HC Condemns Serial Political Killings in Kerala, Says Parties Forgetting Basics of Democracy [READ JUDGMENT]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                 PRESENT:

                   THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRAMENON
                                                       &
                            THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                  MONDAY, THE 6TH DAY OF FEBRUARY2017/17TH MAGHA, 1938

                                         CRL.A.No. 825 of 2012 (C)
                                            -------------------------

     AGAINST THE JUDGMENT DATED 29.03.2012 IN SC NO. 151/2003 of ADDL.SESSIONS
                                      COURT (ADHOC-II), THALASSERY

APPELLANTS/ACCUSED 1 TO 4:
--------------------------------------

       1.            MOTTAMMAL SHAJI @ KAKKASHAJI
                     S/O.KUNHIKANNAN, PANOOR AMSOM, KOOTTERI.

       2.            KARYULLATHIL SAJITH @ AASHA SAJITH
                     S/O.GOVINDAN, PUTHOOR AMSOM, KOOTTERI.

       3.            MULLAN KUNNUMMAL UTHAMAN
                     S/O.KUMARAN, MALANTAVIDAHOUSE, PANOOR AMSOM,
                     CHIRAYINBHAGAM.

       4.            MOODENTAVIDA RIJESH
                     S/O.GOVINDAN, MOODENTAVIDA HOUSE,
                     PUTHOOR AMSOM, KOOTTERI.

                     A1, A2 & A4 BYADVS.SRI.P.S.SREEDHARAN PILLAI
                                              SRI.T.K.SANDEEP
                                              SRI.ARJUN SREEDHAR
                                              SRI.ARUN KRISHNA DHAN
                      A3 -BYADVS.SRI.S.RAJEEV
                                      SRI.K.K.DHEERENDRAKRISHNAN


RESPONDENT/STATE:
--------------------

                STATE OF KERALA
                REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
                ERNAKULAM (CRIME NO.234/2000 OF PANOOR POLICE STATION,
                KANNUR DISTRICT)


                      BY PUBLIC PROSECUTOR SHRI S.U.NAZAR

            THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON 05-01-2017, THE
COURT ON 06-02-2017 DELIVERED THE FOLLOWING:



                                                               "C.R."


          P.R.RAMACHANDRA MENON & A.HARIPRASAD, JJ.
                        --------------------------------------
                        Crl.Appeal No.825 of 2012
                        --------------------------------------
                Dated this the 6th day of February, 2017

                                  JUDGMENT


A.Hariprasad, J.


      Recurring overt acts by members of certain political parties at some

parts of the State, especially in some northern districts, eloquently

disseminate a message that human lives are less worthier than a political

ideology. Annihilation of political opponents has become an order of the

day, ignoring the fact that divergent political ideologies are natural in a

democratic polity with a multiparty system. Besides, the proponents of the

philosophy forget the reality that an ideology, worth its name, should exist

for the upliftment, welfare and wellbeing of mankind. Political killings by

using arms and explosives are acts of barbarity. This case unfolds yet

another doleful story of a political savagery. In this brutal incident, the

victim happened to be a worker of Communist Party of India (Marxit),

commonly known as CPM and the alleged assailants are workers of

Bharathiya Janatha Party (BJP) and Rashtriya Swayamsevak Sangh

Crl.Appeal No.825 of 2012              2

(RSS). Feud between these two sets of political outfits over a long period

of time in Kannur district is a notorious reality.

        2.     27 accused persons were charged in this case with offences

punishable under Sections 143, 147, 449 and 302 read with Section 149 of

the Indian Penal Code, 1860 (in short, "IPC"). The 5th accused was found

to be a juvenile at the time of incident and therefore his name was deleted

from the array of accused as the court rightly found that he could not be

tried along with other accused because of the embargo in the Juvenile

Justice (Care and Protection of Children) Act, 2000. After an elaborate

trial, the accused 1 to 4 were sentenced to undergo imprisonment for life

for murder and appropriate punishments for other offences. They are in

appeal before this Court.

        3.     Heard Sri P.S.Sreedharan Pillai, learned counsel appearing for

the accused 1, 2 and 4 and Sri K.K.Dheerendra Krishnan, learned counsel

appearing for the 3rd accused. Sri. S.U.Nazar, learned Senior Public

Prosecutor is also heard on behalf of the prosecution.

        4.     Brief facts necessary for appreciating the contentions are as

follows: Appellants are RSS/BJP workers. They nurtured political hostility

towards Areekkal Ashokan as he was an ardent supporter of CPM. With

the common object of committing Ashokan's murder, appellants 1 to 4,

along with other accused persons, formed themselves into an unlawful

Crl.Appeal No.825 of 2012             3

assembly on 05.12.2000, armed with deadly weapons like hatchet (wrongly

shown as axe by the trial court), sword and chopper. At about 8.30 a.m.

on that day, they criminally trespassed into the house of PW5 Andy (brother

of deceased Ashokan) and brutally assaulted Ashokan with lethal weapons,

who had taken shelter in the house of PW5 along with his four year old

son, PW4 Akshay. The assailants hacked Ashokan with hatchet, chopper

and sword right in front of the small child (PW4). The occurrence was in a

room on the upstairs of PW5's house. Thereafter the assailants fled. It is

also the prosecution case that a couple of hours before the incident, the

same assailants had attacked Ambuvintavida Babu at his house, which is

adjacent to the houses of PW5 and deceased Ashokan.             Prosecution

strongly contended that the political ill-will and hatred are motives for the

killing.

       5.      The defence case is total denial of any complicity of the

appellants in the crime.      According to them, deceased Ashokan had

enemies in his private life. He had an affair with Kallamparambath Sathi,

who resides in the neighbourhood. In that relationship, a child by name

Midhunlal was born. Sathi's brother Vinodan is a CPM worker. Sathi's

family members pressurised Ashokan to marry her for which he was not

amenable. Thereafter Sathi claimed maintenance under Section 125 of the

Code of Criminal Procedure, 1973 (in short, "Cr.P.C.") before the

Crl.Appeal No.825 of 2012                 4

Magistrate having jurisdiction. Despite passing orders thereon, Ashokan

failed to provide maintenance and on account of that, there were serious

issues between the families. In connection with Ashokan's murder, Panoor

Police initially arrested said Vinodan.       Thereafter, he was released on

account of political pressure exerted by the ruling Left Democratic Front

(LDF) in which CPM is a major constituent. Innocent accused persons are

falsely implicated due to political rivalry.

