therefore,after
the discharge of the 4th accused Mohanan, 6 persons are facing trial.
10. Evidence let in
10.1. Before the Court of Sessions, as many as 47 witnesses were
examinedbytheprosecutionasPWs1to47andthroughthemExts.P1toP207
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were exhibited and marked. Material objects were produced and identified as
MOs 1 to MO13 series. After the conclusion of the prosecution evidence, the
accused Nos. 1, 2 and 4 to 6 were examined under Section 313 of the Cr.P.C.
This is because the accused No. 3 had died pending trial. Thereafter, as there
was no scope for acquitting the accused under Section 232 of the Cr.P.C, they
were called upon to enter upon their defence. On the part of the1staccused,
DW 1 and DW2 were examined, and Exts.D1 to D15 were marked.
11. Findings of the learned Sessions Judge
11.1. The learned Sessions Judge found A1 (Jitha Kumar) and A2
(Sreekumar) guilty of custodial torture leading to murder, and of conspiracy to
falsify records and cause disappearance of evidence. A4 (T. Ajith Kumar), A5
(E.K. Sabu), and A6 (T.K. Haridas) were found guilty of conspiracy tofabricate
records and to suppress material evidence. However, all the accused were
acquitted of offences under Sections 466 and 474 IPC relating to forgery.
11.2. Inarrivingatthefindingofguilt,thelearnedSessionsJudgeplaced
reliance on the evidence of PW1 (Suresh Kumar),afriendofUdayakumar,who
was also detained by the police. Though he turned hostile during the trial, his
initial complaint (Ext.P9) detailing the torture, as well as his early supportive
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testimony,werefoundcrediblebythecourt.HisidentificationofA1andA2inthe
Test Identification Parade (TIP) was corroborated by PW38 (the learned
Magistrate) and PW46 (Jailor).
11.3. The court also placed substantial reliance on the testimony of
PW21 (Rajani), a Police Constable on VHF duty, who testified that A1 and A2
brought Udayakumar and PW1 to the station at around 2:30 p.m.. She further
deposed that Udayakumar was taken to the Circle Inspector's office and later
returned in a battered condition.
11.4. The court additionally relied on the evidence of DW2 (Mohanan
V.P.), who stated that he had heard individuals being interrogated in the Circle
Inspector's office around 3:00-3:30 p.m..
11.5. Significant weight was given to the testimony of PW5
(Thankamani),PW15(RaveendranNair),PW16(Sajitha),PW17(SheejaKumari),
and PW18 (Heeralal), police personnel who were tendered pardon and turned
approvers.Thesewitnesseshadnotsupportedtheprosecutionintheearliertrial
but later deposed that A1 and A2 had brought Udayakumar and PW1 to the
station, and that Udayakumar was taken to the Circle Inspector's office and
brought back in a severely injured condition. Their explanation that they had
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beencompelledtotestifyinaccordancewiththepolicerecordsintheearliertrial
underpressurefromseniorofficerswhowerethemselvesaccusedwasaccepted
by the court. The recovery of the GI pipe (MO10), which had bloodstains and
wasseizedfromthescene,andthepresenceofbloodonMO11(woodenbench)
and MO12 (iron cot) found in the Circle Inspector's office, were found to
corroborate the prosecution's case of custodial torture.
11.6. The learned SessionsJudgefurtherheldthatacriminalconspiracy
was hatchedamongA1,A2,A4,A5,andA6afterUdayakumar'scustodialdeath
onthenightof27.09.2005,withtheintenttofabricatefalserecordstoshieldA1,
A2, and A3 from legal punishment. It was held that the evidence established,
beyond anydoubt,thatA4,A5,andA6gatheredattheFortPoliceStationafter
Udayakumar'sdeathandorchestratedthecover-upbymanipulatingtheGeneral
Diary (GD), fabricating the FIR (Ext.P17) and mahazar (Ext.P18), making false
entriesinthePropertySearchRegister(PSR-Ext.P20),arrestmemos[Exts.P22,
P28(a), P28(b)], arrest register (Ext.P27), inspection memos (Exts.P21, P24),
and remand application (Ext.P23), all of which were falsified to support the
fabricated narrative.
11.7. Relying on the evidence of PW5, PW15, PW16, PW17,andPW18,
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thecourtheldthatA4,A5,andA6hadthreatenedandcoercedthemintomaking
false entries in official records and personal notebooks, and into giving false
testimony in court. It was also held that the accused managed to destroy key
material objects used in the torture, including a bamboo cane and a towel
(thorth).
12. Submissions of the learned counsel
12.1. Sri. P.Vijayabhanu, the learned counsel appearing for the 1st
accused, advanced the following contentions:
a) The material witnesses whose evidence was relied on by the learned
SessionsJudgetoarriveatafindingofguiltwasearlierexaminedbefore
the AdditionalSessionsCourt(FastTrack-III),Thiruvananthapuramand
had stated a different version before the court. The said version
corresponded to therecordsmaintainedinthePoliceStation. However,
afterentrustingtheinvestigationwiththeCBI,thebureauactedagainst
the directions issued by the Division Bench and conducted
re-investigation. The material witnesses were arrayed as accused and
latergivingthemcertainassurances,theyweremadeapprovers. Those
witnesses under threat by the CBI and to escape being an accused
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deposed a different version before the court in the subsequent trial
whichtookplaceafteralmost6years. Accordingtothelearnedcounsel,
as held by this Court in Viswanathan v. StateofKeralaandOrs.1,
while evaluating the testimony of approvers the courts are required to
considerthecircumstancesunderwhichtheywerearrested,thespecific
role attributed to them in the charge, the actual role played in the
commissionoftheoffenceandthetimingandmannerinwhichthesaid
witness chose to turn approver.
b) Relying on the law laid down by this Court in State of Kerala v Anil
Kumar@Jacky2,itisarguedthatwhileconsideringtheevidenceofPW
5, PW15 to18whowereinitiallyarrayedasaccusedandlatertendered
pardon, the Court failed to satisfy the double test viz., whether their
evidence was reliable and whether the evidence has been sufficiently
corroborated. It was argued that the Court ought to have found
corroborationoftheapprover'stestimonyfromindependentsourcesand
one approver's testimony could not have been used to corroborate the
testimony of another approver.
1
[ 2025 :KER: 42302]
2
[2
024 (3) KLJ 995]
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c) The learned Senior Counsel would then refer to the court charge and it
was argued that the specific charge against the 1st accused is that he
had tortured Udayakumar forthepurposeofextortingaconfessionand
thereby causing death. It is submitted that the charge does not
specificallystatethatthe1staccusedhadtheintentionofcausingdeath
orknowledgethatbyhisactdeathwouldbecausedtothedeceasedand
if that be thecase,hecouldnothavebeenfoundguiltyfortheoffence
of murder.
d) The learnedSeniorcounselwouldrelyontheobservationsmadebythe
Apex Court in Shankar Kisanrao Khadev.StateOfMaharashtra3,
wherein the Hon'ble Court had analysed all past precedents including
Bachan Singh v. State Of Punjab4, Machhi Singh v. State of
Punjab5, Mohd. Chaman v. State (NCT Of Delhi)6.,SurendraPal
Shivbalakpal v. State Of Gujarat7, State Of Maharashtra v.
Mansingh8 andStateOfRajasthanv.KashiRam9 anditwasargued
thatinanyviewofthematter,thecasewouldnotfallundertherarestof
3
[(2013) 5 SCC 546]
4
[( 1980) 2 SCC 684]
5
[(1983) 3 SCC 470]
6
[(2001) 2 SCC 28]
7
[(2005) 3 SCC 127]
8
[(2005) 3 SCC 131]
9
[(2006) 12 SCC 254]
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the rare category warranting capital punishment. It is submitted that if
the prosecution case is accepted in its entirety, it can be seenthatthe
evidenceletin,whichispurelycircumstantialinnature,wouldnotreveal
that1staccusedhadanyintentiontomurderUdayakumarorthathehad
any knowledge in inflicting any injuries which are sufficient in the
ordinarycourseofnaturetocausedeath.Itisfurthersubmittedthatthe
1st accused had no previous criminal record or isthereanymaterialto
conclude that he would be a threat to the society. Neither the "Crime
test" nor the "Criminal test" would be satisfied and under no
circumstances can the case be put in the category of a rarest of rare
case.
12.2. Sri.S Rajeev, the learned counsel appearing for the 4th accused,
advanced the following submissions.
a) The4thaccusedhadjoinedthePoliceStationasaConstableonlyafew
dayspriortotheallegedincidentandtheevidencedidnotrevealthathe
was ever informed about the custody of Udayakumar.
b) Allthewitnesseswhoseevidencewasreliedonforarrivingatthefinding
of guilt were examined before the Sessions Court during the previous
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trial which was stayed by this Court. None of the witnesses deposed
about the involvement of the 4th accused. After taking over the
investigation pursuant to orders issued by this Court, the CBI, against
the spirit of thedirections,conductedareinvestigationandfiledafresh
final report before the Court.Thewitnesseswhowereearlierexamined
were arrayed as accused and they were then tendered pardon under
threat that they shall narrate the case set up by theCBI.Thereafter,a
freshtrialwasconductedwhereinallthewitnessescameforwardwitha
newcase.ThoughwhiledisposingofCrl.M.C.No.4957of2010,filedby
the CBI, this Court had opined that after the submission of the
supplementary report by the CBI, the trial court may have to alter the
charges and had ordered testimony of the witnesses previously
examinedwillhavetobeappreciatedinlightoftheevidenceproposedto
be adduced in the subsequent trial by the trial court, the learned
Sessions Judge ignored this directive and proceeded to convict the
accused solely relying on the evidence tendered in the subsequent trial.
(c) The learned counsel criticised the manner in which the CBI chose to
presentitswitnessesduringtrial.Itwaspointedoutthattheevidenceon
record unequivocally establishes that severalotherseniorpoliceofficers
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werepresentinthePoliceStationafter7:30p.m.ontherelevantday.If
that were indeed the case, there was no plausible justification for the
non-examination of material witnesses who were expressly cited in the
charge, namely CW9 (Anilkumar), CW11 (Satheesan), CW13
(Binukuttan), CW14 (Kamaludeen K.S.), CW15 (Arunkumar), CW33
(E.Shareefudeen), CW34 (Mohammed Shafi), CW37 (Xavier L. in RC
10/S/07/CBI/SCB/Chennai), and CW20 (Madhusoodhan), CW23
(Shibeerkhan P.K. in RC 5/S/08/CBI/SCB/Chennai, as well as one
Mohannan Chettiar). Instead of initiating proceedings against PW5,
PW15, PW16, and PW17, who are alleged to have manipulated official
records and who were admittedly present in the police station at the
relevant time, the CBI, it is contended, has deliberately fabricated
evidenceinanattempttofastenculpabilityuponthesuperiorofficersfor
the unfortunate incident. This is more so because the persons who
benefitedbychangingthetimeandmanipulationoftherecordswerethe
officers who were present at the PoliceStation and none else.
d) Theevidenceadducedwillnotestablishthatthe4thaccusedtookpartin
any conspiracy or that the alleged weapons, namely the 'cane' and
'thorthu' alleged to have been used by the accused Nos. 1 and2were
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destroyed by anyone. Furthermore, the manipulation, if any of the
documentswerecommittedbytheresponsibleofficersthemselvesandif
that be the case, the offence under Section 167 of the IPC will notbe
made out.
e) The failure of the trial court to evaluate the evidence of the witnesses
who were examined during the earlier trial is fatal.
f ) Reliance was placed on theevidenceofPW3andPW5anditispointed
outthatthefactthatUdayakumarwassickwasbroughttothenoticeof
the 5th accused only after 10.30 p.m.. The notebooks of the officers
including the sentry were in fact collected by PW5andnoneelse.PW5
has no case that he had occasion to inform the superior officersabout
thehealthconditionofUdayakumaratanypointoftime. Itissubmitted
that a proper evaluation of the evidence would not reveal that the 4th
accusedwasawareoftheillegalcustodyofUdayakumarandtherecords
alsowillnotrevealthathewasinformedabouttheincidentthroughVHF
or otherwise.
g) ItisurgedthattheingredientsofSection167orSection120BoftheIPC
have not been made out.
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h) The charge framed by the learned Sessions Judge is not in order. In
order to elucidate the principles reliance was placed on a judgment of
this Court rendered by a Division Bench in Rajappan v. State of
Kerala10.
i) To highlight the procedural flaws committed by the learned Sessions
Judge in ignoring the final report laid by the Crime Branch and the
evidencerecordedrelianceisplacedonthejudgmentsinVinayTyagiv
Irshad AliAliasDeepak&Ors.11 andVinubhaiHaribhaiMalaviya
v State of Gujarat12.
12.3. Sri. Pirappanagode Sudheer, learned counsel for the 5th accused,
advanced the following submissions:
a) The records disclose that Crime No.703 of 2005 of Fort Police Station
wasregisteredat8:00p.m.on27.09.2005bySub-InspectorRaveendran
Nair (PW15) under Sections 41(1)(d) and 102 of the Cr.P.C against
Udayakumar and Suresh Kumar, based on Exts. P18 and P19.
Raveendran Nair investigated the matter on 28.09.2005, questioned
10
(1981 KLT 41)
11
(2 013) 5 SCC 762
12
(2019) 17 SCC 1
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severalwitnesses,andthereaftertheinvestigationwastakenoverbythe
Narcotic Cell. At no stage, either before the Narcotic Cell ortheCBCID
on 10.10.2005, did he state that the case registration, General Diary
entries, or otherdocuments,includingtheremandapplicationofSuresh
Kumar, were prepared at the instigation of the 5th accused along with
the Circle Inspector and Assistant Commissioner of Police.
b) PW15,RaveendranNair,admittedpreparingExt.P23remandapplication
dated27.09.2005andentrustingUdayakumarandSureshKumarat8:30
p.m. to sentry P.C. Ramachandran, whowasondutyfrom8:00p.m.to
10:00 p.m. Ext. P4 General Diary (MO5 in S.C.No.1542/2006)records
that Udayakumar and Suresh Kumar were interrogated at the Circle
Inspector's office until 8:00 p.m., and that he remained at the Police
Station until 9:00 p.m. on 27.09.2005. Thiswouldgoagainsttheentire
case set up by the prosecution.
c) As regards further investigation, the learned counsel contended that
pursuanttothedirectionsofthisCourt,theCBIwasempoweredonlyto
conduct further investigation in both Crime No.704 of 2005 and Crime
No.703 of 2005. In both cases, report had been laid before the
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jurisdictional Magistrate. The trialhadcommencedinCrimeNo.704of
2005 and as many as 34 witnesses had been examined. Since both
crimes arose from the same transaction andwereinseparable,theonly
lawfulcoursewastofileasupplementalreportaftersuchinvestigationin
Crime No. 704 of 2005 before the Additional Sessions Court (Fast
Track-III), Thiruvananthapuram, and likewise file a supplemental report
under Section 173(8) Cr.P.C. in Crime No. 703 of 2005 (RC
5/S/2008/CBI/SCB/Chennai)beforetheMagistrateCourtwheretherefer
report was laid. However, contrary to the aforesaid mandatory
requirement, the CBI filed the charge sheet in RC
10/S/2007/CBI/SCB/Chennai before the Chief Judicial Magistrate,
Ernakulam under Section 173(8) CrPC, allegingoffencesunderSections
323, 331, 348, 302 r/w. Section 34 IPC and Section 120B r/w.Sections
201, 116, and 193 IPC as against A1 to A3, and under Sections 120B
r/w.Sections201,331,348,302,116,and193IPCasagainstA4toA14.
Theappellantandthe4thaccusedwerearrayedasaccusedNos.13and
14, while Raveendran Nair figured as the 4th accused alongwithother
subordinate Police Officers of the Fort Police Station, Assistant Sub
Inspectors, Head Constables, and Women Constables, who were
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responsible for making entries in the Station records connected with
Crime No. 703 of 2005. The CBI, in a calculated move to fabricate
evidenceandfalselyimplicatetheappellant,initiallyarrayedA4toA14in
additiontotheprincipaloffenders,A1toA3(Jithakumar,Sreekumar,and
P.C.Soman),againstwhomthecoreallegationwascustodialtortureand
murder of Udayakumar. Despite theabsenceofevenaprimafaciecase
against the 5th accused, the CBI included various officers as accused,
first adding P. Raveendran Nair and C.R. Heeralal on 19.05.2009; then
Thankamani, Ramachandran, Sheeja Kumari,andSajithaon22.07.2009
in RC 5/S/2008/CBI/SCB/Chennai; and subsequently, on 23.07.2009,
againincludingP.RaveendranNair,Heeralal,andSureshKumar,followed
by George, V.P. Mohanan, Thankamani, Ramachandran, Sheeja, and
SajithainRC10/S/2007.StatementsunderSection164Cr.P.Cwerethen
procured from these persons, who were coerced into falsely deposing
thattheStationrecordsweremanipulatedattheinstanceofthe4thand
5th accused, withtheobjectofscreeningtheprincipaloffenders.These
coerced statements formed the sole foundation of the charges levelled
againstthe4thand5thaccused.Itissubmittedthatthecourseadopted
by the CBI is against the directions issued by this Courtwhileordering
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further investigation and the principles of law laid down by the Apex
CourtinVinayTyagi(supra),DharamPalv.StateofHaryana13 and
Vinubhai(supra).
d) When the supplementary report was required to be filed before the
Additional Sessions Judge (Fast Track Court- III), Thiruvananthapuram,
and when that court alone possessed thelawfulauthoritytoadjudicate
upon the two conflicting reports, one submitted by the CBCID and the
other by the CBI, the very transfer of the case to the Special Court
(SPE/CBI), Thiruvananthapuram, was patently illegal. Once the latter
court lacked jurisdiction to entertain the matter, all proceedings
undertakenthereafter,subsequenttothevalidcommittalpendingbefore
the Additional Sessions Judge (Fast Track-III), Thiruvananthapuram,
stand vitiated and are void ab initio.
e) The learned counsel argues that there cannot legally be two or more
committalsinrespectofthesamecase,evenwherefurtherinvestigation
has been conducted, irrespective of the status or identity of the
investigatingagency.Accordingtohim,theSpecialJudge(SPE/CBI)had
noauthoritytoprosecutetheaccused,letaloneactuponordersgranting
13
[(2014) 3 SCC 306]
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pardonthatwereissuedbyanincompetentcourt.Theentireprocessof
granting such pardon, accordingtothelearnedcounsel,wasvitiatedby
procedural illegality, lack of jurisdiction, and absolutenon-applicationof
mind.
f ) It is submitted that, apart from the tainted, false, and fabricated oral
versions extracted under Section 164 Cr.P.C., thereisnothingonrecord
toevenprimafaciesuggesttheinvolvementoftheappellantoraccused
Nos. 4 to 6. No documentary evidence worth the name exists to
corroboratetheseallegations.Significantly,thesestatementsweremade
afteralongdelayduringwhichperiodtheverysamepersonshadgiven
multiplestatementstosuccessiveinvestigatingofficersinthesamecrime
and had deposed on oath during the trial of S.C. No. 1542 of 2006,
without oncealleginganyinstigationorinfluenceinconnectionwiththe
registration of Crime No. 703 of 2005.
g) It is forcefully argued that the conduct of the CBI in implicating the
accused Nos. 4 to 6 is a gross abuse of process. Initially, subordinate
police officers were arrayed as accused; some were even remanded to
custody. UnderthethreatofcontinuedimplicationintheSessionsCase,
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and succumbing to such coercive tactics, they werecompelledtomake
statementsunderSection164Cr.P.Cfalselyimplicatingtheappellantand
others. Once theCBIsecuredthesemanufacturedstatements,itmoved
applications under Section 306 CrPC to tender pardon to these
witnesses, converting them into approversandensuringtheirtestimony
would be tailored to the CBI's version. The mala fides inthiscourseof
action are writ large, revealing that the entire exercise was driven by
oblique motives rather than a genuine quest for truth.
h) The learned Chief Judicial Magistrate had no jurisdictionorauthorityto
entertainpetitionsunderSection306CrPC,muchlesstograntpardonto
the aforesaid persons. Once the matter had been committed to the
Sessions Court and thetrialcommencedonthebasisofthefinalreport
filed under Section 173(2) Cr.P.C by the CBCID, the power to tender
pardon vested exclusively with the Sessions Judge under Section 307
Cr.P.C. Consequently, the orders passed by theChiefJudicialMagistrate
granting pardon are without jurisdiction, null, and voidabinitio.Atany
ratetheCBIcouldnothavesoughttograntpardontoRaveendran,who
wasarrayedasaccusedNo4,becausehe wasalreadymadeanaccused
invoking Section 319 Cr.P.C. by the Trial Court, whichorderwasupheld
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by this Court.
