[Cites 16, Cited by 0]
Kerala High Court
P.K.Latheef vs State Of Kerala on 9 February, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:10700
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 9TH DAY OF FEBRUARY 2026 / 20TH MAGHA, 1947
CRL.A NO. 399 OF 2019
CRIME NO.476/2008 OF IRITTY POLICE STATION, KANNUR
AGAINST THE JUDGMENT DATED 14.02.2019 IN SC NO.3 OF
2012 OF ADDITIONAL SESSIONS COURT - III THALASSERY
APPELLANTS/ACCUSED NO.3,5,7,8 & 9:
1 U.K.FAISAL, AGED 35 YEARS
S/O.ISMAIL, FATHIMA MANZIL, MUZHAKKUNNU AMSOM,
HAJI ROAD, CHAKKAD, KANNUR.(A3)
2 P.P.FAISAL, AGED 30 YEARS
S/O.ABU, PUTHIYAPURAYIL HOUSE, MUZHAKKUNNU AMSOM,
CHAKKAD, KANNUR (A5).
3 V.MUHAMMED BASHEER @ KARATE BASHEER,
AGED 35 YEARS, S/O.IBRAHIM, VAYYAPPARATHA HOUSE,
KEEZHUR AMSOM, MEETHALE PUNNAD, KANNUR.(A7)
4 THANALOT YAKOOB, AGED 39 YEARS, S/O.KADAR,
NASEEMA MANZIL, PAYAM AMSOM, THANTHOD,
KANNUR.(A8).
5 P.K.MUHAMMED FAROOK, AGED 45 YEARS
S/O.ABDULLA MUSLYAR, DHARUL RAHMA, KEEZHUR AMSOM,
DESOM, KANNUR. (A9).
BY ADVS.
SRI.M.P.ABDUL LATHEEF
SHRI.E.A.HARIS
SHRI.SUNNY MATHEW
SRI.P.VIJAYA BHANU (SR.)
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RESPONDENT/COMPLAINANT:
STATE OF KERALAREPRESENTED BY C.I.OF POLICE,
IRITTY POLICE STATION, KANNUR DISTRICT, THROUGH
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
KOCHI-682031.
ADV. SRI.T.R.RENJITH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
02.02.2026, ALONG WITH CRL.A.409/2019, THE COURT ON
09.02.2026 DELIVERED THE FOLLOWING:
CRL.A No.399/2019 &
CRL.A No.409/2019 :3: 2026:KER:10700
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 9TH DAY OF FEBRUARY 2026 / 20TH MAGHA, 1947
CRL.A NO. 409 OF 2019
CRIME NO.476/2008 OF IRITTY POLICE STATION, KANNUR
AGAINST THE JUDGMENT DATED 14.02.2019 IN SC NO.3 OF
2012 OF ADDITIONAL SESSIONS COURT -III, THALASSERY
APPELLANTS/ACCUSED NOS.1,2,4 & 14:
1 P.K.LATHEEF, AGED 32 YEARS
S/O.HAMMED, SAFEENA MANZIL, MUZHAKKUNNUAMSOM,
CHAKKAD, KANNUR (A1).
2 U.K.SIDIQUE, AGED 32 YEARS
S/O.NOORDHEEN, ULIYILKUNNU HOUSE,
MUZHAKKUNNUAMSOM, CHAKKAD, KANNUR (A2).
3 V.K.UNAIS, AGED 30 YEARS
S/O.KUNHIMOOSA, VELIKKOTH HOUSE,
MUZHAKKUNNUAMSOM, CHAKKAD, KANNUR (A4).
4 PANERI ABDUL GAFOOR @ GAFOOR,
AGED 31 YEARS
S/O.MUHAMMED @ MAMMOOTTY, PANERI HOUSE,
MUZHAKKUNNUAMSOM, VILAKODE, KANNUR (A14).
BY ADVS.
SRI.P.C.NOUSHAD
SRI.P.K.ABDURAHIMAN (POOLACKAL KARATCHALI)
SHRI.SUNNY MATHEW
SMT.NIKITTA TRESSY GEORGE
SHRI.E.A.HARIS
SRI.RENJITH B.MARAR
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RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA.
BY SRI.T.R.RENJITH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
02.02.2026, ALONG WITH CRL.A.399/2019, THE COURT ON
09.02.2026 DELIVERED THE FOLLOWING:
CRL.A No.399/2019 &
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JUDGMENT
Jobin Sebastian, J.
Both these appeals have been preferred challenging the
judgment of conviction and order of sentence passed against the accused
in S.C.No.3/2012 on the file of Additional Sessions Court-III, Thalassery for
offences punishable under Sections 143, 147, 148, 341, 324 and 302 r/w
149 of the IPC and Section 5(1)(a) r/w Section 27 of the Arms Act. Out of
the said appeals, Crl.A. No.409/2019 has been preferred by accused Nos.1,
2, 4 and 14 and Crl.A.No. 399/2019 is by accused Nos.3, 5, 7, 8 and 9. By
the impugned judgment, accused Nos.6, 10 to 13, 15 and 16 were
acquitted.