       6.      Trial court heavily relied on the testimony of PWs 1 to 3 to find

that the appellants on the alleged day entered PW5 Andy's house with

deadly weapons and after some time a loud cry emanated from upstair of

the house. Thereafter the accused went out with bloodstained weapons in

their possession. PW4 is cited as an eye witness to prove the incident.

Prosecution greatly banked on the natural character of the testimony of

these witnesses. Per contra, learned counsel for the appellants strongly

contended that the trial court seriously erred in placing reliance on the

undependable and untrustworthy evidence of the said witnesses to enter

the convictions. Apart from the factual issues, legal questions are also

raised regarding the legality and sustainability of the conviction pronounced

on the appellants. We shall deal with the factual aspects initially.

       7.      PW1 Leela is wife of deceased Ashokan. She deposed that

the incident was at about 8.45 a.m. on 05.12.2000. It is her insinuation that

Crl.Appeal No.825 of 2012              5

the appellants in this case, who are workers of RSS/BJP, committed the

gruesome murder. It has come out in evidence that during the period there

were lot of law and order issues in the area on account of political clashes.

PWs 1 to 3 deposed that they were residing together in the house of

deceased Ashokan. PW2 is the mother of PW3. PW2 is the sister-in-law of

deceased Ashokan. PW2's husband and their son Areekkal Rajesh (CW9)

were running a canteen at Bangalore during that time. All the material

witnesses deposed that the incident happened on a harthal day and there

was no vehicular movement through the road. It has come out in the

testimony of PW1 that CW9 Areekkal Rajesh came two days before the

incident and he was present in and around the scene of occurrence at the

material time. At about 7 o' clock in the morning, PW1 heard a hue and cry

from western side of her house. As such incidents were usual occurrences

in that area, she thought it might have been a political clash. Deposition of

PWs 1 to 3 coupled with Ext.P2, additional scene mahazar and Ext.P7 site

plan would show that deceased Ashokan's house was in a higher level than

that of PW5 Andy. Both houses are situated adjacent to one another. On

hearing the commotion, deceased Ashokan and children went to the house

of PW5. PWs 1 to 3 and other children followed them shortly thereafter.

PW5 and his wife were present in their house. Thereafter PW5 and wife

went to the place from where the loud cry was heard. After sometime, it

Crl.Appeal No.825 of 2012             6

was informed that on account of a political issue Ambuvintavida Babu was

attacked by the 1st appellant and inflicted injury on his leg. It was further

informed that the assailants went away. PWs 1 to 3 and other children

returned home. Deceased Ashokan and PW4 remained in the house of

PW5. Ashokan asked PW1 to find out if any vehicle was available on the

road so that he could move out of that area. PW1 went in search of a

vehicle. At that time, PW5's son Baburaj and CW18 Nanu's son Babu were

present in the house. PW1 went to the house of CW18 Nanu and enquired

about availability of a vehicle. She could not find any vehicle plying on the

road. While she was returning home and reached near Valiyaparambathu

Velayudhan's house, she saw a group of persons armed with deadly

weapons rushing through an alley on the southern side. 1st appellant was

holding a hatchet and others were also wielding weapons. They proceeded

towards Ashokan's house. She was perturbed on seeing them with lethal

weapons. She followed them at a distance. She heard noises, apparently

of breaking doors and furniture. The assailants drove PWs 2 and 3 and

others away. She deposed that the appellants went to the house of PW5.

As stated earlier, the 1st accused was holding a hatchet, 2nd accused was

holding a chopper and accused 3 and 4 were holding swords. Persons

who accompanied them surrounded PW5 Andy's house.                 When she

reached near Andy's house, the persons standing as watch out, threatened

Crl.Appeal No.825 of 2012             7

her with dire consequences. PWs 2 and 3 and others were driven towards

the side of Nani's house. PW1 stated that anybody approaching PW5's

house could be seen by the persons standing by the side of Nani's house.

Accused persons entered the house. Huge sound of breaking door could

be heard from the first floor followed by a distress cry of PW4. PW1 was

sure that they had harmed deceased Ashokan. She fainted and fell down.

This witness identified the appellants in the dock. She handed over

bloodstained clothes worn by PW4, which are marked as MOs 1 and 2.

Those articles were recovered through Ext.P1 mahazar.             She also

identified MO3 hatchet said to have been held by the 1st appellant.

       8.      In cross examination, it is brought out that Nani's house,

shown in Ext.P7 site plan, situated on the eastern side of Ashokan's house

and PW5 Andy's house, is the closest one. Defence alleged that non-

examination of Nani is a serious flaw.      It has come out through the

evidence of PWs 1 to 3 that they and their family members are staunch

supporters of CPM.        Ambuvintavida Babu, who sustained injury at the

hands of the same assailants, is also an ardent worker of CPM. PW1

admitted that towards west of her house, Velayudhan Master's house is

situated. In between her house and Velayudhan Master's house, there is

an alley. Slightly on a lower level of Velayudhan Master's house, Nanu's

(CW18) house is situated. It is her deposition that if someone makes a

Crl.Appeal No.825 of 2012           8

shriek from her house, it could be heard both in Nani's and Velayudhan

Master's houses. In this context, the learned defence counsel strongly

contended that non-examination of these two persons is fatal to credibility

of the prosecution case.