13. Sri. S.Sreekumar,thelearnedcounsel,asinstructedbySri.Martin
Jose, the learned counsel, who appeared for the 6th accused, took usthrough
thematerialsandrecordandalsotheevidencetenderedbythewitnessesinthe
case and made the following submissions:
a) TakingusthroughthedepositionsofPW1,PW5,andPW15toPW18,and
PW21,itisurgedbySri.SreekumarthattheCBIhadthrownestablished
procedure to the winds and fabricated a false narrative wholly at
variance with the final reportsubmittedbytheCBCID.Hedrewspecific
attention to the manner in which PW15, Raveendran, who had earlier
been examined as PW11, was subsequently arrayed as an accused by
invoking Section 319 of the Cr.P.C., which order was confirmed by this
Court in W.P.(C) No. 24258 of 2007. He further argued on the legal
implicationsoftheorderpassedbyalearnedSingleJudgeofthisCourt,
dismissing the CBI's petition seeking to efface the earlier records and
evidence. According to him, the order permitted only a "further
investigation" and not a "fresh investigation" or "reinvestigation,"
whereas the CBI, inthepresentcase,hadinfactproceededtoconduct
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what was effectively a reinvestigation, thereby acting in excess of its
authority and in contravention of the Court's directions.
b) ThelearnedcounselalsoplacedrelianceonthejudgmentoftheHon'ble
SupremeCourtinStatethroughCentralBureauofInvestigationv.
Hemendhra Reddy & Another14, to emphasise the well-recognised
distinction between "further investigation" and "reinvestigation." It was
arguedthat,contrarytothedirectionsissuedbythisCourt,theCBIhad,
in fact, undertaken a reinvestigation in the matter, thereby acting in
excess of its mandate and in breach ofthejudicialordergoverningthe
scope of its powers.
c) Relying on the observations of the Hon'ble Supreme Court in A.
Devendran v. State of Tamil Nadu 15, the learned Senior Counsel
contendedthat,asonlyafurtherinvestigationhadbeenorderedandthe
trial pending before the Sessions Court had been stayed, the CBI was
legallyboundtofileanyapplicationunderSection307oftheIPCbefore
the Additional Sessions Court (Fast Track III)Thiruvananthapuram,and
not before the Chief Judicial Magistrate, Ernakulam. It was urged that
14
[ 2023 SCC ONLINE SC 515]
15
[(1997) 11 SCC 720]
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the grant of pardon in the present case, having been made by acourt
lacking jurisdiction, standsvitiatedandconstitutesadefectwhichisnot
amerecurableirregularitybutasubstantiveillegalitygoingtotherootof
the matter.
d) The learned counsel further referred to the cross-examination of PW5,
wherein it was elicited that he was not present when the 6th accused
allegedly had a conversation with PW15, andthathisknowledgeofthe
samewaspurelyhearsay.Accordingtothelearnedcounsel,neitherPW5
nor PW15, in theirtestimoniesbeforetheCourt,madeanyreferenceto
the involvement of A6, thereby rendering theallegationagainstthe6th
accused unsubstantiated by direct evidence.
e) Non-examination of Shaheer, the officer who had gone to fetch
RaveendranNairandMohananChettiyar,whowassummonedtoprepare
the draft FIR, is fatal, contends the learned counsel.
f ) Lackofcorroborationoftheevidencegivenbyapproversbyindependent
evidence is yet another argument advanced by the learned counsel.
g) The learned counsel would then take us through the evidence ofPW5,
15,16,17,18,21and47,anditisarguedthattheevidencepointingto
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the involvement of the 6th accused is shaky and could not have been
relied upon.
14. Sri. K.P. Satjeesam, the learned Senior Counsel appearing for the
CBI, advanced the following submissions:
a) ThisisacasewhereinapersonwastakenintocustodybyaccusedNos.1
and2andwastorturedbrutallywiththeassistanceofA3resultinginhis
death on the same day at the Medical College Hospital. Since the
incident took place within the four walls of the office of the Circle
Inspector, the prosecution hadtorelyontheevidenceofPoliceOfficers
tobringoutthetruth.However,allmeasuresweretakenbytheofficers
to screen the offender and tomanipulatetherecordsmaintainedinthe
police station. The investigation conducted earlier by the CBCID was a
farce and it was after taking note of the same that this Court had
entrusted the investigation with the CBI. The CBI conducted a
comprehensive investigation and found the involvement of the Senior
Police Officers and the passiveinvolvementoftheofficerswhowereon
duty. As many as 8OfficerswhowereondutyapproachedtheCBIand
requested that they be made approversandundertookthattheywould
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speak the truth. Itwasinthesaidcircumstancesthatapplicationswere
filed to tender pardon to the said accused which was allowed by the
Court on conditions. It is submitted that the approvers who were
examined as PW1, PW3, PW5, PW15 to PW18 came before court and
statedindetailthemannerinwhichtheaccusedNos.1and2 hadtaken
into custody of Udayakumar and was tortured by A1 to A3. They had
also stated the manner in which accused Nos. 4 to 6 threatened and
forcedtheirsubordinatePoliceOfficerstonarrateafalseversionintune
with the fabricated records prepared at theirinstance.Accordingtothe
learnedcounsel,thelearnedSessionsJudgehadrightlyreliedupontheir
evidence to arrive at the finding of guilt.
b) The contention advanced by the learned counsel appearing for the
appellants that the CBI had violated the directions issued bythisCourt
and conducted a re-investigation was vehemently denied. According to
the learned counsel, after taking over investigation as ordered by this
Court,theCBI,aspertheprocedure,isrequiredtore-registerthecrime
andsubmitareportbeforetheCJM,Ernakulam,whichisthedesignated
court as per GovernmentNotificationdated2.12.1974.Aftercompleting
the investigation, the final report was laid and the CJM Ernakulam
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committed the case to the Court of Session, Ernakulam. The Sessions
Court made over the case to the CBI Special Court, Ernakulam. After
establishment of the CBI Court at Thiruvananthapuram, the Case was
transferred to the CBI, Special Court, Thiruvananthapuram by order
dated 14.3.2012.
c) Insofar as the contention that the CBI had erred in not submitting the
Supplementary report before the Court where S.C.No.1542/2005 was
pending, it is submitted that this Court had stayed the proceedings to
avoid conflict of decisions. It is submitted that when investigation was
handedovertotheCBI,theycanonlyfollowtheirprocedure,whichwas
done in the instant case.
d) There is no irregularity in the procedure followed by the Special Judge
(SPE/CBI)intryingthematteronthecasebeingcommittedbytheCJM,
Ernakulam. The accused Nos. 4 and 5 had approached this Courtand
had preferred Crl.R.P.No. 1170 of 2015 challenging the procedure
followed by the CBI in registering a Crime and in submitting a
supplementaryfinalreportbeforetheCJM,Ernakulam. Thecommittalof
the case totheCourtofSession,Ernakulam,wasalsochallenged. This
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Court rejected the prayer, taking note of the law laid down in Vinay
Tyagi (supra) and held that the practice of the CBI to register afresh
FIRandthefilingofthefinalreportbeforetheChiefJudicialMagistrate,
Ernakulam, was legal. In view of the said order,theappellantscannot
be heard to contend that any prejudice has been caused.
e) Itisfurthersubmittedthatthe3rdaccused,oneSoman,hadapproached
this Court and had filed Crl.M.C.Nos.3189 of 2014 and 3083 of 2014
challenging the order passed by the learned Sessions Judge ordering
joint trial of S.C.No.916 of 2012 and S.C.No.917 of 2012 and also the
order arraigning him as the 7th accused in S.C.No.917 of 2012. This
Court, after considering the facts and circumstances, disposed of the
matter by judgment dated 09.01.2015 with specific directions to the
learned Special Judge to proceed with the matter in terms of the
directions issued in the order. Thereafter, the accused No. 4 (Ajith
Kumar) and accused No.5 (Sabu) had approached this Court and had
filedCrl.R.P.No.1170of2015seekingtoquashthecommittalproceedings
andforquashingthecharge.ThisCourt,byjudgmentdated31.3.2016in
Crl.R.P.No.1170 of 2015, repelled the contentions, holding that the
registration of crime by the CBI and the submission of the final report
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before the Jurisdictional Magistrate is legal.
f ) According to the learned counsel, the principles of law laid down in
Devendran (supra) were not violated as the reports were filed before
the CJM, Ernakulam, and as the stage was before committal, only the
CJM could have considered the application for tender of pardon.
g) It is urged that the learned SessionsJudgehadevaluatedtheevidence
in a proper manner and has arrived at the finding of guilt. It is also
arguedthattheoffencecommittedbythe1staccusedissoheinousthat
aninnocentmanwastakenintocustodyandhisthighskneadedwithan
iron rod, thattheoffencewouldfallintotherarestofrarecategoryand
no interference is warranted.
15. Wehavecarefullyconsideredthesubmissionsadvancedandhave
carefully gone through the records.
16. Whether the trial can be held to be vitiated
16.1. We shall first deal with the contention advanced by the counsel
appearingfortheaccusedthattheCBIhasactedagainstthedirectionsissuedby
this Court while ordering further investigation and the trial and conviction has
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been vitiated. We shall also consider the contention as regards the legality of
registering a fresh FIR and submitting final report before the Sessions Court,
Ernakulamwhenwhatwasorderedwasfurtherinvestigationinacasewheretrial
had commenced before the Sessions Court which was stayedforsubmissionof
the supplementary report.
16.2. As stated earlier, final report was filed by theCBCIDinCrimeNo.
704of2005registeredattheFortPoliceStationbeforetheJudicialMagistrateof
First Class-III, Thiruvananthapuram and committal proceedings was initiatedas
C.P.No 21 of 2006. The accused were Jitha Kumar (A1), Sreekumar (A2) and
Soman(A3).Theywerechargedforhavingcommittedoffencespunishableunder
Sections 331, 302 r/w. Section 34 of the IPC. The case was committed to the
CourtofSession,ThiruvananthapuramandthesamewasmadeovertotheCourt
oftheAdditional SessionsJudge(FastTrack-III),Thiruvananthapuram.InCrime
No.703 of 2005, a refer report was filed by the police.
16.3. Trial commenced in S.C.No.1542 of 2006, and as many as 34
witnesses wereexamined.RaveendranNair,whowasexaminedasPW15inthis
case, was examined as PW11 in S.C.No.1542 of 2006. The learned Sessions
Judge invoked Section 319 of the Cr.P.C. and felt that he was also intimately
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involved in the commission of the offence. The Sessions Court proceeded to
array him as the 4th accused in the case. This order was challenged by
Raveendran Nair before this Court by filing Crl.R.P. No.2902 of 2007. In the
meantime, the mother of the deceased approachedthisCourtandfiledW.P.(C)
No.24258 of 2007, requesting to hand over the investigation to the CBI. Both
these matters came up before a learned Single Judgewhofeltthatthoughthe
case was one which the CBI oughttocarryoutinvestigation,inviewofcertain
precedentsthatonlytheagencywhichcarriedouttheearlierinvestigationcould
carry further investigation referred the matter for an authoritative
pronouncement. The matter was heard by a Division Bench of this Court. The
relevantportionofthejudgmentinJ.PrabhavathiammavStateofKerala16
reads as under:
"17......After going through the evidence already on record,
we have already held that the Court was justified on evidence
adducedbeforeitinimpleadingthereviewpetitionerasanaccused.
We see no infirmity in the orderpassedunderS.319.Itcannotbe
statedthatthereisnoprimafaciecaseagainsthim.Hence,Crl.RP
is dismissed. But, wearenotexpressinganyopiniononthemerits
of the matter as it is for the TrialCourttodecidethematterafter
consideringtheevidence.Wehavealreadyfoundthatthiscaseisa
fit case which CBI should conduct further investigation as police
16
(2008 (1) KLJ 9)
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officersareaccusedinthecaseandfromtheavailablematerials,we
are of the prima facie opinion that in this case colleagues in the
policeforcearemoreinterestedinprotectingtheaccusedinsteadof
doingjusticeorconductingproperinvestigationaccordingtolaw.It
is true that in all cases where CBI enquiry is ordered it is not
necessarytostaythetrialwhichisinprogress.But,inthenatureof
the case, it isnecessarythatfurtherproceedingsoftheTrialCourt
needbestartedonlyafterCBIfilesfurtherreportanditisafitcase
to allow the writ petition filed by the mother of the deceased by
referring the matter to CBI. Hence, we direct the CBI to conduct
further investigation as expeditiously as possible." (emphasis
supplied)
16.4. For clarity, we shall summarise the general observations made by
this Court in the above judgment:
a) If the facts warrant, to do justice and to install confidence in the public
mind, in appropriate cases, the High Court can allow the C.B.I.tofurther
investigate the crime.
b) There is no infirmity in the order passed under section 319 of the
Cr.P.C.arraying Raveendran Nair as the 4th accused.
c) Thoughordinarily,incaseswhereCBIenquiryisordered,itisnotnecessary
to stay the trial which is in progress, in the nature of the case, it is
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necessary that further proceedings of the trial court need be started only
after CBI files further report.
17. This Court, in clear terms, directed the CBI to carry out further
investigationandnotre-investigation.WhilepassingthejudgmentthisCourtwas
guidedbytheobservationsinGudalureM.JCherianAndOthersv.UnionOf
India And Others17, wherein in identical circumstances, further investigation
was ordered in a case pending before the Sessions Court and the Apex Court
alsorejectedtheprayertotransferthecriminalcasefromthefileofIXAdditional
Sessions Judge, Moradabad to some other court. In the light of the above, all
that the CBI could have done is to conduct further investigation and submit a
supplementary report before the Additional Session Judge (Fast Track-III),
Thiruvananthapuram, where S.C.No.1542 of 2006 was pending.
18. Instead of complying with the directions issued by this Court,the
CBI reregistered fresh FIR and then proceeded to array the officers who were
presentinthePoliceStationonthesaiddayandwhohadallegedlymanipulated
therecordsasaccused.Thereafter,applicationswerefiledbeforetheMagistrate
Court to tender pardon to them on condition that they make a full and true
disclosureoftheeventsandtheinvolvementofthepresentaccused.Pardonwas
17
[(1992) SCC 1 397]
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granted by the CJM Ernakulam, and thereaftertheinvestigationwascompleted
and a final report styled as a supplementary report was laid before the CJM,
Ernakulam arraying additionallytheaccusedNos.4to6inthisCase.Committal
proceedingswereinitiatedbytheCJM,ErnakulambynumberingR.C.5/S/2008as
C.P.No.8/2010 and R.C.10/S/2007 as C.P.No.9/2010 on the file of the Chief
JudicialMagistrateCourt,ErnakulamandthecaseswerecommittedtotheCourt
of Session.
19. It was after ignoring the earlier committal that a fresh committal
orderwaspassedbytheCJM,Ernakulam. TheSessionsCourt,Ernakulam,made
overthecasetotheSpecialJudge,CBI,Ernakulam. Whileso,intermsofO.M.
No.61340/2009dated14.03.2012ofthisCourt,thecasewasmadeovertothe
newly established Special Court, CBI, Thiruvananthapuram. It was when the
case was taken up for framing charges that the learned Sessions Judge noted
that the main case viz S.C.No.1542 of 2006, was still pending before the
Additional Sessions Court (Fast Track-III), Thiruvananthapuram. The learned
Sessions Judge found that the only material available before the courtwasthe
supplementary chargesheet filed by the CBI after conducting further
investigation. The learned Sessions Judge noted that the prosecution had not
takenanyeffortwhatsoevertogetS.C.No.1542of2006transferredtotheCourt
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of the Special Judge, CBI, Thiruvananthapuram. In the said circumstances, a
request was made to the High Court to consider the feasibility of transferring
S.C.No.1542 of 2006 pending before the Additional Sessions Court (Fast
Track-III), Thiruvananthapuram, to the Special Judge (SPE/CBI),
Thiruvananthapuram. Onreceiptoftherequest,thecasewasmadeovertothe
CBIcourtasperO.M.dated27.08.2013ontheadministrativeside.Thequestion
is whether the committal of the case yet again is in order.