2. The prosecution case in brief is as follows:-
Dileepan, the deceased in this case, was the Secretary of
the Communist Party of India (Marxist) of the Chakkad branch and PW1
and PW2 were the workers of the said political party. The accused were
the workers of another political party, namely, the National Development
Front (NDF). As one of the workers of NDF, namely, Sainudheen was
murdered by CPI(M) activists, there arose a political rivalry between these
two parties, and the accused Nos. 1 to 16, who were the workers of NDF,
on 24.08.2008, formed themselves into an unlawful assembly armed with
deadly weapons in a coconut plantation of one Hamza situated at Chakkad
and in prosecution of the common object of the said assembly to murder
Dileepan, the accused wrongfully restrained Dileepan, who was enroute to
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his house, accompanied by PW1 and PW2 and attacked him with dangerous
weapons. The 1st and 14th accused allegedly hacked Dillepan with axes on
his face and head, the 2 nd accused hacked on his leg and shoulder with a
sword, and the other accused, who were holding dangerous weapons like
sword and axe, also inflicted injuries on Dillepan. When PW1 and PW2
attempted to escape by running from the spot, the 4 th accused, who
followed them, beat them on their back with a stick and hence inflicted
injuries on them. After the incident, though Dillepan was taken to Amala
Hospital, Iritty and thereafter for better management to Co-Operative
Hospital, Thalassery, he succumbed to the injuries. Hence, the accused are
alleged committed the offences punishable under Sections 143, 147, 148,
341, 324 and 302 r/w 149 of the IPC and Section 5(1)(a) r/w Section 27 of
the Arms Act.
3. On completion of the investigation, the final report was
submitted in this case before the Judicial First Class Magistrate Court,
Mattannur. Being satisfied that the case was one triable exclusively by the
Court of Session, the learned Magistrate, after complying with all the
necessary formalities, committed the case to the Court of Session,
Thalassery, under Section 209 of the Criminal Procedure Code. The learned
Sessions Judge, after taking cognizance of the offences, had made over the
case for trial and disposal to the Additional Sessions Court-III, Thalassery.
4. On appeareance of the accused before the trial court,
the learned Additional Sessions Judge, after hearing both sides under
section 227 of Cr.P.C. and upon perusal of the records, framed a written
charge against the accused for offences punishable under Sections 143,
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147, 148, 341, 324 and 302 r/w 149 of the IPC and Section 5(1)(a) r/w
Section 27 of the Arms Act. When the charge was read over and explained
to the accused, all of them pleaded not guilty and claimed to be tried.
5. During the trial, from the side of the prosecution, PW1
to PW24 were examined and marked Exts.P1 to P32. The contradictions in
the 161 statement of the prosecution witnesses brought out by the defence
were marked as Exts.D1 to D3. MO1 to MO34 series were exhibited and
identified. After the completion of the prosecution evidence, the accused
were questioned under Section 313 of Cr.P.C., during which all of them
denied all the incriminating materials brought out in evidence against
them. Thereafter, both sides were heard under Section 232 of Cr.P.C., and
as it was not a fit case to acquit under the said provision, the accused were
directed to enter on their defence and to adduce any evidence that they
may have in support thereof. From the side of the accused, one document
was marked as Ext.D4.
6. Thereafter, both sides were heard in detail, and finally,
the learned Additional Sessions Judge found accused Nos. 1 to 5, 7, 8, 9
and 14 guilty of the offences punishable under Sections 143, 147, 341, 324
and 302 r/w 149 of the IPC and Section 5(1)(a) r/w Section 27 of the Arms
Act and convicted them thereunder. In addition, the accused Nos. 1, 2 and
14 were found guilty of an offence punishable under Section 148 of the
IPC, and convicted for the said offence also.
7. For offence punishable under section 302 r/w 149 IPC,
the accused No.1 to 5, 7, 8, 9 and 14 were sentenced to undergo rigorous
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imprisonment for life and to pay a fine of Rs. 30,000/- each and in default of
payment of fine, they were ordered to undergo rigorous imprisonment for
one year. Likewise, for offence punishable under Section 143 of the IPC,
the accused Nos. 1 to 5, 7, 8, 9 and 14 were sentenced to undergo rigorous
imprisonment for a period of six months. For offences punishable under
Sections 341 and 324 r/w 149 IPC, the accused Nos.1 to 5, 7, 8, 9 and 14
were sentenced to undergo simple imprisonment for one month and
rigorous imprisonment for six months respectively. For offence punishable
under Section 147 r/w 149 of IPC, accused Nos. 3 to 5, 7, 8 and 9 were
sentenced to undergo rigorous imprisonment for one year. For the offence
punishable under Section 148, accused Nos. 1, 2 and 14 were sentenced to
undergo rigorous imprisonment for two years. Moreover, the accused
Nos.1 to 5, 7, 8, 9 and 14 were sentenced to undergo rigorous
imprisonment for a period of three years under Section 5(1)(a) r/w 27 of
the Arms Act. The substantive sentences were ordered to be run
concurrently. Challenging the findings of guilt, the conviction, and the
order of sentence passed by the trial court, accused No.1 to 5, 7, 8, 9 and
14 have preferred these appeals.
8. We heard Sri. P.Vijayabhanu and Sri. Renjith B.Marar,
the learned counsel appearing for the appellants and Sri. T. R. Renjith, the
learned Public Prosecutor appearing for the respondent.
9. This is a case in which a 32-year-old man named
Dileepan, a local-level leader of CPI(M), a political party, was brutally killed
due to political rivalry. The accused, who faced the charge for the murder
of Dileepan belong to NDF, another political party, and according to the
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prosecution, the said murder was a retaliation for an incident in which one
Sainudheen, an NDF activist, was allegedly killed at the hands of CPI(M)
activists. The incident that led to the death of Dileepan occurred on
24.08.2008 at 9.00 p.m. According to the prosecution, in the very same
incident, two other CPI(M) workers, who were then accompanying
Dileepan, also sustained injuries at the hands of the assailants.