       9.      PW1 denied the suggestion that she and others had gone to

Ambuvintavida Babu's house on hearing his cry and at that time the

incident had happened in PW5's house. The vital point brought out in the

cross examination of PW1 is that when she saw the assailants entering

PW5's house with deadly weapons, she was in front of Velayudhan

Master's house. It is important to note that Velayudhan Master's house is

not shown in Ext.P7 site plan. PW16, the investigation officer, candidly

admitted in cross examination that Velayudhan Master's house was on

western side of PW5 Andy's house and that house could not be seen from

the place of occurrence. Learned defence counsel contended that the

entire case of PW1 proceeded on the footing that she saw the assailants,

armed with weapons, entering PW5's house and at that time she was

standing in front of Velayudhan Master's house. It is important to note that

Velayudhan Master was not even cited as a witness. However, the candid

admission by the investigation officer (PW16) that a person standing in

front of Velayudhan Master's house could not see anyone entering PW5's

house is a very material fact, casting doubt on the credibility of PW1's

Crl.Appeal No.825 of 2012           9

testimony. Therefore, we are of the view that identity of the accused

cannot be fixed solely depending on the testimony of PW1, especially when

she herself has a case that the assailants were members of a large group.

Notwithstanding the fact that PW1 and others knew the appellants long

before the incident, they named them only after 5 days is an established

fact. That aspect also prompts us to search for corroboration of PW1's

testimony.

       10.     Testimony of PW2 Santha and PW3 Rejina could be

considered together because of the commonalities. PW3 Rejina is the

daughter of PW2 Santha. As mentioned above, PW2 is the sister-in-law of

slain Ashokan. Both these witnesses testified that identifiable assailants

belonging to BJP/RSS outfits killed Ashokan on 05.12.2000 at about 8.30

a.m. These witnesses deposed that they were then residing in the house

of deceased Ashokan. During that time, PW2's husband with their son

Rajesh (CW9) were running a canteen at Bangalore. It has also come out

in evidence through these witnesses that Rajesh (CW9) came home two

days prior to the incident. CW9 Rajesh was present in Ashokan's house

shortly before the incident. The appellants after trespassing into the house

threatened him and twisted his arm demanding disclosure of Ashokan's

hide out. As stated by PW1, these witnesses also deposed that initially

there was a hullabaloo from the western side of their house. Later they

Crl.Appeal No.825 of 2012               10

realised that the 1st appellant and others hacked Ambuvintavida Babu

causing injury to his leg. They also knew that Babu was taken to hospital.

It is their definite case that after the incident, 1st appellant and others had

left the place.        PWs 2 and 3 specifically stated that on hearing the

commotion, they initially went to PW5 Andy's house and when matters

settled down, they returned to Ashokan's house. Both these witnesses

stated that deceased Ashokan asked PW1 to find out whether any vehicle

was available so that he could escape from the place. At that time,

Ashokan and PW4 were in the house of PW5. After PWs 2 and 3 returned

to Ashokan's house and engaged themselves in cooking, a group of

persons broke open the front door of Ashokan's house and the appellants

entered the house. 1st appellant was wielding a hatchet. 2nd appellant

possessed a chopper and appellants 3 and 4 were wielding swords.            2nd

appellant broke a mirror hanged on the wall. 1st appellant caught hold of

CW9 Rajesh's hand and questioned where Ashokan was. Rajesh told that

Ashokan had gone to Parat. Thereafter, they went upstairs in search of

Ashokan and ransacked the furniture, suitcase, etc. They threw out dough

prepared for making chappathies. They threatened PWs 2 and 3 and

drove them away. Thereafter, the appellants entered the house of PW5

Andy with weapons. Both PWs 2 and 3 were driven through an alley

leading to Nani's house. After some time, they heard noises of breaking

Crl.Appeal No.825 of 2012           11

doors in the upstairs of PW5's house where Ashokan and his son PW4

were hiding. They realized that the appellants had injured Ashokan. Later,

they came out and went away with bloodstained weapons. PW2 went to

the house of PW5. She saw Ashokan with multiple bleeding wounds lying

face down. By that time, he was dead. PW4, four year old child of

deceased Ashokan, was petrified and he was crying in extreme fear. They

took him from that place and went to Velayudhan Master's house. They

saw PW1 lying in a state of utmost despair. These witnesses identified the

appellants.

       11.     These witnesses were subjected to lengthy and searching

cross examination. PW2 admitted in cross examination that at the time

when the incident took place, PW5's son Babu Raj and CW18's son Babu

were present in the house. Appellants raised a strong point that non-

examination of Babu Raj and Babu amounted to withholding the best

evidence and that was done with an oblique motive to falsely implicate

them in the case and also to shield the real assailants. Although we have

scanned the evidence of PW16, the investigation officer, we do not find any

satisfactory explanation for non-examination of these two persons, who

were admittedly present at the place of occurrence. It is also clear that

they could have identified the assailants better as they were persons

permanently residing there itself.

Crl.Appeal No.825 of 2012               12

       12.     That apart, on going through Ext.P11 FIS, it can be seen that

Valiyaparambathu Govindan, who was the informant, had not seen the

incident. It has come out in evidence that Valiyaparambathu Govindan

died before the trial. What is stated in Ext.P11 is that the informant while

sitting home, heard a loud cry originating from the side of Ashokan's house

and he saw women and children running helter-skelter in panic. On going

there, he met CW9 Rajesh and he in turn informed the first informant that

RSS/BJP workers had gone upstairs of PW5's house and attacked the

deceased. Both of them decided to get a vehicle urgently. Thereafter he

along with CW18 Nanu went to the place of occurrence and found Ashokan

lying in a pool of blood. It is the definite version in Ext.P11 that by then, two

policemen had come.           Learned counsel for the appellants strongly

contended that presence of police at the scene, even before registration of

Ext.P11, is also a matter of concern while appreciating truthfulness of the

prosecution case. We shall deal with that aspect in the succeeding

paragraphs. It is clear from Ext.P11 that Rajesh was present near the

house where the occurrence took place. Considering these aspects, we

are of the view that non-examination of CW9 Rajesh, CW18 Nanu and

PW5's son Babu Raj is material factor affecting the credibility of the

prosecution case, especially regarding the identity of the assailants.

        13. PW2          also   admitted     in    cross    examination      that

Crl.Appeal No.825 of 2012             13

Valiyaparambathu Govindan, who lodged Ext.P11 FIS, came to know about

the incident through CW9 Rajesh. Testimony of PW2 regarding the place

where PWs 2 and 3 positioned at the time of occurrence and also the

location of PW1 are not in harmony with the testimony of the latter. The

defence contention that going by the evidence adduced by PWs 2 and 3,

and also the details shown in the site plan, it would be difficult to hold that

they had seen the assailants entering PW5's house is a probable version.