20. In Dharam Pal (supra), a reference was made by a Bench of
Three Judges to the Constitution Bench and one of the questions that was
referred was whether the judgment in Ranjit Singh v. State of Punjab 18,
whichsetasidethedecisioninKishunSinghandOthersv.StateofBihar19,
wasrightlydecidedornot.ThefactsofthecasewerethatanFIRwasregistered
against one Nafe Singh and certain others for commission of offences under
Sections307and323r/w.Section34oftheIPC.ThePolice,afterinvestigation,
submitted its report under Section 173(2) of the Cr.P.C. before the Magistrate
sending only Nafe Singh for trial while including the names of the others in
Column 2 of thereport.Onreceiptofsuchpolicereport,theMagistratedidnot
straightaway commit the case to the Sessions Courtbut,onanobjectionbeing
18
[(1998) 7 SCC 149]
19
[ (1993) 2 SCC 16]
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raisedbythecomplainant,issuedsummonstotheaccusedwhowereleftoutto
face trial with Nafe Singh as the Magistrate was convinced that a prima facie
case to go for trial had been made out against the appellants as well. Among
variousquestionsthatwasposedbeforetheConstitutionBenchwasthequestion
astowhethertheSessionsJudgecouldissuesummonsunderSection193Cr.P.C.
as a court of original jurisdiction after committal. Another question was
whether onthecasebeingcommittedtotheSessionsCourt,couldtheSessions
Judge issue summons separatelyunderSection193Cr.P.C.orwouldhehaveto
waittillthestageunderSection319Cr.P.Cwasreachedinordertotakerecourse
thereto. The Apex Court, after noting the provisions of the Cr.P.C. observed as
follows in paragraph Nos. 38 and 39 of the judgment:
"38. Section 193 of theCodespeaksofcognizanceofoffences
by the Court of Session and provides as follows:
"193.Cognizance of offences by Courts of Session.--Except as
otherwiseexpresslyprovidedbythisCodeorbyanyotherlawforthe
timebeinginforce,noCourtofSessionshalltakecognizanceofany
offence as a court of original jurisdiction unless the case has been
committed to it by a Magistrate under this Code."
The key words in the section are that "no CourtofSessionshall
take cognizance of any offence as a court of original jurisdiction
unless thecasehasbeencommittedtoitbyaMagistrateunderthis
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Code". The above provision entails that a case must, first of all,be
committed to the Court of Session by the Magistrate. The second
condition isthatonlyafterthecasehadbeencommittedtoit,could
the Court of Session take cognizance of the offence exercising
originaljurisdiction.Although,anattempthasbeenmadebyMrDave
to suggest that the cognizance indicated in Section 193 deals not
with cognizance of anoffence,butofthecommitmentorderpassed
by the learned Magistrate, we are not inclined to accept such a
submission in the clear wordings of Section 193 that the Court of
Session may take cognizance of the offences under the said section.
39. This takes us to the next question as to whether under
Section 209, the Magistrate was required to take cognizance of the
offencebeforecommittingthecasetotheCourtofSession.Itiswell
settledthatcognizanceofanoffencecanonlybetakenonce.Inthe
event, a Magistrate takes cognizance of the offence and then
commits the case to the Court of Session, the question of taking
fresh cognizance of the offence and, thereafter, proceed to issue
summons,isnotinaccordancewithlaw.Ifcognizanceistobetaken
of the offence, it could be taken either by the Magistrate orbythe
Court of Session. The language of Section 193 of the Code very
clearly indicates that once the case is committed to the Court of
Session by the learned Magistrate, the Court of Session assumes
original jurisdiction and all that goes with the assumption of such
jurisdiction. TheprovisionsofSection209will,therefore,havetobe
understood as the learned Magistrate playing a passive role in
committing the case to the Court of Session on finding from the
police report that the case was triable by the CourtofSession.Nor
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can there be any question of part cognizance being taken by the
Magistrate and part cognizance beingtakenbythelearnedSessions
Judge.(emphasis supplied by us)
21. In terms of Section 193 of the Cr.P.C., onceacaseiscommittedto
theCourtofSession,theSessionsCourtassumescognizanceoftheoffenceasa
Courtoforiginaljurisdiction.Uponsuchassumption,theSessionsCourtisvested
with all the powers that accompany theexerciseoforiginaljurisdiction.Clearly,
the power to direct further investigation falls within the scope of such
jurisdiction. The conferment of original jurisdiction necessarily includes
supervisory powers over investigation, which is precisely the power exercised
while ordering further investigation. The Sessions Court could have ordered
further investigation by the same agency in an appropriate case and the
investigatingofficeralsocouldhavesoughtpermissionfromtheSessionsJudge.
InviewofSection209oftheCr.P.C.,theroleofaMagistrateafterthecommittal
ofthecaseislimitedasaftercommitment,theMagistratewouldbecomefunctus
officio and is not entitled to pass any orders on the case which has been
committed.
22. ItcannotbesaidthattheCBIwasunawareoftheconsequencesof
notabidingbytheprovisionsoftheCr.P.C.andnotcomplyingwiththedirections
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issued by the Division Bench in Prabhavathiamma (supra). They proceeded
withtheinvestigationasifitwasafreshinvestigationignoringthedirectivesand
thenproceededtofileafinalreportbeforetheCJMErnakulam.Aftersubmission
ofthefinalreportasaforesaidinbothcases,theCBIapproachedthisCourtand
filed Crl.M.C. No. 4957 of 2010. In the petition filed under Section 482 of the
Cr.P.C., the prayer sought by the CBI was to quash the charge framed by the
Sessions Court in S.C.No.1542 of 2007 and to effacetheentireevidencewhich
hadalreadybeenrecordedintheSessionsCourtandthe161statementsofthe
witnesses who,accordingtothem,didnotsupporttheprosecution.Itwouldbe
profitabletorefertotherelevantportionsofthejudgmentofthelearnedSingle
Judge in Central Bureau of Investigation v.JithaKumarandothers20 to
understand the attempts made by the CBI to clear the mess they had created.
The above petition has been filed under Section 482 of the
Code of Criminal Procedure, for short, the 'Code' to quash
Annexure-A2 charge framed by the learned Sessions Judge, Fast
Track-III, Thiruvananthapuram in S.C.No.1542 of 2006 and toorder
de novo trial in the case on the basis of the report filed in
RC.10/S/07/CBI/SCB/Chennai.
xxxxxx xxxxx xxxxxxx
4. LearnedStandingCounselappearingfortheCBIadverting
20
[(2012:KER:25748)]
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to the circumstances under which investigation over the death of
UdayakumarwashandedovertothatagencybyorderofthisCourtin
awritpetition,contendedthatthisCourthastoexerciseitsinherent
powers to grant thereliefscanvassedinthepetitiontopreservethe
justice delivery system. A de novo trial on the basis of the
supplementary charge filed by the C.B.I in the case, with direction
that the evidence given by some oftheaccusedpersons,whohave
beenlateracceptedasapproverswhenexaminedaswitnessesinthe
previous trial, and also their 161 statements previouslyrecordedby
thelocalpoliceandC.B.C.I.D,arenottobeconsideredinthetrialto
be proceeded afresh, is the submission of the Standing counsel.
RelianceisplacedbythecounselinDineshDuttJoshiv,TheStateof
Rajasthan and another 2001SCC8570, ZahiraHabibullaH.Sheikh
and another v, State of Gujarat and others (2004 CrLLJ 2050) and
Joseph v Antony (2012 (2) KLT 517)tocontendthattodorealand
substantial justiceandtopreventabuseofprocessofthecourt,this
Court has to invoke its inherent power to order de novo trial with
direction as aforesaid.
xxxxxxx xxxxxx xxxxxx
5. Th
ere is no dispute that what was ordered in the writ
petition filed by the mother of the victim by this Court is further
investigationofthecrimebytheC.B.Iwhilethetrialofthecasewas
in progress. Now after further investigation, a retrial ofthecaseon
the basis of the report filed by the C.B.I eschewing from
consideration whatever evidence collected during the previous trial
and also the 161 statements recorded by the previousinvestigating
agencyhastobeorderedisthecaseofthepetitioner/C.B.Iinvoking
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theinherentjurisdictionofthisCourtunderSection482oftheCode.
Even assuming that there were latches andperhapsevenreasonto
hold that the previousinvestigationdoneinthecrimewasfaultyfor
one reason or other, it does not follow that 161 statements of the
witnesses questioned during the previous investigation and the
evidence recorded before the court can be totally discarded from
consideration.ThisCourthasorderedonlyfurtherinvestigationofthe
crime and not re-investigation of the crime. A de novo trial of the
caseeschewingtheevidencerecordedintheprevioustrialcanvassed
by the C.B.I is not allowable. Some of the accused named by the
C.B.I after investigation have turned tobeapproversandpreviously
theyhadgivenconflictingversionsintheirevidencebeforethecourt
as against the evidence as approvers, is the plea canvassed for
orderingsuchdenovotrial.Afterfurtherinvestigationorderedbythis
Court, when a report has been filed including additional accused;
whethertheyhavebecomeapproversornot,andotheroffencesnot
included earlier are also levelled against accused persons
framing/altering of charges afresh by the court is inevitable. As
rightly contendedbythelearnedcounselfortherespondents,atrial
hastocommenceafreshonfreshchargessoframed.What,ifany,is
thevaluetobeattachedtotheevidencerecordedfromanywitnesses
previously examined in relationtoevidencetobeletinthroughhim
inthetrialtobeproceededwithafterframingofchargesonthebasis
ofthesupplementaryreportfiledbytheC.B.Iisamatterwhichfalls
within the appreciation of evidence by the court. Similarly, 161
statements recorded from anyofthewitnessesduringthecourseof
investigationpreviouslydonebythelocalpolicecanbeusedonlyfor
the purpose of contradiction if the maker of such statement is
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examined as awitnessbeforethecourtbytheprosecution.Noneof
thedecisionscitedbythecounselhasanyapplicationtothefactsof
the case. In Zahira Habibulla H. Sheikh's case, cited supra, where
retrialwasordered,theApexCourthasheldthattheabovecasewas
one without parallel and stood on its own as an exemplary one
demandingaretrialofthecase.Incaseswherefurtherinvestigation
isorderedbythisCourt,itcannotbecontendedthatsincetherewas
defective investigation earlier evidence, if any, collected before the
courtpreviously,andalso161statementsrecordedfromthepersons
questioned during the previous investigation, should be eschewed
from consideration in the trial proceeding on the supplementary
report. In Dinesh Dutt Joshi's case, cited supra, what has been
dilated upon isonlytheambitandscopeofpowersenjoinedbythis
CourtunderSection482oftheCode,which,inthegivenfactsofthe
case, would no way assist the petitioner C.B.I to sustain the case
canvassedof.Similarly,Joseph'scase,referredtosupra,renderedby
thisCourtorderingfurtherinvestigationwithsomedirectionshowitis
tobeproceededwithistotallyinapplicabletothequestionsinvolved
in the present petition. There isnomeritinthepetitionfiledbythe
C.B.I, and the Crl.M.C. is dismissed(emphasis supplied)
23. This Court, while dismissing the prayer, observed as under:
a) What hasbeenorderedbytheDivisionBenchinW.P.(C)No.24258of
2007 is further investigation of thecrimebytheC.B.I,whilethetrial
of the case was in progress and not re-investigation of the crime.
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b) Even assuming that there were latches and perhaps even reason to
hold that the previous investigation done in the crime was faultyfor
one reason or other, it does not follow that 161 statements of the
witnesses questioned during the previous investigation and the
evidence recorded before the court can be totally discarded from
consideration.
c) A de novo trial of the case, eschewing the evidence recorded in the
previous trial as canvassed by the C.B.I is not allowable.
d) After further investigation ordered by this Court, when a report has
been filed including additional accused, whether they have become
approvers or not, and other offences not included earlier are also
levelled against accused persons, framing/altering of charges afresh
by the court is inevitable.Thetrialhastocommenceafreshonfresh
charges framed.
e) Thevaluetobeattachedtotheevidencerecordedfromanywitnesses
previouslyexaminedinrelationtoevidencetobeletinthroughhimin
thetrialtobeproceededwithafterframingofchargesonthebasisof
the supplementary report filed by the C.B.I is a matter which falls
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within the appreciation of evidence by the court.
f ) TheprinciplesoflawlaiddowninZahiraHabibullaH.Sheikhand
another v. State of Gujarat and others21 has no application.
24. This view takenbythelearnedSingleJudgeisclearlyintunewith
the observationsoftheApexCourtinVinayTyagi (supra),whereintheentire
case law with regard to the procedure to be followed while ordering further
investigation and re-investigation was considered and laid down. Reference to
paragraph Nos. 22 and 23 of the judgment would be profitable.
"22. 'Further investigation" is where the investigating officer
obtains further oral or documentary evidence after the final report
has been filed before the court in terms of Section 173(8). This
powerisvestedwiththeexecutive.Itisthecontinuationofprevious
investigation and, therefore,isunderstoodanddescribedas"further
investigation". The scope of such investigation is restricted to the
discoveryoffurtheroralanddocumentaryevidence.Itspurposeisto
bringthetruefactsbeforethecourteveniftheyarediscoveredata
subsequent stage to the primary investigation. It is commonly
described as "supplementary report". "Supplementary report" would
be the correct expression as the subsequent investigation is meant
and intended to supplement the primary investigationconductedby
the empowered police officer. Another significant feature of further
21
(2004) 4 SCC 158
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investigationisthatitdoesnothavetheeffectofwipingoutdirectly
or impliedly the initial investigation conducted by the investigating
agency. This is a kind of continuation of the previous investigation.
The basis is discovery of fresh evidence and in continuation of the
same offence and chain of events relating to the same occurrence
incidental thereto. In other words, it has to be understood in
completecontradistinctiontoa"reinvestigation","fresh"or"denovo"
investigation.
23. However, in the case of a "fresh investigation",
"reinvestigation"or"denovoinvestigation"therehastobeadefinite
orderofthecourt.Theorderofthecourtunambiguouslyshouldstate
astowhetherthepreviousinvestigation,forreasonstoberecorded,
is incapable of being acted upon. Neither the investigating agency
nor the Magistrate has any power to order or conduct "fresh
investigation". This is primarily for the reason that it would be
opposedtotheschemeoftheCode.Itisessentialthatevenanorder
of "fresh"/"de novo" investigation passed by the higher judiciary
should always be coupled with a specific direction as to the fateof
the investigation already conducted.Thecaseswheresuchdirection
can be issued are few and far between. This is based upon a
fundamentalprincipleofourcriminaljurisprudencewhichisthatitis
the right of a suspect or an accused to have a just and fair
investigation and trial. This principle flows from the constitutional
mandatecontainedinArticles21and22oftheConstitutionofIndia.
Where the investigation ex facie is unfair, tainted, mala fide and
smacksoffoulplay,thecourtswouldsetasidesuchaninvestigation
and direct fresh or de novo investigation and, ifnecessary,evenby
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another independentinvestigatingagency.Asalreadynoticed,thisis
a power of wide plenitude and, therefore, has to be exercised
sparingly. The principle of the rarest of rare cases would squarely
applytosuchcases.Unlesstheunfairnessoftheinvestigationissuch
thatitpricksthejudicialconscienceofthecourt,thecourtshouldbe
reluctant to interfere in such matters to the extent of quashing an
investigation and directing a "fresh investigation".
25. In Vipul Shital Prasad Agarwal v. State Of Gujarat And
Another22, the Apex Court, referring to the observations in Narmada Bai v.
State of Gujarat23 acknowledgedthepracticeoftheCBIinregisteringafresh
FIR in a case wherein further investigation was ordered. It was observed as
follows in the judgment;
22. Therefore, the submission of Mr Sushil Kumar,
learned Senior Advocate appearing for the petitioner, that the
directions given by this Court earlier in Narmada Bai v. State of
Gujarat (2011) 5 SCC 79 would necessarily mean that the
charge-sheet submitted by the police stood implicitly rejected is
without any basis in law and misconceived. Even the fact that CBI
purported to have registered a "fresh FIR", in my opinion,doesnot
lead to a conclusion in law that the earlier report or the material
collectedbyGujaratPolice(CID)onthebasisofwhichtheyfiledthe
charge-sheetceasedtoexist.Itonlydemonstratestheadministrative
22
[AIR 2013 SC 73]
23
[( 2011) 5 SCC 79]
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practice of CBI.
23.Inmyview,notwithstandingthepracticeofCBItoregister
a"freshFIR",theinvestigationundertakenbyCBIisinthenatureof
further investigation under Section 173(8) CrPC pursuant to the
direction of this Court."
26. In the light of the law laid down inDharamPal(supra),Vinay
Tyagi(supra),VipulShitalPrasadAgarwal(supra)andthedirectionsissued
by this Court in Prabhavathiamma (supra) and in Central Bureau of
Investigation (supra), the filing of further report or supplementary charge
sheetcouldonlyhavebeeninthenatureofanincidentalproceedingtothefiling
of the main charge sheet and its filing process is expected to beinconformity
with the earlier process for consistency. It is a settled principle that the court
takescognizanceoftheoffenceandnottheoffender(See:AnilSaranv.State
OfBiharandAnother24;KalluNataliasMayankKumarNagarV.Stateof
U.P. and Another25). Cognizance of an offence can only be taken once.
Applying the principles above, a case once committed and pending before the
Court of Session, and trial having commenced, there could not have been
another committal of the very same case. There is no question of takingfresh
cognizance of the very same offence and thereafter proceeding to issue
24
[ 1996 AIR SC 204]
25
[2025 SCC OnLine SC 1606]
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summons. The language ofSection193oftheCr.P.C.veryclearlyindicatesthat
once the case is committed to the Court of Session by the learned Magistrate,
the Court of Session assumes original jurisdiction and all that goes with the
assumption of such jurisdiction. If that be the case, in the light of the
observations made by this Court while ordering further investigation and the
observationoftheApexCourtinparagraphNo.41ofVinayTyagi(supra),the
CBI could only have filed a supplementary report which ought to have been
treatedaspartoftheprimaryreport. Theprovisionsof173(3)to173(6)ofthe
Cr.P.C. would be applicable to such reports in terms of Section 173(8) of the
Cr.P.C.. AsheldinparagraphNo.42ofVinayTyagi(supra),boththesereports
havetobereadconjointly,anditisthecumulativeeffectofthereportsandthe
documentsannexedtheretowhichthecourtwillbeexpectedtoapplyitsmindto
determine whether there exists sufficient grounds to presumethattheaccused
has committed the offence. As held by this Court, the fact that there were
latches andperhapsevenreasontoholdthatthepreviousinvestigationdonein
the crime was faulty for one reason or other, a de novo trial of the case,
eschewing the evidence recorded could not have been the course that could
have been adopted. The Additional Sessions Judge (Fast Track-III),
Thiruvananthapuram, where S.C.No.1542 of 2006waspending,wasinseisinof
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the caseafterthecasewascommittedtothesaidCourt.ThisCourthadstayed
the proceedings in the said case to enable the CBI to submit supplementary
reports after further investigation before the said court. No other court could
have tried the offence in view of theexpressdirectionsissuedbythisCourton
more than one occasion. The progress of the case could only have been
controlled and determined by the Additional Sessions Judge (Fast Track-III),
Thiruvananthapuram.