10. The law was set in motion in this case on the strength
of the statement given by PW1, one of those injured in the incident, to
PW20, the Assistant Sub Inspector of Police, Iritti Police Station. Acting
upon this initial statement, PW19 registered the First Information Report
(FIR), marked as Ext.P11, alleging the commission of offences punishable
under Section 143, 147, 148, 324, 302 r/w 149 of the IPC. Following the
registration of the FIR, the Circle Inspector of Police, Iritti (PW21),
conducted the initial investigation in the case and later, PW23, his
successor-in-office, after compiling the evidence and materials collected,
filed the final report before the Jurisdictional Magistrate.
11. When PW1, the first informant, who is allegedly an
injured in the incident, was examined, he deposed that he is a resident of
Muzhakkunnu, Chakkad. He was acquainted with the deceased Dileepan
from childhood onwards, as both of them belonged to the same locality.
The deceased was the Secretary of CPI(M), Chakkad branch, and he was a
loyalist of the said party. The incident in this case occurred on 24.08.2008
at 9.00 p.m. On the said day, at 3.00 p.m., he, along with deceased
Dileepan and PW2, was near the Chakkad Ovappally area and was engaged
in joining subscribers for Desabhimani Daily. They were so engaged till
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8:30 p.m. At 8:30 p.m., they reached Ovappally and Dileepan purchased
tomato, onion and a packet of biscuits from the shop of one Murali (PW8).
Thereafter, he, along with PW2 and Dileepan, proceeded to the house of
Dileepan, and they were holding torch lights in their hand. They
accompanied Dileepan as there existed a life threat to Dileepan. Initially,
all of them proceeded through a pathway which passes near Chakkad
mosque and thereafter entered the property of one Hamza so as to go to
Dileepan's house. There was an old toilet in the said property. While they
were proceeding to the house of Dileepan through the said property,
around 10 to 16 NDF activists suddenly encircled them and attacked
Dileepan. Out of the assailants, he had an acquaintance with 5 to 10
assailants. The 1st accused, Latheef, uttered "സ ന ദ നന ന ന
ന" യ നന മകള ട and approached Dileepan with an axe. Then, Dileepan
said that "എട ലത ഫഫ ഞ ന ട ദ ല യ ട" ". Then the 1st accused replied
that "ന നന തനനയ ട ഫടണത " and hacked on the head and face of
Dileepan using the axe. At that time, Basheer (A7) and Farook(A9) caught
hold of Dileepan. Then Siddique (A2) hacked at the leg and shoulder of
Dileepan using a sword. At the time when A2 hacked, Dileepan attempted
to evade the attack. Then Yakoob (A8) also assisted in restraining
Dileepan. A8 was also holding an axe in his hand. Then Dileepan asked
him, as well as PW2, to escape. Afraid of the accused, when he, along with
PW2, was escaping from the spot and when he turned back, he saw Gafoor
(A14) hacking Dileepan with an axe. While running from the spot, Unnais
(A4) beat on his as well as PW2's back with a wooden stick. He witnessed
the incident in the torchlight held by him as well as PW2. Apart from that,
A3 and A5 were lighting torches from both sides of Dileepan. After
escaping from the spot, when he, along with PW2, reached the road near a
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mosque, they met Prakashan (PW3). When PW3 asked what happened, he
told him that NDF activists had hacked Dileepan and requested to save
Dileepan. Thereafter, they went to a hospital at Peravoor in an
autorickshaw and met a doctor. Both of them were admitted in the said
hospital. Then the police came and recorded his statement. Ext.P1 is the
said statement. PW1 identified A1 to A9 and A14 before the court.
However, in the chief examination itself, PW1 deposed that the names of
the other accused were stated by him to the Police as told by others who
came to see him in the hospital. When PW1 was confronted with two axes,
he identified the same as the weapons used by A14 and A1, and they were
marked as MO1 and MO2, respectively. The Lungi, shirt and chappal worn
by the deceased Dileepan at the time of the incident were marked as MO3
to MO5, respectively. According to PW1, the murder of Dileepan was a
retaliation for the murder of one Sainudheen.
12. The other witness, who allegedly sustained injury in
the incident, when examined as PW2, deposed in tune with the evidence
given by PW1. Before delving into a detailed discussion regarding the
evidence presented by the prosecution to prove the offence, it is significant
to consider the evidence of the doctor who conducted autopsy on the body
of the deceased Dileepan. The said doctor was examined as PW15, and the
post-mortem certificate issued by her was marked as Ext.P7. Referring to
Ext.P7 post-mortem certificate, PW15 deposed that it was on 25.08.2008,
while she was working as a civil surgeon in General Hospital, Thalassery,
that she conducted the post-mortem on the body of Dileepan. According to
PW15, in the post-mortem examination, she noted the following ante-
mortem injuries.
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1. Incised wound transversly placed 17x4 cm over the
right joint exposing the joint and cutting pattella.
2. similar incised wound 16x5 cm transversely placed on
the left knee cutting pattella and exposing the joint.
3. Incised wound 5x2 cm at index finger exposing
fracture carbel boll.
4. Abrasion 7 cm long right shoulder.
5. Incised wound 13x1 cm very deep obliquely placed on
the right cheek extending down to angle of mandible
(Jaw borne).
6. slanding T shape injury incised wound on the scalp on
parattal region of the TH side fracturing skull exposing
brain matter. Horizondal injury measures 10 cm
directed downwards and latering and vertical limb of T
directed laterly and downwards extending upto right
eye.
7. Incised wound 4x1 cm vertically placed at cheek.
8. Incised wound 13x14 cm below chin very deep and
transversely place and cutting trachea, oesophagus
(trachea means wind pipe, oesophagus means food
pipe) upto the anterior ligament of spine.
9. Small incised wound 4x2 cm just below and lateral to
injury No.8.