PW2 testified that at the time of incident, she and her daughter PW3 were

standing by the side of a well near PW5's house. Such a statement was

not recorded by the investigation officer earlier. Testimony of PW2 is full of

omissions and contradictions.

       14.     PW3 deposed that the appellants are persons residing in the

neighbourhood.          They were known to each other for more than two

decades. PW3 gave evidence to the effect that when they were driven out

of Ashokan's house, about 20 persons assembled in and around the place

of occurrence. Her version is that she knew only the appellants and the 5th

accused. In cross examination, PW3 admitted that she had not given any

details regarding identity of the accused when she was questioned as part

of investigation. Both PWs 2 and 3 testified that they were standing by the

side of a well near PW5's house. As mentioned above, it is not made clear

whether a person standing there could see the entry of anyone to PW5's

Crl.Appeal No.825 of 2012              14

house. Location of the well is not revealed in the evidence. PW16, the

investigation officer, also has not given any proper explanation for the

material incongruities in the evidence of PWs 1 to 3. It has come out in

cross examination of PW3 that PW5's house was facing towards east and

the kitchen, where the well is situated, is on the rear side (western side).

On a careful reading of the testimony of PWs 1 to 3, it is not convincingly

clear as to whether they could have seen the assailants entering PW5's

house with deadly weapons from their respective positions. Even though

all these witnesses testified that the appellants were residing in the same

locality, it is relevant to note that their names were not revealed at the

earliest opportunity. CW9 Rajesh also did not inform Valiyaparambathu

Govindan that the appellants were responsible for the murder and that is

why their names were not mentioned in Ext.P11 FIS.               This assumes

importance for the reason that PWs 1 to 3 specifically deposed that shortly

before the incident, the assailants intimidated CW9 Rajesh and twisted his

arm questioning whereabouts of the deceased. If we accept the version of

prosecution witnesses that they knew the assailants much before the

incident, non-disclosure of their identity at the earliest point of time evokes

doubt regarding veracity of the prosecution case.

       15.     PW4 Akshay Ashok, the unfortunate and hapless son of the

victim, had the misfortune to witness the brutal murder. He was about four

Crl.Appeal No.825 of 2012              15

years at the time of incident. When examined, he was 14 years of age.

Learned Sessions Judge put questions to understand his mental ability and

satisfied himself that he was a competent witness going by the standards

prescribed under Section 118 of the Indian Evidence Act, 1872 ("the Act",

for short). In the chief examination, he deposed that his father was hacked

to death from PW5's house about ten years before.               He was not

remembering the exact date. PW4 along with his father was sitting on a

cot in an upstair room. Five persons armed with weapons hacked PW4's

father and he fell down. He was drenched in blood. He identified the

appellants. PW16, the investigation officer, when cross examined admitted

that no previous statement of the child was recorded earlier as he was of

tender age at the time of occurrence.          Testimony of PW4 that the

appellants were known to him because he had seen them on the way to

Anganwady and that he had informed their names to Police after the

incident cannot be fully believed for the reason that these versions spring

up for the first time in court. This witness admitted that police used to visit

his house every day. It is true that PW4 is an unlucky child destined to

witness a brutal attack on his father, but his testimony before the court

cannot be relied on for fixing the criminal liability for the reasons that he

was only four years old at the time of incident and he testified after ten

years of the incident. He is the only person present at the actual crime

Crl.Appeal No.825 of 2012             16

scene. But his testimony requires corroboration for the aforesaid reasons.

       16.     Oral evidence adduced by PWs 1 to 3 are insufficient to satisfy

the conscience of the court that they identified the appellants from a group

of assailants more than 30 in number. Testimony of the investigation officer

(PW16) and the site plan do not support the evidence of these witnesses

that they located themselves at places from where the assailants entering

PW5's house could be clearly seen. Another important contention raised

by the defence is that there is inordinate delay in naming the appellants,

though these witnesses testified that the appellants were residing in the

neighbourhood and they knew them long time before the incident.

       17.     Remaining witnesses did not speak about the incident. They

came to the place shortly after the incident so that they had no opportunity

of seeing any of the assailants. Those who had occasion to see the

perpetrators of the crime, viz., CW9 Rajesh, CW2 Babu, CW4 Babu Raj

and other probable witnesses were not examined.

       18.     PW5 Andy is the elder brother of Ashokan. He deposed that

his wife and son Babu Raj were residing in the house at the material time.

He also testified in terms with the evidence adduced by PWs 1 to 3

regarding the first incident in the house of Ambuvintavida Babu. After the

incident, he along with a neighbour by name Balan took Babu on a bicycle

to a nearby public road. As mentioned above, there was no vehicle on the

Crl.Appeal No.825 of 2012              17

road because of harthal. At that time, a police vehicle came and Babu was

taken to the Primary Health Centre, Panoor. From there, he was taken to

the Co-operative Hospital, Tellicherry for better treatment. Since there was

no vehicle PW5 could not return till 5.30 hours in the evening. He sadly

deposed that his brother was murdered from his house. He is a witness to

Ext.P2 mahazar.          Along with PW5, his wife, son Babu Raj and other

children Sanalkumar and Anisha were residing in the house. This fact was

brought out in cross examination. But this was not revealed to police at

the time of questioning. Fact that they were present at the time of incident

is clear from PW5's testimony. It has also come out while cross examining

PW5 that CW2 Babu was also staying in his house on the date of incident.

None of these witnesses were examined and no explanation was offered

by the prosecution for not examining them. Testimony of PW5 also reveals

the infirmity in the investigation as well as in the prosecution.

       19.     PW7 Sreedharan is another sibling of deceased Ashokan. He

witnessed the recovery of blood stained dress worn by PW4 at the time of

incident. He is a witness to Ext.P1 mahazar. He identified MOs 1 and 2.