27. In Ram Lal Narang v. State (Delhi Administration)26, it was
observedbytheApexCourtthatfurtherinvestigationisnotaltogetherruledout
merely because cognizance has been taken by the court. When defective
investigationcomestolightduringthecourseoftrial,itmaybecuredbyfurther
investigation, if circumstances so permitted. It was further explained that the
police should inform the court where the case is pending and seek formal
permission to make further investigation whenfreshfactscometolightinstead
of being silent over the matter keeping in view only the need foranearlytrial
since an effective trial for real oractualoffencesfoundduringcourseofproper
investigation is as much relevant, desirable and necessary as an expeditious
disposal of the matter by the courts. The mere fact that there may be further
26
[( 1979) 2 SCC 322]
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delayinconcludingthetrialshouldnotstandinthewayoffurtherinvestigationif
that would help thecourtinarrivingatthetruthanddorealandsubstantialas
well as effective justice. Going by the principles above, there cannot be any
doubt that the supplementary report after conducting further investigation can
be filed only before the Court where the case is pending and not before a
different court.
28. Though unrelated to the case on hand, it would be profitable to
note that under section 193(9) of Bharatiya Nagarik Suraksha Sanhita, while
retaining the earlier provision pertaining tofurtherinvestigationascontainedin
Section173(8)oftheCr.P.C.of1973,anewincorporationhasbeenmadebyway
ofaprovisototheeffectthatfurtherinvestigationduringtrialmaybepermitted
withthepermissionoftheCourttryingthecase.Thisprovisiongivessuchpower
to order further investigation to the Court trying the case, which in Sessions
triable cases would be the Sessions Court. Theproviso,thus,alsosupportsthe
reasoningthatrepositoryofpowertoorderfurtherinvestigationuponcommittal
of a case would be the Court of Session, where trial is pending, and the
supplementary report, if any, to be filed only before the same Sessions Court.
29. Weshallnowproceedtoexaminethefatalproceduralirregularities
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thathavearisenasadirectconsequenceoftheactionsoftheCBI.Despitebeing
entrusted with the mandate of conducting further investigation, the CBI has
failed to adhere to the explicit directions of this Court. We shall also consider
whether such non-compliance strikes at the very root of the investigative
process, rendering the proceedings fundamentally flawed and vitiating the
legitimacy of the investigation undertaken by them.
a) Insteadoffilingasupplementaryreportpursuanttofurtherinvestigationin
S.C.No.1542 of 2006 pending before the Additional Sessions Court (Fast
Track-III),Thiruvananthapuram,afinalreportstylingitasasupplementary
report was submitted before the CJM, Ernakulam, which court had no
jurisdiction to take the case on file. This is clearly against the directives
issued by this Court in Prabhavathiamma (supra), Central Bureau of
Investigation (supra) and the law laid down in Dharam Pal (supra).
MerelybecausesomeoftheaccusedapproachedthisCourtchallengingthe
legality of the committalandobtainedadverseorderswillnotbesufficient
towipeoffthedirectionsissuedbyaDivisionBenchofthisCourtrelyingon
the precedents laid down by the Apex Court.
b) After taking over the investigation, what the CBI did was array
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Sri. Thankamani, Sri. N Ramachandran, Smt. Sheeja Kumari, Smt. Sajitha
C.S. and Heeralal as the accused. Sri. Raveendran had already been
arraignedasaccusedNo.4bytheSessionsCourtbyinvokingSection319of
the Cr.P.C. After roping the above personsasaccused,theywerearrested
and immediately thereafter, separate applications were filed to tender
pardon to those accused. The said application was filed before the CJM,
Ernakulam. In fact, what had to be done by the CBI was to submit the
application under Section 307 of theCr.P.C.beforetheAdditionalSessions
Court (Fast Track-III), Thiruvananthapuram, where S.C.No.1542 of 2006
waspending,thetrialofwhichwasstayedbythisCourt.TheApexCourtin
A.Devendran(supra)hasheldthataftercommitmentoftheproceedings
only the jurisdictional Sessions Court will be entitled to consider the
applicationfortenderingofpardonunderSection307oftheCr.P.C.,andthe
CJM, which had committed the case, will not have jurisdiction to grant
pardon.ItwasfurtherobservedthatiftheChiefJudicialMagistratetenders
pardon, then that would not be a curable irregularity within the ambit of
clause(g)ofSection460oftheCr.P.C..Inthecaseonhand,asitwasthe
CJM, Ernakulam, who had granted pardon, in a case which had already
been committed, and as observed by the Apex Court, it is not a curable
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irregularity within the ambit of clause (g) of Section 460 of the Cr.P.C..
c) As far as RaveendranNairisconcerned,hewasalreadyaddedasaccused
No.4bytheAdditionalSessionsCourt(FastTrack-III),Thiruvananthapuram
in S.C. No.1542 of 2006 while the trial was pending. The said order was
confirmed by this Court. Without moving the Sessions Judge with an
application to tender pardon, an application was filed before the learned
CJM, Ernakulam, which goes against the principles of law laid down in
Devendran (supra) and Dharam Pal (supra). Only the Sessions Judge
where S.C. No. 1542 of 2006 was pending could have considered the
application for tender of pardon.
(d) TheevidencerecordedinS.C.No.1542of2006wasnotlookedintobythe
learned Sessions Judge while evaluating theevidenceinS.C.No.917/2012.
Inotherwords,theproceedingsinS.C.No.1542of2006wasnotpursued.
It was only when the learned SessionsJudgenoticedthat,apartfromthe
supplementaryfinalreport,nootherdocumentshadbeensubmittedbefore
the Special CourtforCBIcasesinS.C.No.917of2012andS.C.No.916of
2012, that a request was made on the administrative side to call for the
records in S.C. No. 1542 of 2006 to the CBI Court. Even thereafter,fresh
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evidencewasrecordedinthematter,andtheevidenceearliertakeninS.C.
No.1542of2006wascompletelydisregarded.Thisisevidentfromthefact
that the learned Sessions Judge, while trying S.C. No.917 of 2012,
proceeded to hold that all the witnesses had turned hostile, which
conclusion was incorrect. The proper course ofactionoughttohavebeen
the submission of the supplementary final report before the Additional
Sessions Court (Fast Track-III), Thiruvananthapuram, where S.C. No.1542
of 2006 was pending. The evidence, too, ought to have beenrecordedin
that very case, which had only been stayed pending investigation by the
CBI.Instead,S.C.No.916of2012andS.C.No.917of2012wereclubbed
together,andevidencewasrecordedafreshinS.C.No.917of2012.Sucha
course of action was wholly impermissible. The CBI, having sought
directionsfromthisCourtastotheproperproceduretobefollowed,could
not haveunilaterallyresortedtosuchanexercise.Asamatteroffact,this
Court, while dismissing the petition filed by the CBI, had categorically
ordered that after completion of further investigation and filing of the
report, the framing or alteration of charges afresh by the Court was
inevitable, and the trial had to commence de novo on the basis of such
fresh charges.
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30. The next question is whether the above actions would result in
failure of justice and prejudice the accused.
31. In State Of M.P v.BhoorajiAndOthers27,theApexCourthad
occasion to delve into the question as regards irregular proceedings. The
question raised was whether the absence of a committal order to the Special
Courtwouldvitiatetheentiretrialasoneconductedwithoutjurisdiction.Another
question was whether Section 465 of the Code of Criminal Procedure, 1973
would bar an Appellate court from quashing a trial for such a procedural
irregularity when "failure of justice" is demonstrated. It was observed as under:
"12. Section465oftheCodefallswithinChapterXXXVunder
the caption "Irregular Proceedings". The Chapter consists of seven
sections starting with Section 460 containing a catalogue of
irregularities which the legislature thought were not enough to axe
downconcludedproceedingsintrialsorenquiries.Section461ofthe
Code contains another catalogue of irregularities which in the
legislative perception would render the entire proceedings null and
void. It is pertinent to point out that the former catalogue contains
the instance of a Magistrate, who is not empowered to take
cognizance of offence, taking cognizance erroneously and in good
faith.Theprovisionsaysthattheproceedingsadoptedinsuchacase,
thoughbasedonsucherroneousorder,"shallnotbesetasidemerely
27
[2 001 INSC 393]
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on the ground of his not being so empowered".
13. ItisusefultorefertoSection462oftheCodewhichsays
thatevenproceedingsconductedinawrongsessionsdivisionarenot
liable to be set at naught merely on that ground. However, an
exceptionisprovidedinthatsectionthatifthecourtissatisfiedthat
proceedingsconductederroneouslyinawrongsessionsdivision"has
infactoccasionedafailureofjustice"itisopentothehighercourtto
interfere. While it is provided that all the instances enumerated in
Section461wouldrendertheproceedingsvoid,nootherproceedings
would get vitiated ipso facto merely on the ground that the
proceedings were erroneous. The court of appeal or revisionhasto
examine specifically whether such erroneous steps had in fact
occasionedafailureofjustice.Thenalonetheproceedingscanbeset
aside.ThustheentirepurportoftheprovisionssubsumedinChapter
XXXV is to save the proceedings linked with such erroneous steps,
unlesstheerrorisofsuchanaturethatithadoccasionedafailureof
justice.
14. We have to examine Section 465(1) of the Code inthe
above context. It is extracted below:
"465. (1) Subject to the provisions hereinbefore
contained, no finding, sentence or order passed byacourtof
competentjurisdictionshallbereversedoralteredbyacourtof
appeal, confirmation or revision on account of any error,
omission or irregularity in the complaint, summons, warrant,
proclamation, order, judgment or other proceedings before or
during trial or in any enquiry or other proceedings under this
Code, or any error, or irregularity in any sanction for the
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prosecution, unless in the opinion of that court, a failure of
justice has in fact been occasioned thereby."
15. A reading of the section makes it clear that the error,
omission or irregularity in the proceedingsheldbeforeorduringthe
trial or in any enquiry were reckoned by the legislature as possible
occurrences in criminal courts. Yet the legislature disfavoured axing
downtheproceedingsortodirectrepetitionofthewholeproceedings
afresh. Hence,thelegislatureimposedaprohibitionthatunlesssuch
error,omissionorirregularityhasoccasioned"afailureofjustice"the
superiorcourtshallnotquashtheproceedingsmerelyontheground
of such error, omission or irregularity.
16. What is meant by "a failure of justice" occasioned on
account of such error, omission or irregularity? This Court has
observed in ShamnsahebM.Multtaniv.StateOfKarnataka(2001)2
SCC 577 thus:
"23. We often hear about 'failure of justice' andquite
oftenthesubmissioninacriminalcourtisaccentuatedwiththe
saidexpression.Perhapsitistoopliableorfacileanexpression
whichcouldbefittedinanysituationofacase.Theexpression
'failureofjustice'wouldappear,sometimes,asanetymological
chameleon (the simile is borrowed from Lord Diplock inTown
Investments Ltd. v. Deptt. oftheEnvironment(1977)1AllER
813,1978AC359,(1977)2WLR450(HL)).Thecriminalcourt,
particularlythesuperiorcourtshouldmakeacloseexamination
to ascertain whether there was really a failure of justice or
whether it is only a camouflage."
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XXXXX XXXXX XXXXX
21. The expression "a court of competent jurisdiction"
envisaged in Section 465 is to denote a validly constituted court
conferredwithjurisdictiontotrytheoffenceoroffences.Suchacourt
willnotgetdenudedofitscompetencetotrythecaseonaccountof
any procedural lapse and the competence would remain unaffected
bythenon-compliancewiththeproceduralrequirement.Theinability
totakecognizanceofanoffencewithoutacommittalorderdoesnot
meanthatadulyconstitutedcourtbecameanincompetentcourtfor
all purposes. If an objection was raised in that court attheearliest
occasiononthegroundthatthecaseshouldhavebeencommittedby
a Magistrate, the same specified court has to exercise ajurisdiction
eitherforsendingtherecordstoaMagistrateforadoptingcommittal
proceedingsorreturnthepolicereporttothePublicProsecutororthe
policeforpresentationbeforetheMagistrate.Eventhiscouldbedone
only because the court has competence to deal with the case.
Sometimes that court may have to hear arguments to decide that
preliminary issue. Hence the argument advanced by the learned
counsel on the strength of the aforesaid decisions is of no avail.
22. The bar against taking cognizance of certain offences or
by certain courts cannot govern the question whether the court
concerned is "a court of competent jurisdiction", e.g courts are
debarredfromtakingcognizanceofcertainoffenceswithoutsanction
of certain authorities. If a court took cognizance of such offences,
which were later found to be without valid sanction, it would not
become the test or standard fordecidingwhetherthatcourtwas"a
court of competent jurisdiction". It is now well settled that if the
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question of sanction was not raised at the earliest opportunity the
proceedingswouldremainunaffectedonaccountofwantofsanction.
This is another example to show that the condition precedent for
takingcognizanceisnotthestandardtodeterminewhetherthecourt
concerned is "a court of competent jurisdiction".
32. In the case on hand, the CBI could have submitted the
supplementary report only before theAdditionalSessionsCourt(FastTrack-III),
Thiruvananthapuram, where S.C. No. 1542 of 2006 was pending. No fresh
committalordercouldhavebeenpassedbytheCJM,Ernakulam.TheTrialcould
have been conducted only by the Additional Sessions Court (Fast Track-III),
Thiruvananthapuram in view of the principleslaiddowninPrabhavathiamma
(supra), Vinay Tyagi (supra) and Dharam Pal(supra).Thetenderofpardon
by the CJM to PW1, PW5, and PW15 to PW18 is also not in order, as such an
application could only have been entertained by the Trial Court and notbythe
CJM.
33. Sri. K.P. Satheesan, the learned counsel appearing for the CBI,
submitted that as per notification dated 10.12.1974 issuedbytheGovernment,
theChiefJudicialMagistrate,Ernakulam,hasbeenappointedandconferredwith
the powers of a Judicial Magistrate of the First Class for all districts of Kerala,
with headquarters at Ernakulam. The said notification authorises the Chief
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Judicial Magistrate, Ernakulam, to try, enquire into, andcommittotheCourtof
Session all such cases arising within the State of Kerala inwhichinvestigations
are conducted, or charge-sheets filed, by the Special Police Establishment
constituted under the Delhi Special PoliceEstablishmentAct,1946.Thelearned
counsel further referred to the subsequent notification dated 14.07.2014,
wherein it was noted that although a Special Court under the Special Police
Establishment/CBI has since been established at Thiruvananthapuram, the
committal proceedings were still to be undertaken before the Chief Judicial
Magistrate,Ernakulam,asitcontinuedtoremaintheonlydesignatedMagistrate's
Court in the State for such purposes. To address this anomaly, this Court had
concurredwiththeGovernment'sproposaltoestablishaSpecialCourtofJudicial
MagistrateoftheFirstClassatThiruvananthapuram,toactasacommittalcourt
for the CBI Special Court at Thiruvananthapuram, with the same territorial
jurisdiction. Accordingtothelearnedcounsel,inlightoftheabovenotifications,
oncetheinvestigationwastakenoverbytheCBI,itcouldonlyhavere-registered
the crime and submitted further reports and supplementary reports before the
ChiefJudicialMagistrate,Ernakulam,andnowhereelse.Weare,however,unable
toacceptthesaidcontention.Thenotificationsreferredtoabovepertainonlyto
fresh crimes registered by the CBI and not toinstancesoffurtherinvestigation
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ordered by a ConstitutionalCourtunderArticle226oftheConstitutionofIndia,
whereinspecificdirectionswereissuedtotheCBItosubmitsupplementalreports
before the trial court. It is also pertinent to note that during this period, the
proceedings in the Sessions Case had remained stayed. Hence, the said
notifications can have no applicationinmattersoffurtherinvestigation.Insuch
circumstances, the principles laiddownbytheHon'bleSupremeCourtinVinay
Tyagi(supra)andDharamPal(supra)mustnecessarilyapply.Asobservedby
the Apex Court inInVipulShitalPrasadAgarwal(supra)themerefactthat
CBI purported to have registered a "freshFIR", willnotleadtoaconclusionin
law that the earlier report or the material collected by CBCID had been wiped
out. By followingthepracticeofCBItoregistera"freshFIR",inacasewherein
furtherinvestigationwasordered,theprocedureaslaiddownbytheApexCourt,
as well as this Court, will govern the field.
34. Inviewoftheforegoingdiscussion,weareoftheconsideredview
thattheintentionalcourseadoptedbytheCBIinsubmittingafinalreportbefore
the ChiefJudicialMagistrate,Ernakulam,inamatterwherefurtherinvestigation
hadalreadybeenorderedandthetrialhadbeenstayed,andthereaftersecuring
acommittalofacasewhichstoodcommitted,therebymanagingtoconductade
novo trial before the Court of the Special Judge, CBI, Thiruvananthapuram,
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whollyunconnectedwiththeproceedingsinS.C.No.1542of2006,constitutesa
fatal irregularity. Such a procedure, by itsverynature,causesseriousprejudice
to the accused and consequently amounts to a failure of justice.
35. Notwithstandingthevariousproceduralirregularitieswhichwehave
held as fatal, we deem it appropriate to also deal with the evidence adduced
before thelearnedSpecialJudge,CBI,onthebasisofwhichthefindingofguilt
wasultimatelyrecordedwithaviewtoconsiderwhetherthefindingofguilthas
been arrived at on the basis of legal evidence.
36. Witness testimony
TheprosecutionhasmainlyrelieduponthetestimonyofPW1,PW3,PW5,
PW15 to PW18, and PW21 to prove the incident of custodial torture and the
fabrication of Police Station records by accused Nos. 4 to 6, allegedlytoshield
accused Nos. 1 to 3 from the legal consequences of their acts.
37. PW1, Sreekumar, is an injured witness who was picked upbythe
policealongwithUdayakumar.IntheprevioustrialinS.C.No.1542of2006,he
was examined asaprosecutionwitness,buthedidnotsupporttheprosecution
case. After the CBI took over the investigation, PW1 was arraigned as an
accused. The specific allegation against him, however, was not related to the
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incident involving the death of Udayakumar. Rather, he was implicated for the
purposeofallegedlytenderingfalseevidenceduringthetrialofS.C.No.1542of
2006. This is a questionable act. As to whether a person can be made an
approver merely on the ground that he had not deposed in tune with the
prosecutioncaseduringtrial,particularlywhenhehadnoroleinthecommission
of the offence under investigation, is something that needs to be looked into.