10. Incised wound 5x4 cm left shoulder exposing borne.
11. Abrasion 12 cm long over left shoulder.
12. Incised wound 13x6 cm behind left thigh near knee
very deep and exposing muscle.
13. PW15 opined that the death was due to head injury and
other multiple injuries. Likewise, she added that injuries to the brain and
cutting the trachea (injury nos.6 and 8) are fatal injuries ordinarily
sufficient to cause death. When PW15 was confronted with MO1 and MO2
weapons, she deposed that injuries nos 6 and 8 could be caused by those
weapons. A conjoint reading of the evidence of PW15 and the post-mortem
certificate issued by her undoubtedly and convincingly establishes that the
death of the deceased was homicidal in nature.
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14. It was mainly relying upon the evidence of PW1 and
PW2, who were alleged to have sustained injuries in the very same
incident, that the prosecution attempted to prove its case. There can be no
dispute with the settled legal position that the testimony of an injured
witness is ordinarily accorded a special status in law, as such a witness
carries an inherent assurance of having been present at the scene and
would not normally shield the real assailants in order to falsely implicate
innocent persons, in the absence of any motive for false implication.
15. However, in the present case, the appellants are
seriously disputing the very presence of PW1 and PW2 at the scene of the
occurrence. According to the learned counsels for the appellants, PW1 and
PW2 are planted witnesses and were not even present at the place of
occurrence at the relevant point of time. It is further contended from the
side of the appellants that the injuries alleged sustained by PW1 and PW2
are not connected with the incident in question and are self inflicted one.
According to the learned counsels for the appellants, PW1 and PW2 were
introduced as witnesses at the instance of the Police under the influence of
the ruling party, namely the CPI(M).
16. In order to prove that PW1 and PW2 also were with
the deceased at the time of the incident, the prosecution mainly relies upon
the evidence of PW3, who allegedly saw PW1 and PW2 immediately after
the incident in a panic state, and the evidence of PW8, a shop owner who
allegedly witnessed PW1 and PW2 accompanying Dileepan, from his shop
immediately prior to the occurrence. Apart from the testimony of PW3 and
PW8, the prosecution also relies upon the medical evidence adduced in the
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case to show that immediately after the incident, PW1 and PW2 had sought
medical treatment for the injuries allegedly sustained by them.
17. It is true that, in order to substantiate the
prosecution's case that, after the incident, PW1 and PW2 sought treatment
from the Co-operative Hospital, Peravoor, the wound certificates issued
from the said hospital were produced and marked as Exts. P27 and P28.
The doctor who actually prepared the said certificates was not examined as
a witness in this case. Instead, another doctor, who was acquainted with
the signature of the doctor who prepared the wound certificates, was
examined as PW22. Referring to Exts. P27 and P28, PW22 deposed that on
24.08.2008, both PW1 and PW2 sought medical treatment at the said
hospital with an alleged history of assault at 8.30 p.m. at Ovapally. A
perusal of Exts. P27 and P28 reveal that Ext. P27 pertains to the
examination of PW1, while Ext. P28 pertains to the examination of PW2. In
Ext. P27, it is mentioned that an injury was noted on the left lower back of
PW1 without giving any description of the said injury and in Ext.P28, it is
mentioned that tenderness was noted on the right shoulder region of PW2.
18. However, the above-discussed medical evidence,
including the wound certificates, was seriously assailed by the learned
counsel for the appellants on the ground that the said evidence was
fabricated. The learned counsel pointed out various grounds to disbelieve
the authenticity of the medical evidence adduced to show that PW1 and
PW2 had also sustained injuries in the very same incident. One of the
grounds highlighted on behalf of the appellants was that, the hospital
where PW1 and PW2 sought medical treatment is run by a Co-operative
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Society headed by leaders of the CPI(M), the political party to which the
deceased, PW1, and PW2 admittedly belong. Furthermore, it was
contended on behalf of the appellants that it is highly suspicious that PW1
and PW2 chose to seek medical treatment from the said hospital, which is
admittedly situated about 15 kilometres away from the place of
occurrence, when other hospitals were available in the nearby locality.
19. We are also of the view that there are several
circumstances giving rise to serious doubt regarding the medical evidence
adduced by the prosecution in respect of the medical examination of PW1
and PW2 immediately after the incident. Notably, the date of examination
mentioned in Exts. P27 and P28 wound certificates are on 24.08.2008.
However, in the very same certificates, it is stated that they were prepared
on 07.10.2008. Likewise, the said wound certificates are shown to have
been issued on 07.10.2008 and produced before the court only on
16.12.2009. It is highly suspicious that there was such an inordinate delay
in the preparation and issuance of the wound certificates, particularly
when, in medico-legal cases, wound certificates are usually prepared
without much delay from the time of examination of the injured.
20. Another crucial aspect which cannot be ignored is
that, during examination before the court, PW22, the doctor categorically
deposed that the hospital in question is run by a Co-operative Society
functioning under the leadership of the CPI(M). Further, the evidence on
record establishes that the hospital is situated approximately 15 kilometres
away from the place of occurrence. It has also emerged in evidence that
several other hospitals are available within a radius of about 5 kilometres
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from the scene of occurrence. Even according to the prosecution's case,
the deceased was initially taken to a hospital situated within a radius of 5
kilometres from the place of occurrence. In such a situation, the conduct of
PW1 and PW2 in travelling a much longer distance, bypassing nearby
hospital facilities, appears highly unnatural and suspicious. Therefore, a
conjoint reading of the delayed preparation and issuance of the wound
certificates, the delayed production of the wound certificate before the
court, the political control over the hospital, and the conduct of PW1 and
PW2 in opting for a hospital situated 15 kilometres away from the place of
occurrence, while skipping other nearby hospitals, makes it apparent that
the possibility of manipulation cannot be ruled out.
