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Thursday, May 18, 2017

The other glaring aspect is non-conduction of the test identification parade. This aspect gains relevance as PW4 and PW5, who are cited as eye witnesses to the incident, deposed that they have not mentioned the names of the accused and that they did not know the accused. Therefore we find that the prosecution case is filled with infirmities and lacunas, therefore the only possible and probable course left open is to grant benefit of reasonable doubt to the appellant herein. Resultantly, the impugned judgment is set aside and the appeal is allowed. The bail bonds of the appellant stands discharged.


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPEAL NO. 841 OF 2007

KANAKARAJAN @ KANAKAN                        …     APPELLANT


STATE OF KERALA                                            …RESPONDENT



This appeal is directed  against  the  Judgment  dated  8th  November,  2006
passed by the High Court of Kerala in Criminal  Appeal  No.  1906  of  2004,
wherein  the  High  Court  has  dismissed  the  appeal  preferred   by   the
accused/appellant herein and upheld the order  of  conviction  and  sentence
passed by  the  learned  Additional  Sessions  Judge,  Fast  Track  Court-I,
Palakkad, in Sessions Case No. 104 of 2002.

The material available on record reveals  that  initially  there  were  nine
accused in this case against whom an FIR was registered at 9 am on  6.3.2000
at Kongad Police Station for causing the death of one  Rajesh  and  injuring
the complainant/Vinod (PW2), who happens to be the cousin of  the  deceased.
Since the accused No. 2 (Ayyappankutty) was found hanging  from  a  tree  on
the next day and was declared dead, charges were framed   only  against  the
remaining accused under Sections 143, 147, 148, 302, 342 and 324 r/w 149  of
Indian Penal Code, 1860 [hereafter  ‘IPC’  for  brevity].  The  Trial  Court
acquitted A3, A4, A6, A7,  A8  and  A9  of  the  charges  and  convicted  A1
(Kanakarajan) and A5 (Sukumaran) for the offences punishable under  Sections
143, 147, 148, 342 and 302 r/w 149 of IPC.  On an  appeal,  the  High  Court
acquitted A5 of all the charges but  upheld  the  order  of  conviction  and
sentence as against A1  (Kanakarajan)  who  is  before  us  in  the  present

The brief facts of the case as unfolded from  the  case  of  prosecution  is
that, on the intervening night of 5th and 6th March, 2000, an ox  procession
was going on at Kunnappully temple at Tharakassery and  several  people  had
gathered around the temple premises. At about 2 A.M,  accused  attacked  the
deceased Rajesh, with deadly weapons such as swords and sticks, as a  result
of which he sustained grievous injuries. When  the  complainant—Vinod  (PW2)
tried to intervene and stop the  accused,  he  too  was  beaten  up  by  the
accused. While  the  general  public  started  gathering  at  the  place  of
incident, the accused party took to their heels. With the help  of  some  of
the people assembled there, PW2 took the injured Rajesh in his jeep  to  the
Fort Hospital where the doctor advised to shift the injured  Rajesh  to  the
Medical College Hospital, Thrissur. On  the  way  to  the  Medical  College,
Rajesh succumbed to the injuries at about 5.30 A.M.

Based on the information furnished by the complainant-Vinod/PW2  (cousin  of
the deceased), Sub-Inspector (PW 21) at  Kongad  Police  Station  registered
the case as  Crime  No.  56/2000.   PW22  (Circle  Inspector)  took  up  the
investigation and carried it through to a larger extent and  his  successor,
Circle Inspector (PW23) concluded the investigation  and  filed  the  charge
sheet against all the nine accused persons,   who  pleaded  not  guilty  and
claimed trial.

The prosecution in order  to  bring  home  the  guilt  of  the  accused  has
produced 23 witnesses and the defense has produced one witness. Out  of  the
aforesaid 23 prosecution  witnesses,  PW3  who  was  an  eyewitness  to  the
incident, turned hostile. PWs 11 and 12, who were witnesses to the  recovery
mahazar (Ext. P10), also turned hostile.  PW11 being the panch  witness  for
the recovery of ‘vadival’, allegedly the  weapon  used  for  committing  the
crime,  did  not   support   the   case   of   the   prosecution.   In   the
accused/appellant’s statement under Section 313, Cr.P.C, he had stated  that
on the eve of Kummati festival he went to the temple to pay respects to  the
deity and while having a soda drink from a roadside shop, he saw a group  of
people running  into  the  temple  compound  and  heard  from  someone  that
Haridas, Vinod (PW2) and Rajesh (deceased)  were  attacking  Ayyappan  Kutty
(A2). While he was trying to see from a closer point, as to  what  is  going
on, someone among the crowd said  some  persons  have  taken  away  Ayyappan
Kutty (A2).  On the next day i.e.  7.3.2000  at  about  9.30  A.M,  Ayyappan
Kutty was found hanging from a tree while his legs were touching the  ground
and there were injury marks on  A2’s  body.  When  he  went  to  the  police
station to report the same, the police arrested  him  and  foisted  a  false
case upon him, though he had nothing to do with the incident.