       20.     PW8 Anandan is a witness to the inquest report, Ext.P4. In

cross examination, this witness completely deviated from the prosecution

case that due to political hostility, RSS/BJP workers under the leadership of

the 1st appellant, armed with weapons, trespassed into PW5's house and

Crl.Appeal No.825 of 2012           18

committed the cold blooded murder. He refused to support this case.

According to him, he did not say so and he did not hear anyone saying so.

Even though he was residing in the neighbourhood, he did not go to

Ashokan's house on hearing the distress call.

       21.     PW9 Balan was the Secretary, Kunnoth Grama Panchayat.

He issued Ext.P5 ownership certificate in respect of PW5's house. PW10

Raveendran worked as the Village Officer. He prepared Ext.P7 site plan.

According to him, the plan was prepared with reference to the relevant

mahazar. In cross examination, he admitted that many houses adjacently

situated were not noted in the plan. Importantly, Velayudhan Master's

house was omitted to be shown in Ext.P7 site plan.

       22.     PW11 is the photographer attached to the Finger Print Bureau.

He took photographs of the crime scene. Fact that Ashokan met with an

unnatural death is unchallengeable. PW12 is the photographer, who took

the photographs of Ashokan's dead body. It was taken from mortuary.

Ext.P9 series are the photographs.

       23.     PW14 is the Scientific Assistant attached to the Forensic

Science Laboratory, Kannur. He examined the scene of occurrence on

06.12.2000 at about 1 o' clock in the noon. He collected bloodstains from

the place of occurrence. He identified MOs 4 to 6.

       24.     PW14 Dr.K.M.Sukumaran conducted autopsy on the body of

Crl.Appeal No.825 of 2012            19

Ashokan on 05.12.2000. Ext.P10 is the postmortem certificate proved by

PW14. On the dead body, 16 antemortem injuries were noted. According

to the deposition of PW14, injuries 1 to 4 and 14 in Ext.P10 might have

caused the death. It is also stated by this witness that such injuries could

be inflicted by a hatchet like MO3.      Possibility of causing injuries by

chopper, sword, etc. was also spoken to by this witness. Despite cross

examination of this witness, no answers could be elicited to challenge the

veracity of Ext.P10 or the testimony of PW14.

       25.     Now we shall consider testimony of the police officers

examined in this case. PW15 was the Additional Sub Inspector of Police,

Panoor Police Station.       It is his version that at about 9.40 a.m.

Valiyaparambathu Govindan (the informant) presented himself before him

and gave Ext.P11, FIS. Ext.P11(a) is the first information report (FIR). He

deposed that Ext.P11(a) had been sent to the Magistrate having jurisdiction

and also to his superiors. At about 10.30 a.m., he reached the place of

occurrence and conducted the inquest. He prepared Ext.P4 inquest report.

Body was sent for postmortem examination to the Government Hospital,

Koothuparamba. In cross examination, it was brought out from PW15 that

as mandated by law, General Diary (GD) was kept in the police station at

the material time. All events happening every day should be entered in the

GD. As came out from the recitals in Ext.P11, as well as the testimony of

Crl.Appeal No.825 of 2012              20

PW5 and other witnesses, even before registration of Ext.P11(a) FIR,

police had come to know of the incident. Presence of two policemen

immediately after the incident at the place of occurrence is a fact revealed

from the evidence. The defence counsel contended that Ext.P11 is not the

information received first in point of time in the police station. According to

the defence case, the real information had been suppressed and the

appellants are falsely implicated in this case due to political reasons.

PW15 deposed that deployment of police personnel for various duties

should be recorded in the GD. Details of any crime registered also should

be entered in the GD. All these answers were elicited from PW15 to

highlight the fact that despite the Court demanded cause production of GD,

it was not produced to establish the truthfulness of prosecution case.

PW15 admitted that information furnished by Valiyaparambathu Govindan

in Ext.P11 was actually received from CW9 Rajesh and the latter had been

questioned by PW15 for recording statement. Here also the importance of

non-examination of CW9 becomes a relevant factor.

       26.     PW15 was confronted with questions about delay in forwarding

Ext.P11(a) FIR to the Magistrate concerned. He was aware of the fact that

in a serious case of this nature, FIR should have been sent as "express

FIR" on the same day. According to PW15, he entrusted the matter to the

police station writer. A close scrutiny of Ext.P11 would show that FIR was

Crl.Appeal No.825 of 2012             21

produced before the Magistrate on 05.12.2000 at 5.15 p.m. only, although it

was recorded at 9.40 a.m. It does not bear a court seal, indicating the fact

that it must have been produced after the court hours, perhaps at the

residence of the Magistrate. PW15 deposed that he came to know about

identity of the 1st appellant when he questioned CW9 Rajesh. Pursuant to

that, he filed Ext.P12 report before the Additional Chief Judicial Magistrate,

Thalassery, implicating the 1st appellant in the case. Though the report is

seen dated 05.12.2000, it was received in the above court only on

12.12.2000. The delay in sending Ext.P12 report, coupled with the non-

examination of CW9 Rajesh, is certainly a material debility in the

prosecution case. PW15 in cross examination deposed that police officers

were doing overtime job at the material time due to rampant law and order

issues and that was the reason for delay. But, he has not produced either

the GD or the duty book to explain the delay. When cross examined,

PW15 deposed that he was aware of the fact that two policemen had

reached the place of occurrence even before registration of Ext.P11 (a).

But he could not identify who the police officers were. Appellants harped

on the fact that material witnesses were questioned about 5 days after the

incident. It is also contended that all these were done intentionally to

shape the case in order to implicate the appellants.

       27.     PW16 was the Deputy Superintendent of Police, Thaliparamba

Crl.Appeal No.825 of 2012              22

(Dy.S.P.). He conducted the investigation. He deposed that on 06.12.2000,

the Superintendent of Police, Kannur authorised him to conduct the

investigation.       At 11.00 a.m. on the said day, he visited the place of

occurrence. He prepared an additional scene mahazar (Ext.P2) from the

place of occurrence. Learned counsel for the appellants contended that as

there is no other scene mahazar in this case, the nomenclature itself shows

that the prosecution intentionally suppressed material documents and

distorted facts for benefiting a political party then in power. It is argued by

the learned counsel for the appellants how there could be an additional

scene mahazar in the absence of an original scene mahazar. To this,

PW16 answered that as the description of the scene had been mentioned

in Ext.P4 inquest report, he described Ext.P2 as additional scene mahazar.