21. Moreover, referring to Ext. P27 wound certificate,
PW22 deposed that the nature of the injury allegedly sustained by PW1
was not mentioned in the said certificate. A perusal of Ext. P27 would
reveal that it merely records an "injury on the left lower back." Curiously,
neither the nature nor the size of the alleged injury is specified in Ext. P27.
Likewise, with reference to Ext. P28, PW22 deposed that the injury noted
in the wound certificate pertaining to PW2 is "tenderness on the right
shoulder region." Notably, during cross-examination, PW22 stated that
such an injury could be superficial or even self-inflicted. In that context, it
is evident that, even assuming that any injuries were sustained in the
incident, the same were only trivial in nature. Therefore, the conduct of
PW1 and PW2 in immediately seeking medical treatment for such trivial
injuries, while completely ignoring the grievously injured deceased and
failing to render any assistance in taking him to a hospital, appears wholly
unnatural and contrary to normal human conduct. Consequently, we are of
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the considered view that it is unsafe to rely solely on the medical evidence
adduced in this case to conclude that PW1 and PW2 were present with the
deceased at the time of the commission of the alleged offence or that they
sustained injuries in the same incident.
22. However, it is significant to note that it is not a case
where the prosecution is relying on the above-discussed wound certificates
alone to prove the presence of PW1 and PW2 at the crime scene along with
the deceased, rather the prosecution had examined two other crucial
witnesses to show that PW1 and PW2 were also with the deceased at the
time of commission of the offence. PW3 and PW8 are the said witnesses
examined by the prosecution to prove the said aspect. Therefore, it is
worthwhile to have a look at the testimonies of PW3 and PW8.
23. According to PW3, he resides near the Chakkad
Madrasa and was formerly a Grama Panchayat member. On 24.08.2008, at
around 9.00 p.m., Raveendran (PW13), who is employed in the Excise
Department, telephoned him and informed him that some commotion was
taking place inside the property of one Hamza and enquired whether PW3
was aware of the same. PW3 replied that he was unaware of it and
disconnected the call. After a short while, PW13 again contacted PW3 and
informed him that something serious was happening at the said place and
requested him to make enquiries. Thereupon, PW3 proceeded to the place
of occurrence. When PW3 reached near the Madrasa, he saw Gireesh
(PW1) and Rajan (PW2). PW1 and PW2 then uttered that NDF workers
were killing Dileepan, and, uttering so, they ran towards Mayiladumpara
Bhagom. However, neither of them disclosed the names of any of the
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assailants. PW3 then proceeded to the place of occurrence and found
Dileepan lying there in a pool of blood. At that time, Nanu (PW4), the uncle
of Dileepan, rushed to the scene, and one or two other persons were also
present there.
24. PW3 thereafter rushed to his house and attempted to
arrange a vehicle by making phone calls. Then he returned to the scene of
the occurrence and found PW4, along with one or two other persons,
taking the injured Dileepan towards the road. Both legs of Dileepan were
found severed and hanging. There was also a grievous hack injury on his
neck and injuries on his head. By that time, a Police jeep arrived, and PW3,
along with others, took Dileepan to Amala Hospital, Iritty, in the said jeep.
From there, Dileepan was shifted to the Co-operative Hospital, Thalassery,
for better treatment. Shortly after reaching there, the doctor declared that
Dileepan had succumbed to the injuries. According to PW3, when he
initially reached the place of occurrence, he saw some persons running
away from the spot carrying weapons, but he could not identify them as
they were not known to him. PW3 admitted that he was a member of the
CPI(M) and was engaged in social work till the death of Dileepan.
However, he stated that he discontinued his political activities after the
incident in this case.
25. Undisputedly, the main evidence relied upon by the
proseuciton to establish that PW1 and PW2 were present with the
deceased at the time of the incident is the above evidence of PW3.
However, the learned counsel for the appellants strenuously contended
that the evidence of PW3 in this regard is unreliable. It was argued that
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PW3 himself admitted that he was a local-level leader of the CPI(M) and,
therefore, he cannot be treated as an impartial witness but is an interested
witness. The learned counsel further submitted that the sequence of events
narrated by PW3 itself indicates that there was insufficient time for PW3,
after receiving information over the phone, to proceed from his house and
encounter PW1 and PW2 en route, allegedly uttering that Dileepan had
been hacked by NDF workers.
26. While considering the aforesaid contention, it is
significant to note that even according to the prosecution's case, PW3
came to know about the incident through PW13 over the telephone, and
initially, he did not treat the information as serious. It was only after
receiving a second call from PW13 that he decided to proceed to the place
of occurrence. Similarly, the evidence of PW13 reveals that he came to
know about the incident from one Narayani(PW24), who resides at a
distance of about 50 metres from the place of occurrence. PW13 further
deposed that Narayani reached his house at around 9.00 p.m. and
informed him that she had heard loud cries and seen torchlight at the
scene. Thereafter, PW13 attempted to contact Dileepan (the deceased) on
his mobile phone three times, but the calls went unanswered. It was only
thereafter that he contacted Prakasan (PW3) twice. According to PW13, he
then informed the Police over the phone.
27. PW13 further stated that subsequently, he heard a
collective loud cry from the place of occurrence, following which one
Navaneeth rushed to his house and informed him that Dileepan had been
hacked by some persons and requested him to arrange a jeep. PW13 then
CRL.A No.399/2019 &
CRL.A No.409/2019 :20: 2026:KER:10700
proceeded towards the road and, upon reaching near the mosque, found
the injured Dileepan lying on the lap of one Satheesan. Shortly thereafter,
a Police jeep arrived and took Dileepan to the hospital. PW3 and one
Kunhambu (PW17) allegedly accompanied the injured to the hospital.