The principle of tendering pardon to an accomplice is to unravel the truthina
grave offence so that guilt of the other accused persons concerned in
commissionofcrimecouldbebroughthome.Whensuchapersoniscalledasa
witness for the prosecution,hemustcomplywiththeconditionofmakingafull
and true disclosure of the whole of the circumstances within his knowledge
concerning the offence and to every other person concerned, whether as
principal or abettor, in the commissionthereof.Therecannotbeanydoubtthat
PW1isthevictimofthecrime,andnoone,noteventheCBI,hasacasethathe
was complicit in the murder of Udayakumar. It is in this context that the
contention advanced by the appellants assumes relevance. They have asserted
that, upon taking over the investigation, theCBIadoptedapracticeofarraying
even prime witnesses as accused andshieldedtheoffenderswhowereactually
in the Police Station and pressured them to turn approvers so as to depose in
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supportofthestorysetupbytheCBI.Thiswasunderthethreatofbeingroped
in as accused if they failed to do so. Curiously enoughinExt.P172application
filed by the CBI for tendering pardon to PW1, it is stated that Suresh Kumar
(A12)committedoffencespunishableunderSections120B,201r/w.Section331,
348,302,116and193oftheIPCandthathewasarrestedandreleasedonbail
on18.9.2010ontheorderissuedbythelearnedSessionsJudge.Asobservedby
us earlier, if the application was filed before the Trial Court in S.C.No.1542 of
2007, we doubt whether such an application would have been entertained.
37.1. Be that as it may, when examined in the present case, PW1
deposedinhischief-examinationthathehadmetUdayakumarearlierthatdayat
about 11 a.m. at Killipalam, while Udayakumar was proceeding on his bicycle
towards Palayam. As they could not proceed due to traffic congestion, both of
them stayed at Sreekanteswaram Park, where they were takenintocustodyby
accusedNos.1and2andbroughttothepolicestation.Hefurtherdeposedthat
UdayakumarwasthereaftertakentotheCI'sofficebythesaidaccusedandlater
returned in a battered condition. PW1 himself was also taken for questioning,
andheclaimedthathewasphysicallyassaulted.He,however,refusedtoidentify
the officer who physically assaulted him. Subsequently, however, PW1 resiled
from the prosecution case. He stated that none of the police personnel had
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tortured him. He nevertheless maintained that Udayakumar was taken to the
hospital in a battered condition and that helatercametoknowofhisdeathat
theMedicalCollegeHospital.Incross-examination,PW1statedthattheofficerin
charge of the General Diary had remarked that "there was no point in
Udayakumar living any longer." He further pleaded ignorance regarding what
transpired inside the police station after he was taken there. He denied that,
when making his statement before the Magistrate onthefollowingday,hehad
disclosed the names of the officers who abused him, asserting instead that he
was not aware of their identity. He further statedincross-examinationthatthe
policeofficersstandinginthedockhadnotphysicallyassaultedhim.Hisversion
was that it was after 4:30 p.m. on 27.09.2005, that he and Udayakumar were
taken from Sreekanteswaram Park to the police station. He then professed
ignoranceoftheidentityofthepoliceofficerswhohadpickedthemup.Healso
maintained that he had given a truthful statement before theFastTrackCourt.
WhenconfrontedwithhisprevioustestimonybeforetheFastTrackCourt,itwas
revealed that he had not made any statement regarding physical assault by
police officers. PW1 added that he wasthreatenedbyCBIofficerstodeposein
tunewiththeirversion,underthreatofbeingarraignedasanaccused.According
to him,Exts.P44andP46,beingstatementsrecordedunderSection164ofthe
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Cr.P.C., were not his voluntary statements but were prepared as per the
instructionsofCBIofficers.HeassertedthathewastutoredbytheCBItogivea
false version before the Magistrate. He further alleged that, prior to the test
identification parade, the photographs of the accused were shown to him. He
also categorically stated that he had not given any incriminating statement
against the accused when he was earlier examined before the Fast Track Court.
37.2. WhenPW1wasexaminedinS.C.No.1542of2006,hehadstated
that he was a neighbour and close friend of the deceased. On the day in
question, he and the deceased had gone together on a bicycle to
Sreekandeshwara Park. While they were sitting in the park, two police officers
approached them, took money from their pockets, and compelled two auto
drivers to sign a document. Thereafter, the police took both PW1 and the
deceased inanauto-rickshawtothepolicestation.Atthestation,thedeceased
was taken to the office of theCircleInspector(CI)forquestioning.PW1stated
that he did not hear the conversation between the police and the deceased.
Subsequently,PW1wasalsotakenforquestioning.Hestatedthatthepolicedid
not inflict any physical harm on him and that he was unaware of whether the
deceased had been subjected to any physical assault by the police. Ext.P2
contradictionwasbroughtoutwhenhedeniedhisearlierstatementthathesaw
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the police assaulting the deceased. However, itwasbroughtoutthatinExt.P4
statement recorded under Section 164 Cr.P.C., PW1 had stated before the
Magistrate that Udayakumar (the deceased) was assaulted bythepolice.While
deposing in court, PW1 claimed thathehadmadesuchastatementbeforethe
MagistrateundertheinstructionsofaSub-Inspector(SI)andaCI,whosenames
he could not recall.PW1furtherstatedthathehadbeentutoredinpreparation
for the Test Identification Parade and that he had identified individuals as
instructed by others. Ext.P1(a) was marked when he denied making a prior
statement that the deceased had complained of pain in his legs and stomach.
Similarly,Ext.P2(c)wasmarkedwhenhedeniedhavingpreviouslystatedthathe
saw the police officers returning after 3:00 p.m. It was brought out during
cross-examinationthatPW1hadaccesstonewspapersandtelevisionbeforethe
Test Identification Parade. PW1 admitted that many of the statements hegave
during his examination before the Magistrate werebasedonwhathehadbeen
tutored to say. PW1 further deposed that officersattheFortPoliceStationhad
threatened to kill him around midnight. PW1 was recalled and was further
examined on 14.09.2015. PW1 affirmed that the statement he gavebeforethe
Fast Track Court wastruthful,andclarifiedthathisearlierdepositionbeforethe
Judicial First Class Magistrate (JFCM), Thiruvananthapuram, was made at the
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instance of the police. He further stated that his second statement was given
under threat and coercion by the police. PW1 deposed that he did not recall
Soman hitting him on his back. However, this was contradicted by his earlier
statementrecordedunderSection161oftheCr.P.C.,whereinhehadstatedthat
Soman had struck him on theback.HefurtherstatedthatUdayakumardidnot
request water at any point. WhenquestionedwhetherthefemalePoliceOfficer
had given water to the deceased, he responded in negative. Additionally, PW1
deniedwitnessingthebottlefallfromthehandofthedeceasedwhilebeinggiven
water to drink.
38. PW3wasaHeadConstableoftheFortPoliceStationattherelevant
time. He deposed that he was on duty on the date of the incident and was
presentinthepolicestationthroughout.Accordingtohim,theofficeoftheCircle
InspectorwassituatedadjacenttothePoliceStation.Duringtherelevantperiod,
Ajith Kumar (A4) was theSub-InspectorofPolice,andE.K.SabuwastheCircle
Inspector.AccusedNos.1and2weremembersoftheCrimeSquad.PW3stated
that the General Diary (GD) charge on that day was with Thankamani (PW5).
When PW5 was entrusted with the duty toprepareaninquestinanothercase,
PW3wasdirectedtotakechargeoftheGD.Hewasalsorequestedtolookafter
thepersonsincustody.ThesentryondutyatthattimeincludedRamachandran
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and Sajitha (PW16). When the sentry reportedtohimthatthehealthcondition
of one of the detainees in thelock-upwasbad,heinformedtheSub-Inspector,
but the latter did not respond. Since PW3 did not support the case of the
prosecution, he was declared hostile and the learned Public Prosecutor was
permitted to put leading questions.He,however,admittedthattheconditionof
Udayakumar worsened and thathewastakentotheMedicalCollege,wherehe
was declared dead.
39. PW4wasanotherPoliceConstableoftheFortPoliceStationcitedto
provethatUdayakumarwastakentothehospitalonthefatefuldaywhenhefell
ill.
40. PW5 was in charge of the GD of the Fort Police Station on
27.09.2005.Hestatedthatonthatday,ConstableRamachandran,SheejaKumari
(PW17), Sajitha (PW16)wereonsentryreliefduty,whileRajani(PW21)wason
VHFduty.Vijayakumar(PW3)andPoliceConstableSurendranwerealsopresent.
At about 2:15 p.m., accused Nos. 1 and 2 brought two persons intothePolice
Station,andtheywereUdayakumarandSureshkumar(PW1).PW5wasinformed
that they had been picked up from Sreekanteswaram Park for questioning in
connection with a case. They were made to stand behind his chair. He added
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that accused Nos. 1and2wereCrimeSquadmembersattachedtotheCI,and
that the CI had given instructions that other Police Officers shall not interfere
with the work oftheCrimeSquad.Aftersometime,accusedNos.1and2took
Udayakumar to the office oftheCI.Shortlythereafter,A4,theSub-Inspectorof
Police, came to theStation,andhewasinformedaboutthetakingintocustody
ofthetwopersons.Later,PW5sawaccusedNos.1and2bringingUdayakumar
back in a battered condition, and he found that Udayakumar was not able to
walk properly. He was made to sit in the cell. Sureshkumar (PW1) was then
taken to the CI's office for questioning, and he was brought back after five
minutes. He was then made to stand outside the cell. PW5 stated that
instructions were given that the PW1andUdayakumarshouldnotbepermitted
tointeractwitheachother.Atabout4:15-4:30p.m.,PW5wasdirectedbythe
Sub-Inspector to proceed to conduct an inquest in a case of suicide. He
entrusted the GD charge to PW3 and returned at about 7:00 p.m. When he
returned,hefoundthreedetaineesintheStation.HethenwenttotheCI'soffice
and found that accused Nos. 4 and 5 were present. The CI instructed him to
registeracaseonthebasisofacomplaint.Accordingly,heregisteredCrimeNo.
702of2005at7:00p.m.Immediatelythereafter,theCIdirectedhimtostopGD
entriesat7:30p.m.,afterrecordingthedetailsofthethreedetainees.Hefurther
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stated that the CIinstructedthatnofurtherentriesweretobemadeintheGD
without his permission. He identified his endorsement in the GD as Ext. P4(a),
withtheGDwasmarkedasExt.P4.Atabout9:30p.m.,PW15RaveendranNair
(Crime SI) came to the station after duty but soon left by calling it a day. At
about 10:15 p.m., PW5enquiredwiththedetaineeswhethertheywantedfood.
All except Udayakumar declined. AsUdayakumardidnotrespond,PW5entered
the cell andfoundhimsittingunresponsive.Hesprinkledwateronhisface,but
there was no reaction. He immediately called the CI (accused No. 5) and
informed him of Udayakumar's condition. The CI instructed him to shift
Udayakumar to the hospital. Accordingly, Udayakumar was taken in the office
jeep, and PW3 (Vijayakumar), PW4 (Surendran), and one Anilkumar went with
him. Sometime later, the CI telephoned to enquire about Udayakumar and
directedPW5toreleasethethreepersonsbroughtbyhimtooneKamaludheen,
which PW5 did. At about 11:45 p.m., PW5 received a call from the Medical
CollegeHospitalinforminghimthatUdayakumarhaddied.Hefurtherstatedthat
earlier, he had received a call from the General Hospital informing him that
Udayakumar's condition was serious. At midnight, A4 came to the Fort Police
Station, and PW3 and others who had gone to the hospital also returned. On
receiving information of Udayakumar's death, the Sub-Inspector asked PW5
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about the GD entries, and PW5 informed him that no entries had been made
after 7:30 p.m., as per CI's instructions. Subsequently, the City Control Room
Assistant Commissioner, Sharafudhin and CI Shafi came to enquire about the
death.Thereafter,A6(Haridas),theAssistantCommissioner,alsocame,followed
by A5 (C.I., E.K. Sabu). Accused No. 5 then asked PW5 to route all telephone
calls from the Station to the CI's office. The Sub-Inspector enquired about the
whereaboutsofPW15RaveendranNair,whowasthensummonedtotheStation
at about 3:00 a.m. PW5 deposed that PW15 later told him thattheA6andA5
hadforcedhimtoprepareanFIRshowingthearrestofUdayakumarandPW1at
8:00 p.m. on 27.09.2005. Accordingly, Crime No. 703 of 2005 was registered,
with the time of registration incorrectly shown as 8:00 p.m. To assist in the
preparation of the case, PW18 (Heeralal) of the CI's office and the Assistant
Writer of the Fort Police Station were also involved. PW5 further stated that
accused No. 5 asked him toinsertanentryintheGDaboutUdayakumarbeing
sent to the hospital, which he did only after Crime No. 703 of 2005 was
registered,asperthedirectionsofSIAjithKumarandCISabu.Heaffirmedthat
accusedNos.1to3werepresentintheStationthroughoutthistime.Afterthis,
Ajith Kumar registered Crime No. 704 of 2005underSection174oftheCr.P.C.,
concerning the death of Udayakumar.
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40.1. On the nextday,theCIcalledallofficerswhohadbeenonsentry
dutyonthepreviousdayandinstructedthemtoensurethatanystatementgiven
to any authority must be in conformity with the recordspreparedinrelationto
Crime No. 703 of 2005. PW5 stated that A4 also threatened and intimidated
them to depose in accordance with the false entries. He further deposed that
during the earlier sessions trial, he had given evidence in tune with the police
records, as directed by AjithKumarandE.K.Sabu.However,aftertheCBItook
over, he stated the true facts before the Judicial Magistrate of the First Class,
Thiruvananthapuram (Ext.P5) and before the Chief Judicial Magistrate,
Ernakulam(Ext.P6).Accordingtohim,thestatementsinExt.P6reflectedthetrue
facts. He admitted that the entries in Ext.P4 GDfrom8:30p.m.on27.09.2005
werefalseandweremadeunderthedirectionofA4(AjithKumar).Hisnotebook
was marked as MO6. The Sentry Relief Book of the Fort Police Station was
marked as Ext.P7, with the false entry regarding the registration of Crime No.
703 of 2005 being marked as Ext.P7(a). Hewentontoidentifyalltheaccused
standing in the dock.
40.2. Incross-examination,PW5admittedthataccusedNos.1to3were
his subordinates. It was brought out that although his statement had earlier
beenrecordedbyaSuperintendentofPoliceandlaterintheSessionsCourt,he
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had not mentioned at that time that he was threatened or intimidated by any
officer. He admitted that prior to 10:15 p.m., he had no conversation with the
detainees and denied the suggestion that Udayakumar and Sureshkumar were
brought to the Police Station only after 4:30 p.m. In cross-examination by
accusedNo.2,PW5admittedthathehimselfhadbeenarraignedasanaccused
in the case and was arrestedbytheCBIandtakentotheiroffice.Hewaslater
released on bail by CBI officers. He also admitted that he had not filed any
application to be treated as an approver. PW5 maintained that he was on GD
dutyfrom8:00a.m.to8:00a.m.thenextday,exceptforthebriefperiodwhen
he went for the inquest. He claimed that until 10:30p.m.,hedidnothearany
criesormoansfromUdayakumar,norwashetoldthatUdayakumar'shealthwas
deteriorating.Headdedthatifhehadbeeninformed,hewouldhaveshiftedhim
to the hospital.HeadmittedthathedidnotmentionUdayakumar'sconditionto
theSub-Inspectoroverwirelesscommunication.Heconfirmedthathisstatement
was recorded by the CBI on 27.06.2009 byPradeepKumar,andthathisearlier
deposition before the FastTrackCourtwasmarkedasExt.D3.Headmittedthat
after the CBI took over, he visited the CBI office at Ernakulam on several
occasions, knowing that he was likely to be made an accused for the offences
under Sections 302 and 342 IPC. His sureties hadaccompaniedhim.Hestated
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thathewasarrestedtwicebytheCBI.Whenaskedwhether,asGDofficer,itwas
his duty to take care of prisoners, he denied responsibility and denied that he
and PW15 had manipulated the records to evade liability. In the
cross-examination by A6, he admitted that he was not personally awareofthe
conversation PW15 had with senior officers. During re-examination, he was
asked as to why he was made the approver when he had no complicityinthe
offence.HisresponsewasthatsincehewasinGDcharge,undertheimpression
that he also had something to do with the incident, he was roped in as an
accused.
40.3. When examined in S.C. No. 1542 of 2006 as PW5, Thankamani
deposed that he assumed charge of the General Diary (GD) by 8:00 a.m. on
27.09.2005. According to him, Raveendran Nair returned to the Police Station
after completing election duty and arrived by 8:00 p.m.Anentrywasmadeby
RaveendranNairinMO5at8:00p.m.,whichisinhisownhandwritingandbears
his signature. Based on the report submitted by Jitha Kumar,CrimeNo.703of
2005 was registered under Sections 41(1)(d) and 102 of the Cr.P.C by
Raveendran Nair at 8:30 p.m.. The individuals involved were kept under the
supervision of the officer on Paravu duty. PW5 stated that, upon enquiry as to
whether they required food, the deceased, Udayakumar, did not respond.
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Observingthatheappearedunwell,PW5instructedotherPoliceOfficerstotake
himtothehospital.Udayakumarwasimmediatelysentformedicalattention.The
CircleInspectorarrivedattheStationafter10:00p.m..AjithKumarreachedthe
Station after midnight. PW5 also clarified that he was notpresentatthePolice
Station between 5:00 p.m. and 7:00 p.m. on 27.09.2005, as hehadgonewith
PW4 to conduct an inquest. He affirmed that the deceased and PW1 were
brought to the Station by 8:00 p.m. and asserted that neither of them was
assaulted by anyone while in the Police Station. During cross-examination, he
statedthatnovisibleinjurieswerenoticedonUdayakumar'sbodyatthetimehe
was taken into custody. Similarly,noinjurieswereobservedwhilehewasbeing
takentothehospital,astheprioritywastoensurehereceivedmedicaltreatment
promptly. However, he stated that the uneasiness of the deceasedwasevident
from his facial expressions and demeanor, which were clearly visible due to
adequate lighting at the Station.
41. PW15, Raveendran Nair, was the CrimeSub-InspectoroftheFort
Police Station.HewasarraignedasanaccusedbytheTrialCourtunderSection
319oftheCr.P.C.,andthesaidorderwasconfirmedbythisCourtinW.P.(C)No.