The Trial Court, after a full-fledged trial has come to the conclusion  that
the prosecution could not prove the guilt of accused A3, A4, A6, A7, A8  and
A9 beyond reasonable doubt and acquitted them by extending the   benefit  of
doubt. However, the Trial Court found A1 and A5 guilty of the  offences  and
sentenced them under Section 302, IPC to imprisonment for life and to pay  a
fine of Rs.10,000/- each and in default, to  undergo  rigorous  imprisonment
for six months. Further under Section 342, IPC, the accused  were  sentenced
to undergo rigorous imprisonment for a period of six  months  under  Section
143 and for a period of one year under Section 148, IPC. The sentences  were
however directed to run concurrently.

Aggrieved by the conviction both appellant/A1  and  A5  carried  the  matter
over to the High Court in appeal, where  the  High  Court  gave  benefit  of
doubt to A5 and allowed  his  appeal  by  acquitting  him  of  the  offences
charged. The appeal of appellant/A1 was however dismissed by the High  Court
as being devoid of any merit, thereby confirming  the  order  of  conviction
and sentence passed by the Trial Court.

We heard the  learned  senior  counsel  Mr.  R.  Basant  appearing  for  the
accused/appellant. He contended that  the  entire  case  is  fabricated  and
foisted one suppressing the real incident that had taken place in  order  to
falsely implicate the accused/appellant. He has vehemently argued  that  the
prosecution has  concocted  the  story  to  harass  the  accused  by  taking
advantage of his long standing rivalry with the deceased concerning  cutting
of some rubber trees. At the alleged place of incident, which  is  a  temple
compound, there were more than 10,000 people  present  in  addition  to  the
police force stationed around the temple compound. He points out that,  when
an incident of  such  grave  nature  had  taken  place  amidst  huge  public
gathering  and  police  force,  it  is  impossible  to  not  have  a  single
independent witness.

Another vital aspect pointed out by  the  learned  senior  counsel  is  that
making PW2  a  witness  to  the  alleged  incident  is  an  afterthought  of
prosecution. PW2—the  author  of  FIR  and  being  cousin  of  deceased,  in
connivance with his brother-in-law who was a Sub-Inspector of Police in  the
same district, is the mastermind in implicating the accused.   As  a  matter
of fact, on the night of the said incident, it  was  PW2  and  the  deceased
Rajesh who attacked A2 (the brother of A1) and kidnapped him, due  to  their
past enmity over cutting rubber trees belonging to  another  brother  of  A1
and A2. On the next day, the dead body of A2 was found hanging from  a  tree
under mysterious circumstances with his feet touching  the  ground.  Sixteen
(16) ante  mortem  injuries  were  found  in  his  body  and  some  greenish
poisonous substance was found oozing from his mouth.  When  A1  visited  the
police station to report the mysterious death  of  A2,  instead  the  police
arrested him in the present case. In order to save PW2,  his  brother-in-law
being Sub-Inspector of Police, concocted the prosecution story  and  falsely
implicated A1 in the case.  On A2’s mysterious death, the police had  merely
registered a case  of  unnatural  death  and  no  proper  investigation  was
conducted and no person was prosecuted or arrested.

Learned senior counsel further submitted that there was an inordinate  delay
of 24 hours on the part of police in presenting the  FIR  before  the  court
and no reason has been given by the prosecution for such delay.  He  further
contends that the motive behind the crime, as alleged  by  the  prosecution,
is so trivial and unbelievable, would not be a  sufficient  reason  for  the
accused to settle with such a heinous crime. Further he submits that it  was
well known fact among the people living in the vicinity  that  the  deceased
Rajesh was known to be a person of bad character in the locality as  he  has
previously indulged in various illegal  activities  and  had  disputes  with
several people.  According  to  learned  senior  counsel  this  fact  stands
corroborated with the evidence of PW’s 2 and 4. Doubting the reliability  of
prosecution witnesses, it is  submitted  that  out  of  the  23  prosecution
witnesses, PW3 (eyewitness) turned hostile. PW 11 (panch  witness)  did  not
support the prosecution case on recovery of  alleged  weapon.  The  presence
and conduct of PWs 4 and 5 (eyewitnesses) at  the  place  of  occurrence  is
highly doubtful because despite being close friends of  the  deceased,  even
after witnessing the incident, neither did they  accompany  the  injured  to
the hospital nor did they take effort to register a case  with  the  police.
Their statement was recorded by the police five  days  after  the  incident.
Even PW4 in his evidence did not mention the name and  presence  of  PW5  at
the alleged scene of offence. Learned senior counsel has  finally  submitted
that though the High Court discarded the statement of PW2  as  his  presence
at the place of offence was doubtful but the High Court still  believed  the
story of prosecution and convicted the  appellant  while  discharging  other
accused by giving them benefit of doubt. Hence, he prayed that the  judgment
of the High Court is perverse and that it is based on wrong  reasoning,  and
therefore needs to be set aside by this Court.