PW13 also deposed that he contacted PW3 within five minutes of Narayani
informing him about the incident.
28. Likewise, the evidence of PW3 indicates that the first
call from PW13 was not taken seriously and that it was only after the
second call, made within five minutes of the first call, that PW3 proceeded
to the place of occurrence. According to PW3, when he reached near the
Chakkad Madrasa, he found PW1 and PW2 coming towards him in a state
of panic.
29. Thus, for PW3 to have seen PW1 and PW2 immediately
after the occurrence, the entire sequence of events, namely Narayani
informing PW13, PW13 making three unsuccessful phone calls to the
deceased, PW13 making two phone calls to PW3, and PW3 proceeding to
the scene, must have taken place in rapid succession. Given the time
necessarily consumed by these events, such a version appears highly
improbable, particularly when the prosecution's case itself is that PW1 and
PW2 escaped from the scene immediately at the inception of the incident.
30. Moreover, although PW13 deposed that he saw
Dileepan lying injured on the lap of one Satheesan when he reached the
road, the said Satheesan was not examined as a witness. That apart, during
cross-examination, PW13 admitted that in his statement to the police, he
CRL.A No.399/2019 &
CRL.A No.409/2019 :21: 2026:KER:10700
had not stated that he saw Prakasan (PW3) at the road or that Prakasan
accompanied the injured to the hospital. Therefore, even the presence of
PW3 near the Madrasa immediately after the incident becomes doubtful.
31. Apart from the above, PW3 deposed that when he
reached near the Chakkad Madrasa, he saw PW1 and PW2 running in panic
and shouting that NDF workers were killing Dileepan. However, PW3 has
no case that PW1 and PW2 stopped upon seeing him or sought his
assistance to take the injured to the hospital. Likewise, PW1 and PW2 also
do not claim that they stopped and assisted in taking the injured to the
hospital. Such conduct is highly unnatural and contrary to ordinary human
behaviour, especially when the prosecution case is that PW1 and PW2 were
accompanying Dileepan due to the threat he was facing from NDF workers.
In the normal course of human conduct, they would have stopped and
rendered assistance. Therefore, the testimony of PW3 that he saw PW1 and
PW2 immediately after the incident cannot be believed. In a recent
judgment in Nimai Ghosh v. State of Bihar (now Jharkhand) - [2025 SCC
Online SC 2337], the court observed that in cases where an eye-witness to
an incident takes no steps whatsoever to save the life of the deceased and
leaves the place of the incident wihout furnishing any information to the
Police or intimating the relatives or friends of the deceased, then his
conduct cannot be seen as that of a normal human being, and his conduct
would be relevant fact while testing his evidence for credibility.
32. The prosecution further relies on the testimony of
PW8 to establish that immediately prior to the incident, PW1 and PW2
were in the company of the deceased. PW8 deposed that on the date of the
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incident, at about 8:15 p.m., Dileepan came to his provision-cum-tea shop
at Ovapally along with Rajan (PW2) and another person. According to PW8,
after purchasing certain items, Dileepan left the shop at around 8:30 p.m.,
accompanied by PW2 and the said other person.
33. However, this evidence is insufficient to establish the
presence of PW1 and PW2 at the place of occurrence. As evident from the
testimony of PW8, the place called Mayiladumpara is situated about 750
metres from his shop, and from Mayiladumpara, there is another distance
of approximately 750 metres to Chakkad Juma Masjid. Thus, there is a total
distance of nearly 1½ kilometres between PW8's shop and the place of
occurrence. In these circumstances, the possibility of PW1 and PW2
parting ways with the deceased before reaching the place of occurrence
cannot be ruled out. Consequently, the feeble evidence of PW8 alone is
insufficient to conclusively establish the presence of PW1 and PW2 at the
place of occurrence along with the deceased.
34. As already stated, it was based on Ext.P1 statement
given by PW1 that the present case was registered and the investigation
was started. Curiously, in Ext.P1 statement, the names of all assailants,
more particularly all the 16 accused, were clearly mentioned along with
their respective parentage. While appreciating this aspect, it cannot be
lost sight of that from the very inception, the defence has consistently
contended that the names of assailants were incorporated in the FIR on
the basis of a list allegedly supplied by the leaders of CPI(M), a political
party to which PW1 and PW2, as well as the deceased Dileepan, were
affiliated. In that context, the detailed mention of the names of all the
CRL.A No.399/2019 &
CRL.A No.409/2019 :23: 2026:KER:10700
accused, along with their parantage assume significance and creates a
certain amount of doubt in the mind of this Court.
35. Notably, when PW1 was examined before the court,
he deposed that he had stated the names of ten accused in his statement
on the basis of his own knowledge, whereas the names of the remaining six
persons were furnished on the basis of the information given to him by
those who came to the hospital after the incident. This version given by
PW1 would indicate that, before the lodging of FIS, there occurred some
consultations and deliberations in the hospital. In such circumstances, the
possibility projected by the defence that the names of all accused were
incorporated after due deliberations cannot be brushed aside. Moreover,
though PW1 deposed that, names of some of the accused were mentioned
by him in the statement given to the police based on the information given
by those who came to the hospital, during cross-examination, he stated
that at the time when his statement was recorded by the police, he had not
stated the said fact to the police.