24258of2007.Thereafter,whentheinvestigationwastakenoverbytheCBI,he
was arrested on allegations of committing offences punishable under Sections
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120B, 201, 331, 348, 302, 116, and 193 of the IPC. He was arrested and
remanded. Thereafter, the Investigating Officer filed Ext.P166 before the Chief
Judicial Magistrate, stating that the evidence of Raveendran Nair was vital and
crucialforunravellingthecriminalconspiracyandfurthernotingthathisrolewas
onlyminimal.Basedonthisapplication,thelearnedChiefJudicialMagistrate,by
Ext.P166 (a) order, granted pardon. When examined in court, PW15 deposed
that he was summoned to the Fort Police Station at about 3:00 a.m. by Ajith
Kumar (A4), Sabu(A5),andHaridas(A6).Aspertheirinstructions,hefirstmet
A5, and thereafter A6 (Haridas), who directed A4 (Ajith Kumar) to brief him
about the incident that had occurredafewhoursearlierintheStation.Hewas
asked to register a crime detailing the arrest of Udayakumar and PW1
Sureshkumar. Since he had not seeneitherofthemandwasnotpresentinthe
Station earlier, he expressed his reluctance. According to him, A4 and A5
threatened him with dire consequences, telling him that as he had only a few
months left before retirement, he would be denied pension benefits unless he
complied. A6 (Haridas) then handed over to him a draft FIR, prepared by
Mohanan Chettiar (Head Constable, Karamana Police Station), under Sections
41(1)(d) and 102 of the Cr.P.C. Based on this draft, PW18 (Heeralal) prepared
Crime No. 703 of 2005, and PW15 was forced to sign the FIR at about 3:30 a.m.
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41.1. PW15 further deposed that he came to know about the death of
Udayakumar only around 4:30 a.m. on the next day. On 28.09.2005, he was
directedtosigntheremandapplicationofUdayakumarandSureshkumar,which
had been prepared by Assistant Writer, Mathusudhanan. He was also forced to
signthearrestmemo,inspectionmemo,andcustodymemoofUdayakumarand
SureshKumar.Ext.P17istheFIRofCrimeNo.703of2005,whichwasidentified
byhim.Ext.P18isthemahazarpreparedbyJithakumar,andExt.P19isthereport
submitted by Jitha Kumar. He stated thatExt.P17FIRfalselyshowsregistration
of the Crime at8:00p.m.on27.09.2005,thoughPW15admittedhewasnotin
the Station at that time and the accused were not before him. He admittedto
makingafalseentryinExt.P4GeneralDiary,andtherelevantentrywasmarked
as Ext.P4(b). Accordingtohim,theentriesweremadeonlyatabout3:00a.m.
on 28.09.2005.
41.2. TheRegisterofPropertyfoundonSearchingPrisoners(PSR)ofthe
Fort Police Station was marked as Ext.P20. He stated that false entries were
maderegardingtheregistrationtimeofCrimeNo.703of2005andthebringing
of the accused were made, which portions were marked as Exts.P20(a) and
P20(b). He admitted that he signed thoseentrieswiththeknowledgethatthey
werefalse.HealsostatedthatExt.P4entryshowingFIRregistrationat8:00p.m.
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and completion at 8:30 p.m. was false. Ext.P21 (inspection memo of
Sureshkumar), Ext.P22 (arrest memo of Sureshkumar), and Ext.P23 (remand
reportofPW1)allborehissignature,whichhestatedwasputattheinstanceof
accusedNos.4to6.HisnotebookwasmarkedasExt.P25,andheadmittedthat
Ext.P25(a) false entries therein were also madeafter3:00a.m.on28.09.2005,
as per the directions of his superior officers.
41.3. PW15 further stated that during the earlier trial before the Fast
TrackCourt,hehadtestifiedintunewiththerecordspreparedbytheCBCID,at
the instance of his superiors. He explained that ₹4,020, produced along with
Ext.P19 report, was submitted to the court by preparing Ext.P26 property list.
TheArresteeRegisteroftheFortPoliceStationwasmarkedasExt.P27,wherein
falseentriesweremaderegardingthearrestofPW1andUdayakumar.Ext.P28is
the arrest memo book; its carbon copy concerning Udayakumar (Ext. P28(b))
wasalsoproduced.HeadmittedthattheendorsementinExt.P4(a),claimingthat
the arrest had been informed to the relatives, was false.
41.4. PW15 further stated that theCrimeBranchofficialsdidnotrecord
his statement correctly. On 28.09.2005, PW1 was taken to Vanchiyoor Police
Station. During CBI's investigation, PW15 gave 164 statement before the
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Magistrate,markedasExt.P29,andafterbeingmadeanapprover,gaveanother
statement, marked as Ext.P30.
41.5. In cross-examination, he admitted that while tendering evidence
before the FastTrackCourt,hehadnotcomplainedofthreatsfromhissuperior
officers. He had, however, filed a revision against the Sessions Court order
arraigninghimasanaccused.HeconfirmedthathewasarrestedbytheCBIon
18.05.2009 and was remanded till 09.06.2009, and spent 22 days in custody.
After being released, hegaveExt.P29statementbeforetheCJM,Ernakulam.At
thattime,hewasawarethatCBIwasfilinganapplicationtotenderpardonand
make him an approver. He admitted that his statement before courtwasmade
with the intention to avoid prosecution for his own role in the crime. During
cross-examination, Ext.D4 contradiction was marked, where he had denied his
earlier statementthathereachedthepolicestationat7:45p.m., andnotafter
9:30 p.m. as stated by him in his evidence. Ext.D5 contradiction was marked
where he denied his earlier statement that he returned at 9:00 p.m.,informed
PW1's arrest to his brother-in-law, and left the station, and had returned back
only at 7:00 a.m. the next day. Ext.D6, was marked concerning a statement
allegedly given on 06.12.2005, which he denied. He admitted that in the Fast
Track Court, he had stated thatUdayakumarandSureshkumarwerebroughtin
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withoutinjuries,andthathehimselfhadnotedinExt.P24thatUdayakumarbore
no injuries. PW15 admitted that on 27.09.2005, it was his duty to register a
crime.HefurtherstatedthathegaveevidencebeforetheFastTrackCourtafter
his retirement. He claimed that from 8:00 a.m. to midnight on 27.09.2005, he
hadnotcommittedanyillegalact,norwasheaskedtodoso.Accordingtohim,
he had 34 years of experience in the police department and added that if a
person was kept in lock-up without properrecords,responsibilitywouldliewith
the GD in charge and sentries, and if anything untoward happened, only then
would the Sub-Inspector, CI, Assistant Commissioner, and City Police
Commissionerbeinformed.HisdepositionbeforetheSessionsCourtwasmarked
as Ext.D7.Hestatedthatheisnotawareofthefactthatitwasonthebasisof
abovetestimonythatthelearnedSessionsJudgehadinvokedSection319ofthe
Cr.P.C.toarrayhimasanaccused,whichorderwaslaterconfirmedbytheHigh
Court. He admitted that while in custody in the Sub-Jail, Ernakulam, he was
asked whether he would give a 164 statement. After consenting, he was
released on bail within 3 - 4 days. He admitted that the evidence tendered by
him in the instant case was in tune with his previous statement. He further
admitted thatitwasthedutyofStationOfficerstoregisteracrimeimmediately
when Udayakumar and Sureshkumar were brought to the Police Station. He
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confirmed thattheSub-InspectorandCIwerenotpresentinthestationatthat
time. He also admitted that from 5:30 p.m. to 11:30 p.m. on 27.09.2005, A6
(Haridas)wasonelectionduty.WhenaskedwhetherA6hadcometothestation
only after Udayakumar's death, he pleaded ignorance.
41.6. However, while examined as PW11 in S.C. No. 1542 of 2006,
Raveendran Nair deposed that at the relevant time he was working as a
Sub-Inspector in the Crime Bureau. On the date of the incident, he had been
assigned law and order duty in connection with the counting of electionvotes.
HereturnedtothePoliceStationaround8:00p.m.,bywhichtimethedeceased
and PW1 had already been brought in by A1 and A2. A mahazar and report
regardingtheseizureof₹4020/-fromthemwaspreparedbyA1.Hestatedthat
heinformedtheCircleInspectoraboutthearrestandtheseizure,andthereafter,
as directed by the CI and based on the mahazar, Crime No. 703 of 2005 was
registered against the deceased and PW1. He stated that at about 4:15 p.m.,
whenA1andA2approachedthedeceasedandPW1inSreekandeshwaramPark,
both attempted to run away. A1 and A2 pursued them. Suresh Kumar was
apprehended first and kept under the custody of Sreekumar,whileJithaKumar
caught the deceased by applying force. He further stated that he was told the
sum of ₹4020/- was seized from the deceased. The registering of the FIR
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commencedat8:00p.m.andwascompletedby8:30p.m..Afterregisteringthe
FIR, the deceased and PW1 were handed overtotheguard(PC8571),andhe
thenleftforhisresidence.Hestatedthatnoonehadtoldhimthatthedeceased
orPW1hadbeenassaulted.However,hewastoldthatuntil8:00p.m.,theyhad
beenquestionedintheCI'soffice.Duringcross-examination,headmittedthathe
came toknowthatthedeceasedhadbeenapprehendedonlyafterachaseand
thathehadcustodyofthemonlyfrom8:00p.m.,onwards.Hefurtheradmitted
that he didnotconductabodysearchofeitherofthem,eventhoughtheyhad
been chased and arrested, because both appeared normal when brought in as
they had walked in withoutbloodstains,visibleinjuries,orsignsofexhaustion.
He stated that he returned to the Police Station only by 7:30 a.m. on the
followingmorning,anduntilthen,hehadnodirectknowledgeastothecauseof
death of the deceased. He statedthatitwasonlywhenthecrimewasformally
registered that he came to know that A1 andA2hadallegedlyinflictedinjuries
onthedeceasedduringquestioningintheCI'soffice,whichsubsequentlyledto
his death. Whenitwassuggestedtohimthathehadnotseenthedeceasedor
PW1 at the time of arrest, he denied the suggestion. He also denied the
suggestionthattheFIRwasnotfiledat8:00p.m.andthatthetimingnotedwas
a false entry, thereby reaffirming that Crime No. 703 of 2005hadindeedbeen
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registered at 8:00 p.m. HedeniedhavingconductedadirectbodysearchofA2
inCrimeNo.703of2005.Hestatedthathedidinfactconductthebodysearch
of the deceased and PW1 before handing them over to Guard (PC 8175), in
compliance with the directions of the Hon'ble Supreme Court. He categorically
denied that any of the entries in the Registers were made after the death of
Udayakumar. He stated that during the body search, he noticed that the
deceased appeared tired. The deceased was asked whether he wished to be
taken to ahospital,towhichherepliedinthenegative.Heassertedthatitwas
only because of this response that the deceased was not immediatelytakento
the hospital.
41.7. Whatisdiscerniblefromtheevidenceofthesaidwitnessisthatin
thecourseofthetrialinS.C.No.1542of2006,hewasaddedasaccusedbythe
learnedSessionsJudgebyinvokingSection319oftheCr.P.C.Thesaidorderwas
confirmedbythisCourt.Thereafter,theinvestigationwastakenoverbytheCBI.
They arrested him and remanded him without seeking permission from the
Sessions Judge. Later, his 164 statement was recorded after keeping him in
custodyforabout22days.Thereafter,anapplicationwasfiledtotenderpardon
before the CJM, Ernakulam. As observed by us earlier, theapplicationoughtto
have been filed before the Additional Sessions Court (Fast Track-III),
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Thiruvananthapuram, where S.C. No. 1542 of 2006 was pending. Only the
learned Sessions Judge could have considered whether it waspropertotender
pardon to the saidaccused.Theprosecutionhasnocasethattheorderpassed
bythelearnedSessionsJudgewasvariedorsetaside.TheTrialwasonlystayed,
and the reportsweretobefiledbeforetheTrialCourt.TheactionoftheCBIin
arresting and remanding a person and thereafter obtaining a statement under
Section 164 of the Cr.P.C. and on the assurance given by the witness that he
would parrot the story by making in an approver is strongly challenged by the
appellants. It cannot be said that the challenge raised is baseless.
42. PW16,Sajitha,deposedthatin2005shewasservingasaWoman
PoliceConstableattheFortPoliceStation,Thiruvananthapuram.On27.09.2005,
she was assigned sentry and turn duties in different shifts, sentry duty from
10:00a.m.to12:00p.m.,turndutyfrom12:00p.m.to2:00p.m.,resttimefrom
2:00p.m.to4:00p.m.,turndutyfrom4:00p.m.to6:00p.m.,andagainsentry
duty from 6:00 p.m. to 8:00 p.m. She stated thatatabout4:30p.m.,shesaw
accusedNos.1and2bringinginaperson,byholdinghimonhisshoulders,and
making him sit inside the cell. Another person was seated outside the cell.
AccusedNos.1and2tookthissecondpersonawayforquestioningandbrought
him back within 5-10 minutes, and he was made to sit outside the cell. She
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askedfellowsentrySheejakumari(PW17)abouttheiridentity,andshewastold
thatthepersoninsidethecellwasUdayakumarandtheoneseatedoutsidewas
Sureshkumar. She further stated that around 7:00 p.m., Udayakumar askedfor
water and wascrying,complainingoflegpain.Ajugofwaterwashandedover
to Udayakumar by PW21 Rajini. Seeing him cry, she asked PW3 Vijayakumar
whether he should be taken to the hospital. PW3 went to the Sub-Inspector's
office and sought permission, but the SI did not respond. At about 7:15 p.m.,
three more persons were brought to the Station by Pushparajan,oneofwhom
she knew. While conversing with him, the CI arrived and warned her for
speaking to the detainees.At8:00p.m.,aftercompletingherduty,shewentto
the restroom. Her dutynotebookwasmarkedasExt.P31.After10:00p.m.,she
resumed turn duty and sought permission from the GD to have dinner, and
returned by 10:30 p.m. At that time, PW21 rushed to her and said that
Udayakumarwasunwell.Whenshecamedownstairs,shesawthatUdayakumar
had already been taken in a jeep to the hospital. Around midnight, PW5
ThankamaniinformedtheStationthatUdayakumarhaddied.Shestatedthatthis
fact was noted in Ext.P31,andtheentrywasmarkedasExt.P31(a).Sheadded
that entries made after 10:30 p.m. in her notebook were written under the
instructions of the SI and CI, as directed bythem.Sheconfirmedthatshehad
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earlier given evidence before the Fast Track Court. Ext.P32 and P33 are the
statements recorded under Section 164 of the Cr.P.C. in both thecrimes. She
admittedthattheC.I.hadtoldherthatsinceshewasonsentryduty,shewould
also be held responsible.
42.1. In cross-examination, she admitted that it was only about 4-5
daysafter27.09.2005thattheCIwassuspended,anditwasthereafterthatshe
gave a statement to the Dy.S.P, CBCID. She confirmed that she gave evidence
beforetheFastTrackCourtwithoutfear.ShestatedthattheCBIquestionedher
4-5 years after the incident. She wasawarethatSIRaveendranNairhadbeen
arraigned as an accused and arrested,andthatPW18(Heeralal)hadalsobeen
arrested.SheadmittedthataftertheCBItookover,shewasafraidthatshe,too,
would be arraigned as an accused. She denied thatshehadrequestedtheCBI
not to include her name in the array of accused. She confirmed that she was
arraigned as an accused later and had to go to the CBI office inErnakulamto
secure bail. After her statement was recorded, she was asked if she would
depose before the Magistrate, and it was thereafter that she was released on
bail.Sheadmittedthatalthoughsheclaimedshehadnotcommittedanyoffence,
she had made wrong entries in her duty diary. She added that all the officers'
notebooks were taken by PW5 after Udayakumar was shifted to the hospital.
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Ext.P170istheCBI'sapplicationbeforetheChiefJudicialMagistrate,Ernakulam,
seeking pardon for her. In the application it is stated that her evidence was
crucial to unravel the conspiracy hatched to fabricate false evidencebeforethe
Trial Court in order to shield Jitha Kumar and Sreekumar from legal punishment.
42.2. When examined as PW19 in S.C.No.1542 of 2005, Sajitha stated
thatshewasassignedguarddutyatthePoliceStationon27.09.2005from6:00
p.m. to 8:00 p.m.. She clarified that the role of the guard is to stand at the
entrance of the Police Station, armed with a weapon, to provide security.
43. PW17, Sheeja Kumari, was also a Woman Police Constable on
sentry duty at the Fort Police Station on 27.09.2005. She stated that at about
2:15 p.m., accused Nos. 1and2broughttwopersonstothePoliceStationand
made them stand near the GD. Thereafter,accusedNos.1and2wentoutand
returned around 2:30 p.m., taking one of the persons away, who she later
identified as Udayakumar.Atabout4:00p.m.,sheresumedsentryduty.Around
4:30 p.m., accused Nos. 1 and 2 brought Udayakumar back totheStationand
madehimsitonthefloor.TheythentookPW1SureshkumartotheCI'sofficefor
questioning and brought him back later.Atabout6:00p.m.,shecompletedher
sentry duty, but remained in the Station until 7:00 p.m. At about 6:30 p.m.,
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Udayakumaraskedforwater,whichwasgiventohimbyPW21Rajini.Thebottle
slippedfromhishand,andshenoticedhimcrying.SheaskedPW3(Vijayakumar)
to take him to the hospital. PW3 informed the SI, but the SI scolded him. At
about 10:00 p.m., she resumed sentry duty. She heard the GD officer asking
Udayakumarifhewantedfood.Ashedidnotrespond,PW5wentinsidethecell,
sprinkledwateronhim,andrealisedhewasunresponsive.Hewasthentakento
the hospital in a jeep along with Anilkumar and others. Later, the CI was
informed. Around midnight, they received news that Udayakumar had died.
PW17 further stated that the next day, she was called to theStationbytheSI
andCI.Shewasdirectedtomakeentriesinhernotebookaccordingly.Whenshe
initially refused, she was threatened and forced to comply. Ext.P35 was her
notebook, with Ext.P35(a) being the entry in question. She admitted that the
entry marked as Ext.P35(b) was false. She added that her statement was
recorded by the Narcotic Cell, Assistant Commissioner. However, in her
statement,shedidnotstatethatthefalseentriesweremadeattheinstanceof
hersuperiorofficers.SheadmittedthattheCIandSIhadinstructedhertostick
to the fabricated records. Ext.P36 was her statement before the learned
Magistrate,andExt.P37wasanotherstatementdated28.09.2009.Sheadmitted
that the CBI filed an application to tender her pardon, and she was made an
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approver.
43.1. In cross-examination, she admitted that her statement was
recorded earlier by a Superintendent of Police. She confirmed that in the
previoustrial,shehadmetthePublicProsecutorandthereaftergaveevidencein
tune with the records, as instructed. She stated that she later realised that
persistingwithherearliertestimonywouldputherindifficultyaftertheCBItook
over. On legal advice, she chose to depose in conformity with her statement
beforetheMagistrate,underwhichshehadbeentenderedpardon.Sheadmitted
that she was not personally aware of what transpired in the Police Station
between7:00p.m.and8:00p.m.on27.09.2005.Shealsoadmittedthatbefore
herarrest,theCBIhadrecordedherstatement,andthatshewaslaterarrested
andreleasedonbail.Sheconfirmedthatitwasonlyafterherarrestthatshewas
taken to the Magistrate and her statement was recorded.