We are not impressed with the contention of the learned counsel for

appellants that merely for that reason Ext.P2 additional scene mahazar,

should be thrown over board. It may be true that an officer in the rank of

PW16, who presumably must have gained experience, should have taken

more care when investigating a case of this importance.

       28.     PW16 deposed about the steps he had taken in the

investigation. He recovered the material objects. Records show that he

questioned the material witnesses only on 09.12.2000. He prepared

Ext.P14 search memo and Ext.P15 search list and thereafter, he conducted

Crl.Appeal No.825 of 2012             23

a search in the house of 1st appellant. Nothing noticeable could be found

out in the search. For the first time, PW1 was questioned on 09.12.2000.

Likewise, other witnesses were also questioned four days after the

incident. He prepared Ext.P17 report and forwarded the same to court.

Even though, it is seen prepared on 16.12.2000, it reached the court only

on 18.12.2000. By this report, the accused 2 to 27 were implicated in the

case. Appellants 1 and 2 along with another accused were arrested on

16.02.2001. 3rd appellant was arrested on 29.05.2001 and the 4th appellant

was arrested on 19.12.2000.        Other accused were also arrested on

different dates.        He produced and proved the arrest memos of the

appellants and other accused persons. After completing the investigation,

PW17 Baby Vinod, the then Circle Inspector, Panoor Police station laid the

charge.

       29.     PW16 was extensively cross examined by the defence

counsel. He deposed in cross examination that he did not remember

whether he had examined the GD and FIR book maintained in the police

station. It is also stated by him that the case diary on hand did not reveal

that fact. Another important statement made by PW16 in court is that he

was aware that two policemen had gone to the place of incident prior to

registration of Ext.P11(a) FIR. It is his version that he enquired about the

police personnel, but he could not identify them. It is the defence case that

Crl.Appeal No.825 of 2012              24

non-production of GD and other records to show deployment of police

personnel on duty is an intentional act done to suppress the real version of

the incident. It is also contended that the real version was changed to

appease the ruling front by falsely implicating their political opponents.

       30.     PW16 did not satisfactorily answer a volley of questions

relating to non-production of GD and non-identification of the police

personnel present at the crime scene before Ext.P11(a) was registered.

PW15 was the SHO in Panoor Police station at the material time. Even

though his statement was recorded by PW16, nothing was asked about the

entries in the GD on that particular day and also about identity of the police

officers, who had gone to the scene immediately after commission of the

crime. These aspects in the evidence of PW16 are causes for raising

reasonable doubt in the efficacy and regularity of investigation.

       31.     PW16 plainly admitted that CW2 Babu was cited as an

occurrence witness.       CW2 Babu had informed PW16 at the time of

questioning that he was present in the house where the incident took place.

       32.     Ext.P12 report is dated 05.12.2000. As per this report, the 1st

appellant was named for the first time. This report bears a court seal,

showing that it was received only on 12.12.2000. No explanation was

offered by PW16 for the inordinate delay in submitting the report implicating

the accused in a serious crime of this magnitude. This probabilise the

Crl.Appeal No.825 of 2012              25

defence case that there must have been confabulation in the matter of

arraigning accused persons. PW16 made a damaging admission that even

before 16.12.2000 he was aware of identity of all the accused. Still he

submitted Ext.P12 implicating the 1st appellant only, leaving out others.

PW16 failed to offer any explanation for this strange step taken by an

investigation officer of his seniority. Further, he was aware that the report

to implicate the accused should be submitted as and when their complicity

was revealed. This weakens the prosecution case very much as there

was absence of prompt action, expected from an investigation officer.

       33.     Ext.P14 search memo does not bear any date. It was seen

received in court on 20.12.2000. Ext.P15 search list was received in court

only on the said date. The delay in sending the said documents to court

has not been properly explained.

       34.     It came out in evidence that PW16 had questioned Nani on

06.12.2000, whose house is shown in Ext.P7 site plan. He did not mention

any reason for not citing Nani as a witness. As mentioned earlier, PW16

candidly admitted that Velayudhan Master's house was about 20 metres

west of Ashokan's house and the first mentioned house was not visible

from the place of incident. The suggestion by the defence that initially

another FIR and scene mahazar were prepared has been denied by

PW16.       He further deposed that PW1 has not stated anything about

Crl.Appeal No.825 of 2012            26

identity of the appellants 3 and 4 said to be found in the company of 1st

appellant. It is also stated by PW16 that PW1 when questioned did not

inform him that she saw the appellants entering PW5's house. It is also

stated by this witness that PW1 did not give any statement that she

identified the weapons held by the appellants when they passed through

the alley towards house of PW5 Andy. It is also stated by this witness that

PW1 had not mentioned that the assailants were known to her previously.

Further testimony of PW16 is that PW1 did not inform him that she saw the

incident while standing by the side of Velayudhan Master's house.

       35.     Regarding the testimony of PW2, it is brought out from PW16

in cross examination that she did not state that they were standing at that

time near the well in PW5's compound. Likewise, PW2 did not give a

statement that after the incident, the assailants returned with bloodstained

weapons. PW3 also did not give a statement that she saw bloodstained

weapons in the possession of the assailants after the incident. Further,

PW3 had given a statement that when they went upstairs after the incident,

CW4 Babu Raj and CW2 Babu were standing there with fear stricken

faces. It is also deposed by PW16 that when questioned, PW3 stated that

CW4 Babu Raj and CW2 Babu were present in the house at the time of

incident.

       36.     Touching upon the deposition of PW4 that he knew the

Crl.Appeal No.825 of 2012             27

appellants before the incident, PW16 was cross examined. It is his version

that PW4 had not informed him about any previous acquaintance with the

appellants.