36. Likewise, during the chief examination, PW1 had
deposed about the overt acts committed by some of the accused and about
the weapons used by them. PW1 deposed that the 1st accused hacked on
the head and face of Dileepan using the MO2 axe, and at that time,
Basheer(A7) and Farook(A9) were catching hold of Dileepan. Then Sidique
(A2) hacked at the leg and shoulder of Dileepan using a sword. At the time
when A2 hacked, Dileepan attempted to evade the attack. Then
Yakoob(A8) also assisted in restraining Dileepan. A8 was also holding an
axe in his hand. Then Dileepan asked him, as well as PW2, to escape.
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CRL.A No.409/2019 :24: 2026:KER:10700
Afraid of the accused, when he, along with PW2, was about to escape from
the spot and when he turned back, he saw Gafoor(A14) hacking Dileepan
with the MO1 axe. While they attempted to rescue by running from the
spot, Unnais(A4) beat on his as well as PW2's back with a wooden stick.
Moreover, PW1 deposed that during the incident, A3 and A5 were lighting
torches from both sides of Dileepan.
37. However, during cross-examination, PW1 deposed
that he does not remember whether he had stated to the police that A7 and
A9 were catching hold of Dileepan while A1 hacked him. PW20, the police
officer who recorded Ext.P1 statement, and PW21, the investigating officer,
admitted that PW1 had not stated so in his statement to the police.
Likewise, PW1 admitted that he had failed to state before the police that
A8 was holding an axe in his hand and that A8 had wrongfully restrained
Dileepan. The said omission stands proved through the evidence of PW20,
who recorded the statement of PW1. Further, from the evidence of the
investigating officer, it is established that at the time of recording PW1's
statement, PW1 had not stated that while attempting to escape from the
spot and on turning back, he saw A14 hacking Dileepan with an axe.
Likewise, from the evidence of the investigating officer, it is proved that
PW1 had not stated to the police that A3 and A5 were lighting torches from
either side of Dileepan.
38. Notably, the testimony of PW2 is also marred by lot
of improvements. Although during the chief examination, PW2 deposed
that he saw A14 holding an axe in his hand, PW21 categorically stated that
no such statement was given by PW2 to the police. Likewise, during the
CRL.A No.399/2019 &
CRL.A No.409/2019 :25: 2026:KER:10700
chief examination, PW2 deposed that while he was running away from the
spot, A4 beat him on his back. However, PW21 admitted that PW2 had not
stated this fact to the police. Moreover, PW21 deposed that PW2 had not
stated before the police that A7, A8, and A9 had caught hold of Dileepan.
Similarly, PW21 further deposed that PW2 had not stated to the police that
A3 and A5 were lighting torches towards Dileepan at the time of the
incident.
39. We are not oblivious to the fact that when there are
several assailants and numerous injuries are inflicted, it may not be
possible for a witness to give a videographic or minute account of the
incident to the police with respect to each and every overt act. Therefore,
minor omissions in the statement given to the police may not, by
themselves, be of serious consequence. However, when the very presence
of PW1 and PW2 at the scene of occurrence is under challenge, such
omissions relating to material and serious aspects of the incident assume
significance and have to be considered in conjunction with other attendant
circumstances, which probabilise the defence case that PW1 and PW2
were, in fact, not present at the scene of crime at the time of commission
of the offence.
40. Before parting with the case, it is apposite to advert
to the serious lapses in the investigation. The prosecution's case is that,
after the commission of the offence, the assailants escaped from near the
place of occurrence in a blue-coloured jeep bearing Registration
No. KL-11-C-7927.
CRL.A No.399/2019 &
CRL.A No.409/2019 :26: 2026:KER:10700
41. The evidence of PW9 reveals that, on the alleged date
of the incident, after 9.00 p.m., while he was walking to his house along
with one Gangadharan from the shop of Abdul Rahiman, he saw a blue-
coloured jeep approaching at a frantic speed. He claims to have seen
accused Nos. 1, 3, 6, and 16 inside the jeep, all of whom appeared to be in
a belligerent mood. According to PW9, when he later reached near the
mosque, he found Dileepan lying on the lap of Satheesan with several
grievous injuries. Soon thereafter, a police jeep arrived, and Dileepan was
taken to the hospital. Similarly, the evidence of PW13 indicates that, upon
coming to the road after learning about the incident, he too saw a blue-
coloured jeep proceeding at high speed.
42. Notably, when the Investigating Officer was examined
as PW21, he deposed that, in the course of the investigation, it was
revealed that the said jeep belonged to one Bushara, the sister of Sajeer.
The said jeep was also taken into custody as part of the investigation.
However, it is surprising that the RC particulars of the jeep were not
obtained from the Motor Vehicle Department, and that Bushara, along with
her brother Sajeer, were not cited or examined as witnesses by the
prosecution. PW21, the Investigating Officer, admitted that he did not
interrogate Bushara or Sajeer as part of the investigation. Had the owner
of the vehicle been examined, such evidence could have been vital and
crucial to the prosecution's case. Such a lapse cannot be viewed lightly.
The failure of the investigating Officer to record the statements of these
material witnesses has, in fact, afforded the defence an opportunity to
contend that their examination would have been favourable to the accused
and would have assisted in establishing their innocence.
CRL.A No.399/2019 &
CRL.A No.409/2019 :27: 2026:KER:10700
43. Furthermore, the case of PW21, the Investigating
Officer is that MO2 axe was recovered on the basis of a disclosure
statement given by the first accused. As evident from Ext. P10 recovery
mahazar, the said recovery was effected on 28.04.2009. Likewise, MO1
axe, the weapon allegedly used by A14, was recovered on the strength of a
disclosure statement allegedly given by A14 on 03.01.2009. The inordinate
delay in effecting the recoveries of the weapons casts grave doubt on the
genuineness and reliability of the recovery proceedings.