44. PW18,Heeralal,deposedthatin2005hewasworkingasaConstable
attheFortPoliceStation,Thiruvananthapuram.Hisdutywasintheofficeofthe
Circle Inspector. Along with him, there was Head Constable,George,Mohanan,
and several Assistant Sub-Inspectors. Accused Nos. 1 and2alsoworkedinthe
sameoffice.Accordingtohim,on27.09.2005,aftercompletinghisdutyatabout
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8:30 p.m., he returned home. On 28.09.2005, at about 2:30 a.m., one
Chandramohanan knocked at his door and informed him that C.I. Sabu was
calling him. He was directed to report immediatelyattheoffice.PW18reached
the office at about 3:00 a.m., where he found A6 (Haridas) sitting and writing
something. C.I. Sabu, and S.I.Ajithkumarwerealsopresentinthesameroom.
When he reported, C.I. Sabu told him that a custodial death hadoccurred.On
asking who had died, the officer said that one of the persons brought by the
squadhaddied.Onfurtherenquiryastohowhedied,PW18wastoldthatonlya
postmortem examination would reveal the cause of death.Hethenwenttohis
office and saw A2 (Sreekumar) writing something, with Mohanan Chettiar
standing beside him. After some time, the Assistant Commissioner brought a
paper written by him, handed it to Ajithkumar, and told him to copy it in his
handwriting. Ajithkumar refused, saying that he was due for promotion, which
led to some altercation between them. At about 3:30 a.m.,PW15[Raveendran
Nair (Crime SI)] arrived. The Assistant Commissioner, Haridas, directed him to
registeracrime.Initially,RaveendranNairrefusedandwentoutoftheoffice,but
returnedabouttenminuteslater.TheAssistantCommissionerhandedthepaper
to him and told him thatsincehewastheCrimeSI,hemustregisterthecase.
Raveendran, along with Mohanan Chettiar, then approached PW18 and asked
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himtoprepareanFIRinthenameofRaveendran.AsinstructedbytheAssistant
Commissioner, a crime was registered showing the time of registration as 8:00
p.m.on27.09.2005,thoughinfacttheFIR(Ext.P17)waswrittenandregistered
atabout4:00a.m.on28.09.2005.AftertheregistrationoftheFIR,theAssistant
Commissioner left the office. PW18 thereafter returned to his office and took
rest. On the following morning, at about 7:00 a.m., he was called to the CI's
office. Along with one Jalaludheen, he was sent for preparing the inquestover
thedeadbody.Afterinquestandpostmortem,thebodywashandedovertothe
relatives,andtheyreturned.PW18furtherstatedthatinthecrimeregisteredby
the CBCID,hewascitedasCW19.Hewasspecificallyinstructednottodisclose
that the FIR was actually registered in themorning,buttostateinsteadthatit
had been registered at 8:00 p.m. on 27.09.2005 by the CI and SI. He later
disclosed these facts in Ext.P39 statement given before the Magistrate on
29.05.2009. Ext.P40 is the application filed for tendering pardon on 28.09.2010.
44.1. In cross-examination,PW18admittedthatwhenhewasexamined
before the Fast Track Court, he had not supported the prosecution case. He
stated that inconnectionwithCrimeNo.703of2005,hisstatementwasinitially
recorded by a Dy.S.P. and later by a Superintendent of Police. He further
admitted that when the CBI took over the investigation, he and PW15
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Raveendran Nair were both arrayed as accused and were arrested. He was
remanded to custody and remained in prison for 20 days. After furnishing
Ext.P39statement,heremainedinprisonforanother8days,andthereafterwas
releasedonbail.Accordingtohim,whenhewastakentotheMagistrate,hewas
under the impression that he was giving a statement, but was unaware thatit
was for tendering of pardon.
44.2. While examined asPW21inS.C.No.1542of2006,Heeralalstated
that hisworkatthePoliceStationwaslimitedtowriterduties.Hedeposedthat
hehadseenA1andA2leavingintheCircleInspector's jeepinthemorning,but
did not know whether they had gone for election duty. According to PW21,
RaveendranNaircalledHeeralalataround8:00p.m.andinstructedhimtowrite
theFirstInformationReport(FIR)inhisownhandwriting.Hestatedthathehad
neither seen the deceased nor PW1. His knowledge that the deceased was
allegedly kept in the lock-up is purely based onhearsay.Hedeniedhavingtold
thepolicethatabenchandcot,alongwithaGIpipe,werelyingonthefloorof
therestroom.Hestatedthathedidnothearanysoundsofcryingorassaulton
the day in question. He specifically denied having made the statement to the
policethat"aftersometime,soundsofsomeonecryingandbeatingwereheard."
This portion is marked as Ext.P20(a).HedeniedwitnessingA1beatingthesole
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of the deceased with a wooden stick (chooral)anddeniedhavingmadesucha
statementtothepolice.ThiscontradictionwasmarkedasExt.P20(b).Hedenied
stating that he saw the deceased lying inside the lock-up with Sureshkumar
standing outside which portion was marked as Ext.P20(d). He denied having
stated that, upon hearing thecriesofUdayakumar,hewenttothelocationand
sawthedeceasedlyinginasupinepositionwhileA1,A2,andA3werekneading
aGIpipeintohisthighs,causingexcruciatingpain,whichportionwasmarkedas
Ext.P20(c). He denied having identified the bench where the injuries were
allegedly inflicted on the deceased, which portion was marked as Ext.P20(f).
PW21 stated that apart from having writtentheFIRinhisownhandwriting,he
had no further involvement in the case.
44.3. While being examined as PW18 in S.C. No. 1542 of 2006, Sheeja
KumarideposedthatshewasonguarddutyatFortPoliceStationonthedateof
the incident and was assigned duty from 10:00 p.m. to 12:00midnight.Atthe
time she took charge of guard duty, she observed that Udayakumar (the
deceased) was inside the lock-up, and Sureshkumar was standing outside the
lock-up. PW18 confirmed that PW5 was the General Diary (GD) Charge Officer
during this time. She further stated that PW5hadaskedthedeceasedwhether
he wanted food, but the deceased did not respond. Concerned by the lack of
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response, PW5 lookedinsidethelock-up,foundthedeceasedtobeunwell,and
consequently arranged for him to be taken to the hospital.
45. PW21, Rajani, was a Police Constable at the FortPoliceStationin
2005. She deposed that she first saw Udayakumar at about 2:30 p.m. He was
broughttothestationbyA1andA2,alongwithSuresh.Aftersometime,A1and
A2 took Udayakumar to the CI's office. At that time, SI Ajithkumar was not
present in the station. The SI came backatabout3:30p.m.,about1½ hours
later,UdayakumarwasbroughtbackbyA1andA2.Hewasbeingheldbythem,
and was put inside the lock-up. Thereafter, Suresh was also taken to the CI's
office by A1 and A2 and was brought back after some time. In the evening,
Udayakumar askedforwater,andshegavehimabottletodrink.Atabout7:30
p.m., she went for dinner and returned by9:30p.m.Atthattime,shesawthe
GDofficeraskingUdayakumarwhetherhewantedfood,buthedidnotrespond.
Just before she wentfordinner,atabout7:30p.m.,CISabuhadarrivedatthe
station and was seen talking to PW16 (Sajitha). At about 10:00-10:30 p.m.,
sinceUdayakumarwasunwellandnotresponding,hewastakentothehospital
byPW3VijayakumarandSurendran.Later,shereceivedinformationthathehad
been admitted to the Medical College Hospital, where he passed away around
midnight. She further deposed that the duty notebooks of the Police Officers
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were collected by PW5 Thankamani, on the instructions of the SI and CI. She
stated that both the SI and CI directed her to state that Udayakumar and
Sureshkumarwerebroughttothestationonlyat8:00p.m.andthatacrimewas
registered accordingly. She admitted that she had accordingly given such a
statement to the CBCID Investigating Officer. However, after the investigation
wastakenoverbytheCBI,shegaveastatementunderSection164oftheCr.P.C
on 21.08.2009 before the Magistrate, Thiruvananthapuram.
Approvers evidence:
46. Before carrying out an exercise of evaluation of the evidence
tendered by the above witnesses, all except one are approvers, the broad
principles with regard to an accomplice and approver and the matter of
appreciation of their evidence need to be borne in mind.
46.1.Section133oftheEvidenceAct,1872declaresthatanaccompliceis
a competent witness andfurtherthataconvictionbasedontheuncorroborated
testimony of an accomplice is notillegalonlyonaccountofitbeingso.Section
133 reads as follows:
" 133. Accomplice.--An accomplice shall be a competent witness
against an accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an
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accomplice."
46.2. Under Section 114 of the Evidence Act, Illustration (b), the court
may presume:
"(b) that an accomplice is unworthy of credit, unless he is
corroborated in material particulars."
46.3. In Sarwan Singhv.StateofPunjab28,thedichotomybetween
Section133andSection114(b)waslucidlyexplainedbyaThreeJudgeBenchof
the Supreme Court through the words of Gajendragadkar J; as follows:
"7. ... On behalf of Harbans Singh, ithasbeenurgedbeforeus
by Mr Kohli that the judgment of the High Court of Punjab suffers
from a serious infirmity in that, in dealing with the evidence of the
approver, the learned Judges do not appear to have addressed
themselvestothepreliminaryquestionastowhethertheapproveris
a reliable witness or not. The problem posed bytheevidencegiven
by an approverhasbeenconsideredbythePrivyCouncilandcourts
inIndiaonseveraloccasions.Itishardlynecessarytodealatlength
with the true legal position in this matter. An accomplice is
undoubtedly a competent witness under the Indian Evidence Act.
There can be, however, no doubt that the very fact that he has
participated in the commission of the offence introduces a serious
staininhisevidenceandcourtsarenaturallyreluctanttoactonsuch
tainted evidence unless it is corroborated in material particulars by
28
[A
IR 1957 SC 637]
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otherindependentevidence.Itwouldnotberighttoexpectthatsuch
independentcorroborationshouldcoverthewholeoftheprosecution
storyorevenallthematerialparticulars.Ifsuchaviewisadoptedit
would render theevidenceoftheaccomplicewhollysuperfluous.On
the other hand, it would not be safe to act upon such evidence
merely because it is corroborated in minor particulars or incidental
details because, in such a case, corroboration does not afford the
necessary assurance that the main story disclosed by the approver
can bereasonablyandsafelyacceptedastrue.Butitmustneverbe
forgotten that before the court reachesthestageofconsideringthe
question of corroboration and its adequacy or otherwise, the first
initial and essential question to consider is whether even as an
accomplice the approver is a reliable witness. If the answer to this
question is against the approver then thereisanendofthematter,
and no question as to whether his evidence is corroborated or not
falls to be considered. In other words, the appreciation of an
approver's evidence has to satisfy a double test. His evidence must
showthatheisareliablewitnessandthatisatestwhichiscommon
to all witnesses. If this test is satisfied the second test which still
remains to be applied is that the approver's evidence must receive
sufficient corroboration. This test is special to the cases of weak or
tainted evidence like that of the approver...(emphasissupplied by us)
46.4. In Haroon Haji Abdulla v. State of Maharashtra29, the
principles were further elaborated as under:
"8. ... The law as to accompliceevidenceiswellsettled.The
29
[A
IR 1968 SC 832]
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Evidence Act in Section 133 provides that an accomplice is a
competentwitnessagainstanaccusedpersonandthataconvictionis
not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice. The effect of this provision is that the
court trying an accused may legally convict him on the single
evidence, of an accomplice.TothisthereisariderinIllustration(b)
toSection114oftheActwhichprovidesthatthecourtmaypresume
thatanaccompliceisunworthyofcreditunlessheiscorroboratedin
material particulars. This cautionary provision incorporates a rule of
prudencebecauseanaccomplice,whobetrayshisassociates,isnota
fairwitnessanditispossiblethathemay,topleasetheprosecution,
weave false details into those which are true and his whole story
appearing true, there may be no means at hand to sever the false
from that which is true.Itisforthisreasonthatcourts,beforethey
act on accomplice evidence, insist on corroboration in material
respects as to the offence itself and also implicating in some
satisfactory way, however small, each accused named by the
accomplice. In this way the commission of the offence isconfirmed
by some competent evidence other than the single or unconfirmed
testimonyoftheaccompliceandtheinclusionbytheaccompliceofan
innocent person is defeated. This rule of caution or prudence has
become so ingrained in the consideration ofaccompliceevidenceas
to have almost the standing of a rule of law."
46.5. K. Hashim v. State of T.N30, the Apex Court had occasion to
expatiatefurtheronthemannerandmodeofappreciationofevidencetendered
30
[(2005) 1 SCC 237]
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by an approver, and it was observed as under:
38. First, it is not necessary that there should be
independent confirmation of every material circumstancein
the sense that the independent evidenceinthecase,apart
from the testimony of the complainant or the accomplice,
should in itself be sufficient to sustain conviction. As Lord
Reading says:
"Indeed, if it were required that the accomplice should be
confirmed in every detail of the crime, his evidence would
notbeessentialtothecase;itwouldbemerelyconfirmatory
of other and independent testimony." (Baskerville case
[(1916) 2 KB 658]
39.Allthatisrequiredisthattheremustbesomeadditional
evidence rendering it probable that the story of the
accomplice(orcomplainant)istrueandthatitisreasonably
safe to act upon it.
40.Secondly,theindependentevidencemustnotonlymake
it safe tobelievethatthecrimewascommittedbutmustin
some way reasonably connect or tend to connect the
accusedwithitbyconfirminginsomematerialparticularthe
testimonyoftheaccompliceorcomplainantthattheaccused
committed the crime. This does not mean that the
corroboration as to identification must extend to all the
circumstances necessary to identify the accused with the
offence. Again, all that is necessary isthatthereshouldbe
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independent evidence which willmakeitreasonablysafeto
believethewitness'sstorythattheaccusedwastheone,or
among those, who committed the offence. The reason for
this part of the rule is that:
"Amanwhohasbeenguiltyofacrimehimselfwillalwaysbe
able to relate the facts of the case,andiftheconfirmation
be only on the truth of that history, withoutidentifyingthe
persons,thatisreallynocorroborationatall....Itwouldnot
at all tend to show that the party-accused participated in it."
41. Thirdly, the corroboration must comefromindependent
sourcesandthusordinarilythetestimonyofoneaccomplice
wouldnotbesufficienttocorroboratethatofanother.Butof
coursethecircumstancesmaybesuchastomakeitsafeto
dispense with the necessity of corroboration and in those
special circumstances a conviction so based would not be
illegal. I saythisbecauseitwascontendedthatthemother
in this case was not an independent source.
42. Fourthly, the corroboration need not bedirectevidence
that the accusedcommittedthecrime.Itissufficientifitis
merely circumstantial evidence of his connection with the
crime. Were it otherwise, "many crimes which are usually
committed between accomplices in secret, such as incest,
offences with females" (orunnaturaloffences)"couldnever
be brought to justice". (See M.O. Shamsudhin v. State of
Kerala [(1995) 3 SCC 351])
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46.6. The principles that can be culled from the oft-quoted judgments
above are as follows:
a) An accomplice is one who has participated in the commission ofthe
crime.
b) The very fact that he has participated in the commission of the
offence introduces a serious stain in his evidence
c) Itispossiblethattheapprovermay,topleasetheprosecution,weave
false details into those which are trueandhiswholestoryappearing
true, there may be no means at hand to sever the false from that
which is true.
c) Courts wouldbereluctanttoactonsuchtaintedevidenceunlessitis
corroborated in material particulars by other independent evidence
despite thefactthatanaccompliceisacompetentwitnessunderthe
Indian Evidence Act.
d) It cannot be expected that such independent corroboration should
cover the whole of the prosecution story or even all the material
particulars, as such an insistence would make evidence of the
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accomplice wholly superfluous.
e) At the same time, it would not be safe to act upon such evidence
merely because it is corroborated in minor particulars or incidental
details, because, in such a case, corroboration does not afford the
necessary assurance that the main story disclosed by the approver
can be reasonably and safely accepted as true.
f ) The approver's evidence has to satisfy a double test. His evidence
must show that he is a reliable witness, and that is a test which is
commontoallwitnesses.Ifthistestissatisfied,thesecondtestwhich
stillremainstobeappliedisthattheapprover'sevidencemustreceive
sufficient corroboration. This test is special to the cases of weak or
taintedevidence,likethatoftheapprover.Inotherwords,beforethe
court reaches the stage of considering the question of corroboration
and its adequacy or otherwise, the first initial andessentialquestion
tobeconsiderediswhether,evenasanaccomplice,theapproverisa
reliablewitness.Iftheanswertothisquestionisagainsttheapprover,
thenthereisanendofthematter,andnoquestionastowhetherhis
evidence is corroborated or not falls to be considered.
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46.7. Inthelightofthelawabove,weshallevaluatetheevidenceofthe
witnesses who areallapproverstocometoaconclusionwhetherthesamecan
be relied upon to arrive at a finding of guilt.
47. PW1 was an injured witness taken into custody along with the
deceased, Udayakumar. In the first trial (S.C.No. 1542 of 2006), he did not
supporttheprosecutionandmadenoallegationsofpoliceassault.AftertheCBI
assumed the investigation, PW1 was arraigned as an accused and thereafter
tendered pardon, thereby becoming an approver. However, PW1 cannot be
treated as an accomplice, for that term, in law, refers only to a person who
knowingly orvoluntarilyco-operateswith,oraidsanotherin,thecommissionof
a crime. The expression encompasses principalsinthefirstandseconddegree,
aswellasaccessoriesafterthefact,subjecttothreewell-establishedconditions:
(i) the felony must have been completed, (ii) the accessory must have
knowledge that the principal committed the felony,and(iii)theaccessorymust
harbour or assist the principalfelon.PW1,thoughprojectedasthestarwitness
oftheprosecution,cannotbedeemedanaccomplicemerelybecausehefailedto
supporttheprosecutionintheearlierproceedings.Heneitherparticipatedinthe
murder nor rendered any assistance to the perpetrators. Fundamentally,
therefore, PW1 did not qualify as an accomplice in law, and the very basis for
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treating him as an approver was legally unsound. Further, PW1's testimony is
fraught with contradictions. In one version, he alleged that Udayakumar had
beenreturnedtotheStationinabatteredcondition,yetinanother,herefusedto
identify any officer as responsible and reiterated that the accused officers had
notassaultedhim.HealsoallegedthattheCBIcoercedandtutoredhim,showed
him photographs prior to the Test Identification Parade, and compelled him to
make involuntary statements under Section 164 of the Cr.P.C. These assertions
cast a serious shadow over the voluntariness of his testimony. Despite legal
evidence adduced before court, this Court will not be justified in relyingonhis
earlier statement before the Magistrate and marked as Ext.P9 which was
profuselyrelieduponbythelearnedSessionsJudge.Thesameisnotsubstantive
evidence.