       37.      PW16 answered to a query that he was not aware whether

LDF Government was ruling the State at the material time.             He also

deposed that he did not remember whether CPM was controlling the Home

Department.        PW16 conceded that CW9 Rajesh was cited as an eye

witness.      It is also stated by PW16 that a series of political murders had

taken place within a couple of days before and after the incident.

       38.      On going through the testimony of PW16, we are of the

opinion that it cannot be stated that the investigation was a flawless one.

There was unexplained and inordinate delay with respect to many steps

taken in the investigation. The material witnesses were questioned only

four days after the incident. Material documents were produced before the

court with much delay, that too with no satisfactory explanation.

Contradictory statements given by the material witnesses regarding the

vital aspects also very badly affect the credibility and acceptability of the

prosecution case. We are constrained to express opinion that a serious

crime of this nature and magnitude should not have been so callously

investigated. It may be true that there might have been law and order

issues on account of serial political murders. But, that is not an excuse for

Crl.Appeal No.825 of 2012            28

conducting a shoddy and haphazard investigation.               Such faulty

investigations may not only benefit the accused, but also result in

extrication of the real assailants.

       39.     We shall now consider the legal issues raised by both the

sides in support of their respective versions. Learned Prosecutor

contended that evidence adduced clearly established the recovery of MO3

hatchet at the instance of the 1st appellant. Prosecution relies on Ext.P3

seizure mahazar and also the testimony of PWs 6 and 16 to support this

contention. In Ext.P3, it is mentioned that the 1st appellant deposed, while

in custody, about concealment of MO3 at a place exclusively known to him

and consequent to the information received from him, PW16, in the

presence of the 1st appellant, recovered MO3 from a hole on an earthen

wall situated in the property of Elangattu Kunhimuhammed. Description in

Ext.P3 would show that it was an unfrequented place with full of wild

growth. PW6 is a witness to Ext.P3. He testified that on 19.02.2001 at

about 9.30 a.m., he found PW16 taking the 1st appellant in a police jeep

towards the side of Kunhimuhammed's property. PW6 also went to that

place. At that time, the 1st appellant took out a hatchet from the place of

concealment. PW16 thereafter prepared Ext.P3 and he signed from there

itself. He was subjected to strict cross examination. He is a coconut

climber. He came to that place (Kootteri) to pluck coconuts from one

Crl.Appeal No.825 of 2012           29

Karunan's compound. On that day, Karunan's neighbour Kunhiraman died

and therefore, he had to return without doing any work. On the way back

he saw the recovery of MO3. In cross examination, it is brought out that

PW6 was residing about 3 kms. south of the place wherefrom MO3 was

allegedly recovered. He was a staunch supporter of CPM. He conceded

that neither family name of Karunan nor name of the paramba where he

had gone for coconut plucking was known to him. Even though there was

a shop by the side of the place wherefrom recovery was effected, he was

unaware of its exact location. According to him, Karunan's paramba is

about four compounds away from deceased Kunhiraman's house. PW6

admitted that he had no acquaintance with deceased Kunhiraman.

Defence has a case that PW6 is a planted witness. Nobody by name

Kunhiraman died in that locality as stated by PW6.      It is the defence

version that Ext.P3 is not a genuine document and it has been fabricated

from police station to suit the prosecution case.      Even though PW6

deposed that he knew the 1st appellant before the incident, in cross

examination this version has been seriously affected. PW6 also stated that

he did not read and understand Ext.P3.

       40.     PW16 admitted during cross examination that the witnesses in

Ext.P3 are inhabitants of Panoor. The recovery was effected from a place

slightly away from Panoor. It is admitted by PW16 that there was only a

Crl.Appeal No.825 of 2012              30

closed shop near the place of recovery and there was no house in the

vicinity. Prosecution wanted this Court to believe that PW6 is a chance

witness at the place of alleged recovery of MO3. In order to attack this

case, DW2 was examined on the side of defence. This witness was the

Secretary, Kunnothparambu Grama Panchayat.             He produced Ext.D12

letter issued by Grama Panchayat under the Right to Information Act. As

he was holding the charge of Secretary, Panoor Grama Panchayat as well

at that time, he proved Ext.D13 also. Both these documents do not show

that on 19.02.2001 or a couple of days before or after the said day, there

was death of a person by name Kunhiraman in that area.                Learned

Prosecutor contended that testimony of DW2 and Exts.D12 and D13

cannot be relied on to hold that a person by name Kunhiraman did not die

as stated by PW6. It is the argument raised by the prosecutor that if a

person dies from a hospital outside the limits of a Grama Panchayat, the

death would be registered in the local authority where the hospital is

situated. True, such a possibility cannot be ruled out. Even if we accept

the case of prosecution regarding recovery of MO3, it may be insufficient to

enter a finding of guilt of the appellants solely based on that fact.

       41.     Section 25 of the Act creates an absolute prohibition of proving

any confession made to a police officer by a person accused of any

offence. Section 26 of the Act says that no confession made by any person

Crl.Appeal No.825 of 2012               31

in custody of a police officer shall be proved against him unless it be made

in the immediate presence of a Magistrate. Presence of a Magistrate is

regarded as equivalent to removal of influence by the police and so, though

in police custody, a confession to a third person in the presence of

Magistrate is made admissible.

       42.     Section 27 of the Act reads as follows:

                        "How much of information received from

               accused may be proved.- Provided that, when

               any fact is deposed to          as discovered in

               consequence of information received from a

               person accused of any offence, in the custody of a

               police officer, so much of such information,

               whether it amounts to a confession or not, as

               relates distinctly to the fact thereby discovered,

               may be proved."

       43.     We may quote a passage from a classical work "An

introduction to the Indian Evidence Act" by Sir James Fitzjames

Stephen, Q.C., who drafted the Indian Evidence Act. It reads as follows:

                      "Admissions in reference to crimes are

              usually called confessions. I may observe upon the

              provisions relating to them that sections 25, 26 and

              27 were transferred to the Evidence verbatim from

              the Code of Criminal Procedure, Act XXV of 1861.

              They differ widely from the law of England, and

              were inserted in the Act of 1861 in order to prevent

Crl.Appeal No.825 of 2012               32

              the practice of torture by the police for the purpose

              of extracting confessions from persons in their

              custody."