On the other hand, learned counsel appearing for  the  State  supported  the
prosecution case on all aspects and submitted that the  reasoning  given  by
the High  Court  in  convicting  the  accused  is  based  on  settled  legal
principles. The High Court clearly  recorded  the  finding  that  though  no
reliance is placed on the testimony made by the prime witness (PW2), it  may
not make any difference in fastening the liability of the  accused.   Hence,
the impugned judgment does not call for interference by this Court.

Having heard learned counsel for both side  and  after  carefully  analyzing
the material  available  on  record,  the  following  point  falls  for  our
consideration is (1.) “Whether the High Court  is  justified  in  convicting
the accused (A1) and (2.) Whether the prosecution could prove the  guilt  of
the accused beyond reasonable doubt”?

Looking at the evidence on record we find that  there  are  certain  pivotal
issues  where  the  prosecution  has  failed  to  provide   a   satisfactory
explanation. The facts on hand reveal that the incident took place at  2  AM
on the night of 5th and 6th March 2000. The place of occurrence  is  in  the
compound of the temple. On that day an ox procession  was  going  on,  there
was a huge gathering of  people  and  also  several  police  personnel  were
present to maintain  law  and  order.  Moreover  PW2-the  eye  witness,  who
happens to be the cousin of the deceased, basing on  whose  information  the
criminal law was set into  motion.  According  to  his  statement  a  police
constable was present when the incident was taking  place.  Further  he  had
tried to stop the accused and was injured in the  process.  He  carried  the
injured to the hospital at Pallakkad in his  own  jeep.  Later  he  did  not
accompany the deceased to the Medical College Hospital  Thrissur,  where  on
the way deceased succumbed to the injuries. He came to know about the  death
at 7:30 AM, he neither chose to go to the  police  nor  to  the  doctor  for
treatment and kept quiet till the police  came  to  him.  According  to  PW2
there are several houses and shops in the vicinity of the  place  where  the
incident took place, PW3  who  is  cited  as  eye  witness  turned  hostile.

The prosecution then relied upon the evidences of PW4 and PW5; both of  them
have stated to have witnessed the incident and are cited as the  independent
witnesses. It is to be noted that the witness statements of PW 4  and  PW  5
were recorded five days after the incident. PW4 deposed that he is a  friend
of deceased and got acquainted with PW2  after  the  incident.  He  did  not
mention about the presence of PW5 at the time  of  incident.  Admittedly  no
test identification parade was conducted and he did not know  the  names  of
accused persons as on the date of occurrence.  PW11,  the  panchwitness  for
recovery of the weapon, has turned hostile. He deposed that  he  signed  the
document without even knowing the contents of it.

As per PW21 the Sub Inspector of Police, several policemen were on  duty  at
temple premises. As per PW22 the C.I of police PW4 told him that there  were
3 constables present at the scene of crime. Neither PW4  nor  PW5  disclosed
to him that they knew the accused before the incident.  They  also  did  not
mention the names of any of the accused. In clear terms,  he  admitted  that
though he had interrogated the people near the place of occurrence,  he  did
not include them as witness. PW6 is the doctor who conducted post mortem  on
the deceased. PW18 is the doctor who examined  the  dead  body  of  deceased
Ayyappan Kutty (A2). According  to  him  the  cause  of  death  was  due  to
hanging. In the report he mentioned that in the stomach portion  there  were
few unidentified food particles in  a  brownish  fluid  medium  emitting  an
insecticide smell. He also expressed the view that there  can  be  death  of
the person or unconsciousness after consuming insecticide.  Evidently  there
were 16 ante mortem injuries on his body and was found hanging from  a  tree
with his feet touching the ground. There is no investigation or  explanation
put forth by the prosecution for these injuries.

The crucial evidence of DW1 is that on  the  evening  of  5.3.2000,  he  saw
Rajesh (deceased) scuffling with an Auto Rickshaw driver when A2  interfered
and separated them taking the side of Auto Rickshaw  driver.  Later  in  the
midnight, Rajesh (deceased) holding a liquor bottle in one  hand  and  knife
in the other hand, attacked A2. At that point of time, when  people  started
gathering, 2-3 people had taken away Ayyappan Kutty  (A2)  from  there.  The
next day at 9.30 am the body of A2 was found hanging from a  tree  with  his
legs touching the ground.