44. Moreover, the attestors to the recovery mahazars
admitted their political affiliation. PW18, an attestor to the recovery
mahazar pertaining to MO2 axe, admitted that he is the Local Secretary of
CPI(M), Kakkengad and that he resides about 3 kilometres away from the
place of recovery. He further admitted that he is an accused in another
case, which alleges that he, along with other CPI(M) workers, trespassed
into the house of certain BJP-RSS workers and committed mischief by
setting the house on fire and destroying agricultural crops. Likewise,
PW17, an attestor to Ext. P9 recovery mahazar prepared in connection
with the recovery of MO1 axe allegedly used by A14, admitted that he also
resides about 3 kilometres away from the place of recovery. According to
PW17, he is a relative of Gangadharan(PW10), who is a CPI(M) Branch
Secretary, Chakkad and also belongs to the same party as that of the
deceased. Therefore, the delayed recoveries, coupled with the political
affiliation of the recovery witnesses, who admittedly reside far away from
the place of recovery, cast serious doubt on the reliability of the recovery
evidence adduced in this case. The same also casts a serious shadow on
the fairness and credibility of the investigation.
CRL.A No.399/2019 &
CRL.A No.409/2019 :28: 2026:KER:10700
45. Apart from the attestors of the recovery mahazar, it
is also not in dispute that all other material witnesses cited by the
prosecution and examined before the court belong to CPI(M) political
party. It is well settled that merely because a witness belongs to the same
political party as the deceased, or is in inimical to the accused, his
evidence cannot be discarded outright. However, where the entire
prosecution case rests exclusively on the testimony of witnesses belonging
to one political fraction, the court is duty bound to subject such evidence to
strict and cautious scrutiny. In such circumstances, the prosecution is
expected to place before the court independent corroborative material
lending assurance to the partisan version.
46. In the present case, defence has raised a specific
allegation that the names of the accused were supplied by CPI(M) leaders
owing to political rivalry and that the names were mechanically
incorporated in the FIR. Therefore, the absence of independent witnesses
coupled with the fact that all the witnesses examined are politically aligned
with the deceased creats a reasonable apprehension that the investigation
lacked fairness. In cases arising out of political rivalry, the possibility of
false implication of opponents cannot be ruled out and the prosecution
evidence must be of unimpeachable quality. In the present case, even the
presence of the witnesses who allegedly witnessed the occurrence and
sustained injuries itself is in doubt for the reasons which we have detailed
above and hence, their evidence cannot be acted upon in the absence of
other independent corroborative piece of evidence.
CRL.A No.399/2019 &
CRL.A No.409/2019 :29: 2026:KER:10700
47. We have already found that the wound certificates
relating to the examination of PW1 and PW2 were prepared and issued
only on 07.10.2008, that is, about one and a half months after the incident.
Notably, the said certificates reached the court only on 16.12.2009. The
delayed collection of the said wound certificates by the Investigating
Officer and their belated production before the Court also afforded the
defence an opportunity to allege manipulation and to challenge even the
presence of PW1 and PW2 at the scene of the crime, along with the
deceased.
48. We are not oblivious to the settled legal principle that
mere lapses or defects in investigation, or even a faulty investigation, by
themselves do not constitute a ground for acquittal. Courts are required to
independently evaluate the evidence on record and determine whether the
prosecution has otherwise succeeded in establishing the guilt of the
accused beyond reasonable doubt. However, such lapses can be ignored
only when there exists clear and convincing evidence to prove the guilt of
the accused. In the present case, on an overall appreciation of the evidence
adduced by the prosecution, this Court finds that there is no such
convincing or trustworthy evidence to establish the guilt of the accused
beyond reasonable doubt. Therefore, the serious lapses in the investigation
cannot be brushed aside as inconsequential.
In the result, Crl.A. Nos. 409/2019 and 399/2019 are allowed. The
impugned judgment of conviction and order of sentence in S.C. No. 3/2012
on the file of the Additional Sessions Court-III, Thalassery, passed against
the appellants, are set aside, and they are acquitted. Accused Nos. 1, 2, 3,
CRL.A No.399/2019 &
CRL.A No.409/2019 :30: 2026:KER:10700
4, 5, 7, 8, 9, and 14 shall be set at liberty forthwith from the prison
concerned, if their continued detention is not required in connection with
any other case. The Registry shall communicate this judgment forthwith to
the concerned Jail Superintendent, where the appellants are undergoing
incarceration.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
vdv
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CRL.A No.409/2019 :31: 2026:KER:10700
APPENDIX OF CRL.A NO. 399 OF 2019
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE CERTIFICATE ISSUED
FROM AMALA MULTI SPECIALITY HOSPITAL,
IRITTY
CRL.A No.399/2019 &
CRL.A No.409/2019 :32: 2026:KER:10700
APPENDIX OF CRL.A NO. 409 OF 2019
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE PROCEEDINGS OF THE
SUPERINTENDENT OF CENTRAL PRISON,
KANNUR DATED 14.11.2022 GRANTING LEAVE
TO THE PETITIONER
Annexure A2 A TRUE COPY OF THE DISCHARGE SUMMARY ON
MRS. RAMLA, THE MOTHER-IN-LAW OF THE
PETITIONER
Annexure A3 A TRUE COPY OF THE MEDICAL CERTIFICATE
DATED 22.06.2023 ISSUED FROM THE ASTER
MIMS HOSPITAL, KANNUR
Annexure- A1 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE CHAIRPERSON OF THE STANDING
COMMITTEE OF MUZHAKKUNNU GRAMA PANCHAYT
ON 31.07.2023