48. PW3 deposed that he was on duty at the Police Station on the
relevant date, and although he admitted to the deteriorating health of
Udayakumarandhiseventualremovaltothehospital,hedidnotimplicateanyof
the accused officers in inflicting injuries. As he did notsupporttheprosecution
ontheessentialissueofpoliceassaultandhewasdeclaredhostile.Hisevidence,
even if those acceptable portions are considered as such, provides only
backgroundcircumstancesofcustodyandhospitalisation,withoutconnectingany
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accused to acts of torture.
49. PW5 initially deposed in S.C.No. 1542 of 2006 that the deceased
and PW1 were brought to the Station around 8:00 p.m. and that he had no
occasiontowitnesstheassault.However,aftertheCBItookover,headmittedto
having made false entries in the General Diary under pressure from superior
officers and narrated that the FIR was fabricated and back-dated. He also
identified several accused as being involved in directing such falsification.
However,thefactremainsthathewastheofficerwhowaspresentinthePolice
Station from the moment Udayakumar was brought in. It was after turning
himself into an approver that he had confessed to falsifying official records.
Another problem with his evidence is that he does not admit that he has
committedanycrimeandplacestheburdenontheseniorofficers.Hisshiftfrom
exoneratingtestimonytoincriminatingdepositionwasafterhewasarraignedas
an accused and thereafter tendered pardon. He admitted in cross-examination
that he was fearful that he would be arraigned as anaccusedbytheCBIafter
the investigation was taken over by them. It is clear as daylight that he was
persuaded by the urge of extricating himself from being triedasanaccusedin
thiscase.Moreover,thecourthastorelyontheevidenceoftheotherapprovers
to obtain corroboration of the evidence of PW5.
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50. PW15wasexaminedasPW11inS.C.No.1542of2006anddidnot
support the case of the prosecution. The learned Sessions Judge, after
evaluating the evidence, came to the conclusion that he is to be added as an
accused and Section 319 of the Cr.P.C was invoked. The same was challenged
before this Court and the said order was confirmed, and his appeal beforethe
ApexCourtwasalsorejected.AftertheinvestigationwastakenoverbytheCBI,
hewasarrestedandremanded.Afterspendingoverthreeweeksincustody,his
statementwasinitiallyrecordedunderSection164oftheCr.P.C.wherehestated
adifferentversion.Accordingtohim,hewasforcedbyhissuperiorstospeakas
perthePoliceStationrecordswhenhewasearlierexaminedasawitnessinthe
FastTrackCourt.AnapplicationwasfiledunderSection306oftheCr.P.C.before
thelearnedCJM,Ernakulamandwastenderedpardon.HedeposedthattheFIR
(Crime No. 703 of 2005) was in fact registered onlyaround3:30-4:00a.m.on
28.09.2005, though shown as 8:00 p.m. on 27.09.2005, and admittedtomake
false GD entries, custody memos, and arrest documents under pressure from
senior officers.Thefactremainsthathewasbeingaddedasanaccusedbythe
learned SessionsJudgeinS.C.No.1542of2006inthecourseoftrial.Onlythe
Sessions Court could have entertained the application for tendering pardon in
view of the law laid down in Devendran (supra). Furthermore, PW15 had
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candidly admitted that he was in prolonged custody, and he had aligned his
evidence with the prosecution in order to escape from being roped in as an
accused. We arethereforeunabletorelyontheevidenceofPW15asareliable
piece of evidence to support the case of the prosecution.
51. PW16 initially deposed in tune with the police records in the first
trialanddidnotconnecttheaccusedtoanytorture.Later,whenarraignedasan
accused and tendered pardon, she shifted her stance to say that A1 and A2
broughtUdayakumartotheStationaround4:30p.m.,thathecomplainedofleg
pain,askedforwater,andthathernotebookcontainedfalseentriesmadeatthe
direction of superiors. She admitted fear of being arraigned asanaccusedand
confessed to making false entries. The corroboration for her later incriminating
versionagaincomesonlyfromotherapprovers,notfromindependentevidence.
Under Haroon Haji Abdulla (supra), such tainted inter se corroboration is
insufficient.
52. PW17 also followed a similar trajectory as PW16. Initially, her
evidence did not connect the accused with the crime. Subsequently, after her
arrest and pardon, she deposed that A1 and A2 brought Udayakumar at 2:15
p.m.andlaterreturnedhiminaweakenedcondition,andthatshewasforcedto
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makefalsenotebookentriesundertheCI'sinstructions.Sheadmittedthatinthe
first trial she had deposed in conformity with records after meeting the Public
Prosecutor. She further admitted that her incriminating version emerged only
after CBI's intervention and her own pardon. Such shifting positions and
confessed falsifications destroy the intrinsic reliability of her testimony.
53. PW18initially,whenexaminedinS.C.No.1542of2006,downplayed
his role and denied knowledge ofanyassault,admittingonlytowritingtheFIR
at Raveendran's request. Later, after arrest and pardon, he stated thattheFIR
was actually written around 4:00 a.m. on 28.09.2005 but falsely dated
27.09.2005at8:00p.m.Henarratedindetailthepresenceofseniorofficers,and
they hadorderedthefabricationoftherecords.Thiswitness,too,isdiscredited
by his own contradictory accounts and by the circumstances of his pardon
following custodialpressure.Healsostatedthathewasarrestedandremanded
and it was after several days that his application for tendering of pardon was
consideredandhewasmadeanapprover.Hisevidenceistaintedandcannotbe
acted upon without independent corroboration.
54. Yet another disconcerting aspect that is borne out from the
evidenceoftheprimewitnessesabovewhowereallexaminedasapproverswill
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be evident from the chart below.
ame of
N SC 1542/2006 rrested
A 164 statement Application Tender of Bail Examined in Court as
witness by the CBI recorded under pardon granted PW on in 917/2012
Section 306 before CBI Court
before CJM Thiruvananthapuram
EKM
xamined as PW1
E rrested in
A I n Crime 703/2005,Before 8.09.2010
1 1.10.2010
1 18.09.2010 xamined as PW1 on
E
on 3/07/2007 before RC 10/07 JFCM Ext.P 172 Ext.P. 172(a) 21/06/2017
the Additional on Thiruvananthapuram, on
Sessions Judge 18.9.2010 20.10.2005
Suresh Kumar Thiruvananthapuram (Ext. P165) Ext.P43
ecalled on
R
14.09.2015 before I n Crime 703/2005,Before
Special Judge CBI JFCM V
Thiruvananthapuram, on
28.08.09
Ext.P44
I n Crime 703/2005,
before JFCM V on
28/09/2005
Ext.P9
xamined as PW5
E In RC 5 I n RC 5, before JFCM In RC 5 18.8.2010 xamined as PW5 on
E
on 5/07/2007 before Thiruvananthapuram, on 24/06/2017
the Additional 8.08.2010
1 29/08/2009 0.09.2010
3 Ext.P200
Thankamani Sessions Judge (Ext P200) Ext. P 5 Ext P.195
Thiruvananthapuram
In RC 10 I n RC 10, before JFCM In RC 10 In RC 10
Thiruvananthapuram, on
8.09.2010
1 26/08/2009 8.09.2010
1 1.10.2010
(Ext.P160) Ext. P 8 Ext. 172 Ext. 172(a)
In RC 5 J FCM II Kochi In RC 5 In RC 5 18.09.2010 xamined as PW15 on
E
2/06/2009 16/11/2017
xamined as PW 11
E 8.05.2009
1 9.08.2010
1 8.09.2010
aveendran
R on 6/07/2007 before (Ext. P183) Ext.P.29 Ext.P190 Ext.P194
Nair the Additional
Sessions Judge
Thiruvananthapuram In RC 10 In RC 10 In RC 10
8.09.2010
1 8.09.2010
1 8.09.2010
(Ext. P158) Ext. P167 Ext.P166
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DSR Nos.6/2018 & Con.Cases :134:
In RC 5 or Crime 703/2005
F I n RC 5 8.8.2010
1 xamined as PW 16 on
E
xamined as PW 19
E Before 30.09.2010 Ext.204 8/11/2017
on 10/07/2007 8.08.2010
1 JFCM V Ext.P 197
before the Additional (Ext. 203) Thiruvananthapuram on
Sajitha Sessions Judge 25/08/2009
Thiruvananthapuram Ext.P 32
In RC 10 or Crime 704/2005
F In RC 10 In RC 10
Before
8.09.2010
1 JFCM V 0.09.2010
3 1.10.2010
(Ext. 162) Thiruvananthapuram on (Ext. P34) Ext.P 170(a)
21/08/2009
Ext.P 33
In RC 5 or Crime 703/2005
F In RC 5 8.8.2010
1 xamined as PW 17 on
E
xamined as PW 18
E Before Ext.P200 10/11/2017
on 10/07/2007 8.08.2010
1 JFCM V 0.09.2010
before the Additional (Ext.P 203) Thiruvananthapuram on Ext 196
heeja
S Sessions Judge 27/08/2009
Kumari Thiruvananthapuram Ext.P 36
In RC 10 or Crime 704/2005
F In RC 10 In RC 10
Before
8.09.2010
1 JFCM V 9.08.2010
1 1.10.2010
(Ext.163) Thiruvananthapuram on (Ext.169) Ext 169(a)
22/08/2009
Ext.P37
xamined as PW 21
E I n RC I n RC 10, before JFCM In RC 5 18.09.2010 xamined as PW18 on
E
on 10/07/2007 10/2007 Thiruvananthapuram 14/11/2017
Heeralal before the Additional On 29/05/2009 n
O
Sessions Judge n
O Ext. P 39 (After 306 28.09.2010
Thiruvananthapuram 18.5.2009 CrPC) Ext.P40
(Ext. P182)
In RC 10 In RC 10
n
O n
O
18.09.2010 11/10/2010
Ext.P 171 Ext.P 171(a)
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55. After having been examined as prosecution witnesses and their
evidence recorded in the earlier trial in S.C.No.1542 of 2006, they were
subsequentlyre-arrestedafterseveralyears,andtheirstatementswererecorded
under Section164oftheCr.P.C.Immediatelythereafter,anapplicationwasfiled
seeking the tender of pardon, pursuant to which they were again examined in
Court.Atthatstage,allofthemwereapparentlymadeawareofthemandateof
Section308oftheCr.P.C.,whichprovidesthatwhereapersonwhohasaccepted
a tender of pardon under Section 306 or Section 307 fails to comply with the
conditiononwhichthepardonwasgranted,thepersonconcernedmaybetried
for the offence in respect of which the pardon was tendered, or for any other
offenceconnectedwiththesamematter,inadditiontotheoffenceofgivingfalse
evidence.Fromtheevidence,itcanbeseenthatalltheapprovershadexpressly
stated that they acted under fear of being arraigned as accused by the CBI.
56. Then all that remains is the evidence of PW21 Rajani. Shestated
that Udayakumar was brought to the station byA1andA2atabout2:30p.m.,
along with Suresh, that they took him to the CI's office and about 1½ hours
later,hewasbroughtback.Intheevening,Udayakumaraskedforwater,andshe
gavehimabottletodrink.Atabout7:30p.m.,shewentfordinnerandreturned
by 9:30 p.m. At that time, she saw theGDofficeraskingUdayakumarwhether
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he wanted food, but he did not respond. At about 10:00-10:30 p.m., since
Udayakumar was unwell and not responding, he was taken to the hospital by
PW3 Vijayakumar and Surendran. Later, she received information that he had
been admitted to the Medical College Hospital, where he passed away around
midnight. She further deposed that the duty notebooks of the police officers
were collected by PW5(Thankamani),ontheinstructionsoftheSIandCI.She
stated that both the SI and CI directed her to state that Udayakumar and
Sureshkumarwerebroughttothestationonlyat8:00p.m.andthatacrimewas
registered accordingly. This evidence by itself cannot be the sole basis for
conviction.
57. Our conclusion:
In view of the above discussion, we conclude that:
(i) Where further investigation was ordered in a case which was already
committed to the Court of Session and Trial had commenced, the
procedureadoptedbytheCBIinconductinginvestigationinvarianceto
the direction issued by this Court in Prabhavathiamma (supra),
Central Bureau ofInvestigation(supra),VinayTyagi(supra)and
Dharampal(supra)andinfilingfinalreportbeforeaMagistratehaving
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nojurisdictionhasresultedinseriousfailureofjusticeandhasviolated
the rights of the accused to haveafairtrialflowingfromArticle21of
the Constitution of India.
ii) PW1, who was an eyewitness to the occurrence, was improperly
branded as an accomplice and turned into an approver, contrary to
well-established tenets of law.
iii) The evidence of all witnesses had already been recorded in S.C. No.
1542 of 2006, and such evidence oughttohavebeendulyconsidered
by the learned Sessions Judge while assessing the reliability of their
testimony as anapprover.Despitethespecificdirectionsissuedbythis
Hon'ble Court as to the manner in which thetrialwastoproceedand
the evidence to be appreciated, those binding directions were
disregarded, and the earlier evidence was not taken into account.
iv) TheprocedureadoptedbytheCBIinseekingthetenderofpardon,ina
casewhichhadalreadybeencommittedandtrialwaspending,byfiling
an application before the Chief Judicial Magistrate, is ex facie illegal,
beinginviolationofthemandatoryprovisionsofSections306and307
of the Cr.P.C., as well as the binding precedent laid down in
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Devendran(supra).TheevidenceofPW1,5,15,16,17and18cannot
therefore be relied upon to aid the case of the prosecution.
v) Even otherwise, the testimony tendered by the approvers, when
evaluated inthelightoftheevidencealreadyadducedinS.C.No.1542
of 2006, is wholly unreliable and cannot be made the foundation of
conviction.
vi) PW15 (Raveendran), who was initially examined as PW11 before the
Additional Sessions Court (Fast Track -III), Thiruvananthapuram and
was later added as an accused under Section 319 of the Cr.P.C., and
was made an approver by way of anapplicationunderSection306of
theCr.P.C.beforethelearnedMagistrate.Suchanapplicationcouldonly
have been entertained and decided by the Fast Track Court. The
adoptionofacontraryprocedureisnotamerecurableirregularity,but
a fundamental illegality, as categorically held inDevendran(supra).
vii) The high-handed and wholly illegal procedure adopted by the CBI, of
converting an eyewitness, who had no real connection with the
incident,intoanapprover;ofindiscriminatelyarrayingallwitnessesand
coercingthematgunpointintobecomingapprovers;ofextractingtheir
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assentontheconditionthattheyparrottheCBI'sversionofevents;of
filing applications for tender of pardon before a Court lacking
jurisdictiontoentertainthesame;andoflayingasupplementaryreport
before a Courtequallydevoidofjurisdiction,amountstonothingshort
of a tainted and vitiated investigation.
58. Inacriminaltrialinvolvingaseriousoffenceofabrutalnature,the
courtshouldbewaryofthefactthatitishumaninstincttoreactadverselytothe
commission of the offence and make an effort to see that such an instinctive
reactiondoesnotprejudicetheaccusedinanyway.Inacasewheretheoffence
alleged to have been committed is aseriousone,theprosecutionmustprovide
greaterassurancetothecourtthatitscasehasbeenprovedbeyondreasonable
doubt.
59. There are major contradictions in the testimonies of the
prosecution witnesses, most of whom are approvers, accompanied by glaring
investigative defects. It cannot besaidthattheprosecutionhasestablishedthe
chargebeyondreasonabledoubt.Atthecostofrepetitionwemaystatethatthe
standardofproofisanabsolutelystrictrequirementandcannotbetinkeredwith.
We arecompelledtoholdthataflawedandtaintedinvestigationhaseventually
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led to the failure of the prosecution case involving the gruesome death of
Udayakumar. The evidence adduced before the Court, if shorn of its taint and
illegalities,isnotsufficienttoholdtheaccusedguiltyoftheoffence.Thefindings
recorded in the impugned judgment holding the appellants guilty of charges
framed against them are based on conjectures and surmises and hence, the
same is unsustainable under law.
60. Before parting, we would like to reiterate the words of the Apex
Court in Ashish Batham v. State Of M.P31 wherein it was observed that
realities or truth apart, the fundamental and basic presumption in the
administrationofcriminallawandjusticedeliverysystemistheinnocenceofthe
allegedaccusedandunlessthechargesareprovedbeyondreasonabledoubton
the basis of clear, cogent, credible or unimpeachable evidence, the questionof
indicting or punishing an accused does not arise. We cannot merely becarried
away by the heinous nature of the crime or the gruesome manner in which it
wasfoundtohavebeencommitted.Meresuspicion,howeverstrongorprobable
it may be is no effective substitute for the legal proof required to substantiate
thechargeofcommissionofacrimeandgraverthechargeis,greatershouldbe
thestandardofproofrequired.Courtsdealingwithcriminalcasesatleastshould
31
[2 002 AIR SC 3206]
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constantlyrememberthatthereisalongmentaldistancebetween"maybetrue"
and"mustbetrue"andthisbasicandgoldenruleonlyhelpstomaintainthevital
distinctionbetween"conjectures"and"sureconclusions"tobearrivedatonthe
touchstone of a dispassionate judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the case as well as quality and
credibility of the evidence brought on record.
61. Therefore,giventhefactsandcircumstancesofthecaseandinthe
light of the above discussion, we cannot bring ourselves to hold the accused
appellants guilty of the charged offence as their guilt has not been proved
beyond a reasonable doubt.
62. Resultantly:
a) Crl.A.No 940 of 2018, Crl.A.No. 959 of 2018, Crl.A.No. 965 of 2018 and
Crl.A.No.1057 of 2018 are allowed.
b) Crl.A.No.1132 of 2018 is closed as the appellant had expired during the
pendency of the proceedings.
c) We reject the request for confirmation of the death sentence and dismiss
DSR.No.6 of 2018.
d) Thefindingofguilt,convictionandsentencepassedagainstaccusedNos.1,
4, 5, 6, are set aside.
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e) The 1st accused shall be set at liberty if his continued detention is not
required in connection with any other case.
f ) The appellants in Crl.A.No.940 of 2008, Crl.A.No.959of2018,Crl.A.No.965
of2018,beingonbail,theirbailbondswillstandcancelled,andtheyareset
at liberty.
d/-
S
RAJA VIJAYARAGHAVAN V,
JUDGE
d/-
S
K. V. JAYAKUMAR
JUDGE
PS/APM/2
7.08.2025