In the backdrop of these  facts  and  circumstance  a  closer  look  at  the
evidence of prosecution witnesses, in particular PW2, PW4 PW5,  PW11,  PW12,
PW21 and PW22,  would  reveal  that  these  witnesses  are  not  cogent  and
trustworthy to form basis to convict the appellant. Admittedly the  incident
had taken place in the midst of several hundred people and  the  prosecution
witnesses in equivocal terms stated that the police personnel were  present.
There is nothing on record to show that the police constables  available  at
the scene of offence were examined or that they  have  played  any  role  in
preventing the accused. The conduct of PW2 in not accompanying  the  accused
to the second hospital, not giving the  complaint  to  the  police  and  not
getting his injuries treated raises serious doubts and supports the case  of
the defense that PW2 is the king pin who has  implicated  the  accused  with
the help of his brother-in-law who is in the police  department.  Above  all
when the High Court disbelieves  the  presence  of  PW2,  at  the  scene  of
offence, it ought not to have  taken  into  consideration  his  evidence  to
convict the appellant.  The  prosecution  has  not  taken  minimum  care  to
examine the independent witnesses in support of their case and  particularly
when it is nobody’s case that independent witnesses were not available.

We feel that non examination of credible independent witnesses in this  case
is very much fatal to the prosecution’s case. Particularly when it is  their
own case that there were several  shops  and  houses  in  the  vicinity  and
several people were present. It is not necessary  that  in  each  and  every
case on the ground of non examination of independent witnesses the  case  of
the prosecution has to be brushed aside,  if  the  evidence  of  prosecution
witnesses is consistent, cogent and corroborated by other  evidence  it  can
be safely relied upon, but it is not so in the case at hand. The High  Court
disbelieved the presence of PW2, PW3 turned hostile, statements of PW4,  PW5
and PW 22 do  not  inspire  confidence.  No  other  independent  witness  is
examined. PW11 the panchwitness for  recovery  of  weapon  has  also  turned
hostile and deposed that he signed without reading the same. Moreover  there
is no evidence to show any results of forensic examination of the weapon  so
recovered. In our considered opinion the High Court,  while  convicting  the
appellant, should have been more cautious while  weighing  the  evidence  of
these prosecution witnesses.

It is  to  be  noted  that  the  High  Court  has  undertaken  a  scientific
hypothesis to conclude that the difference of time  of  death,  between  the
deceased A2 and  Rajesh,  were  not  connected.  High  Court’s  reliance  on
conjectural premise  built  upon  the  timing  of  rigor  mortis,  when  the
surrounding  circumstances  were  suspicious,  would  not  be  safe  to   be
followed. The next important aspect which requires our consideration is non-
explanation of the injuries on  the  body  of  deceased  A2.  The  death  of
deceased A2  as  per  ocular  and  medical  evidence  appears  to  be  under
suspicious circumstances. It is a clear case  of  latches  on  the  part  of
prosecuting agency in conducting investigation  goes  to  the  root  of  the
matter. Non-explanation of the serious injuries on the body of  the  accused
A2 by the prosecution is fatal in this case.

In this case the High Court while  convicting  the  accused  has  overlooked
settled principles of criminal  law  and  in  a  mechanical  way  based  its
conclusion on the premise that  the  injuries  were  not  sustained  in  the
process of  the  same  incident.  In  a  case  of  this  nature,  where  the
investigating agency utterly failed in its duty  to  thoroughly  investigate
and find out the reasons for the death of A2 who is alleged to be the  prime
accused in causing the death of the deceased, convicting  an  accused  would
not be safe.

The other ground put forth by the learned senior counsel is  in  respect  of
motive. According to him the motive attributed to the  accused  is  that  he
had cut the rubber trees belonging to the brother of the  accused  four  (4)
years prior to the incident and it is not  a  sufficient  motive  to  commit
such a heinous crime. Needless to say that in this  case  the  motive  is  a
double edged sword, as it can be a reason for crime and at the same  time  a
reason for false prosecution specially when the motive alleged  is  of  ill-
will and bad blood. In the present case evidence on record does not  inspire
confidence. Therefore, reliance on the motive would not be safe and as  such
serves no purpose.

The other glaring  aspect  is  non-conduction  of  the  test  identification
parade. This aspect gains relevance as PW4 and PW5, who  are  cited  as  eye
witnesses to the incident, deposed that they have not  mentioned  the  names
of the accused and that they did not know the accused.

Therefore we find that the prosecution case is filled with  infirmities  and
lacunas, therefore the only possible and probable course  left  open  is  to
grant benefit of reasonable doubt to the appellant herein. Resultantly,  the
impugned judgment is set aside and the appeal is allowed. The bail bonds  of
the appellant stands discharged.

                                                              (N. V. Ramana)

                                                          (Prafulla C. Pant)

New Delhi
Dated:  April 21, 2017

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