The purpose of incorporating Section 25 of the Evidence Act, creating an

embargo in proving a confession by an accused to a Police Officer and

providing an exception to that rule in Section 27 of the Evidence Act, can

be discerned from the above passage.

       44.     It is well settled that Section 27 of the Act is by way of a

proviso to Sections 25 and 26. The above principle and the proposition

that a statement, even by way of a confession made in police custody

which distinctly relates to a fact discovered, is admissible in evidence

against the accused are indisputable (see State of Karnataka v. David

Razaria - AIR 2002 SC 3272).

       45.      Section 27 of the Act appears to be based on the view that if a

fact is actually discovered in consequence of an information given by an

accused in custody, some guarantee is afforded thereby that the

information was true and accordingly it can be safely allowed to be given in

evidence (see Geejaganda Somaiah v. State of Karnataka - AIR 2007

SC 1355). It is stated in the above decision that the court has to be

cautious that no effort is made by the prosecution to make out a statement

of accused, with a simple case of recovery, a case of discovery of fact in

order to attract the provisions of Section 27 of the Act.

Crl.Appeal No.825 of 2012               33

       46.     Following are the essential requirements according to learned

author Sarkar on Law of Evidence (11th Edition) for the application of

Section 27 of the Act:

                        "(1) That consequent to the information

                given by the accused, it led to the discovery of

                some fact stated by him.

                        (2)  The fact discovered must be one

                which was not within the knowledge of the police

                and the knowledge of the fact was for the first time

                derived from the information given by the

                accused.

                        (3)  Information given by the accused

                must lead to the discovery of a fact which is the

                direct outcome of such information.

                        (4)  The discovery of the fact must be in

                relation to a material object and of course would

                then embrace within its fold the mental condition

                i.e., the knowledge of the accused of the place

                where     the  object  was   produced      and   the

                knowledge that it was there.

                        (5)  only such portion of the information as

                is distinctly connected with the said discovery is

                admissible.

                        (6)  The discovery of the fact must relate

                to the commission of some offences."

       47.     The proposition that merely on the basis of a fact discovered

on the confession of an accused, while in custody, the prosecution cannot

Crl.Appeal No.825 of 2012              34

seek his conviction without establishing other corroborating circumstances

is beyond any pale of dispute. In otherwords, it may be imprudent to

convict a person solely on the factum of recovery under Section 27 of the

Act.

       48.     Learned counsel appearing for the appellants strongly

contended that non-examination of material witnesses, that too without

offering any palatable explanation, is a serious infirmity in the prosecution

case. According to them, withholding CW2 Babu, CW4 Babu Raj and CW9

Rajesh from the witness box was intentional on the part of prosecution to

falsely implicate the appellants. As stated above, CWs 2 and 4 were

present in PW5's house where the incident had taken place. If we believe

the prosecution case, they must have had a reasonable chance of seeing

the assailants from a close proximity. Besides, CW9 Rajesh was the other

witness who was present in the house of deceased Ashokan as well as in

the house of PW5. Prosecution has a case that shortly before the incident,

the aggressors under the leadership of the 1st appellant questioned and

intimidated him and physical hurt was meted out by twisting his arm.

Therefore, CW9 certainly would have been a material witness to establish

identity of the assailants. The prosecution has not put forth any valid

reason for the non-examination of these witnesses.

       49.      We are not oblivious of the principle that the prosecutor in his

Crl.Appeal No.825 of 2012              35

wisdom is free to decide as to who should be examined to prove a

particular aspect in the prosecution case.       However, the prosecutor's

wisdom can be challenged by the accused by raising a complaint about

non-examination of a material witness. The complaint about non-

examination of a material witness becomes very relevant when the

testimony of witness/witnesses examined to prove that particular aspect of

the prosecution case was found to be uninspiring or not credible. Sublime

principle that the prosecution should place the entire facts before the Court

so as to enable it to take a fair decision is non-negotiable. Withholding a

material witness in a given case may amount to thwarting the concept of

fair trial. It depends on the facts and circumstances in each case.

        50.    Learned counsel for the appellants relied on the decisions in

Rang Bahadur Singh v. State of U.P. ((2000) 3 SCC 454) and Sohan v.

State of Haryana ((2001) 3 SCC 620) to advance their arguments. In

Rang Bahadur Singh's case, the apex Court, on the facts of the case,

held that when four witnesses were examined to speak about the

occurrence, normally non-examination of one more witness is not a serious

flaw. Non-examination of a witness was commended upon by the Supreme

Court finding that he was a material witness to speak about the incident.

Similarly, in Sohan's case, the Supreme Court, after analysing the facts,

held that non-examination of material witnesses, who are available to

Crl.Appeal No.825 of 2012             36

corroborate the testimony of other witnesses, was a serious lacuna in the

prosecution case.

       51.     In answer to this argument, learned Prosecutor contended that

all the natural and probable witnesses have been examined. In the facts

and circumstances of this case, relatives of the victim are the natural

witnesses. It is also contended that non-examination of the aforementioned

witnesses do not render the prosecution case weak. But we are unable to

accept this argument for the reasons pointed out above.

       52.     The expression "interested witness" should be understood as

a person who has a purpose of his own to serve. Merely because a witness

is a close relative of the deceased, he does not become an interested

witness. Normally, relatives of the deceased will be interested in seeing

that the real culprits are punished. Interested witness is one who is

interested in securing conviction of a person out of vengeance or enmity or

due to dispute relating to property (see Ram Bharosey v. State of U.P. -

AIR 2010 SC 917).

       53.     Evidence of a relative witness need not always be an

interested one (see Amzad Ali v. State of Assam - AIR 2003 SC 3587).

Supreme Court in D.V.Shanmugham v. State of A.P. ((1997) 5 SCC 349)

has held that when independent witnesses available were not examined

and only related witnesses alone were examined by the prosecution, then

Crl.Appeal No.825 of 2012              37

in such a situation the prosecution case has to be scrutinised with more

care and caution.

       54.     To sum up this point, we find that the testimonies of PWs 1 to 3

and that of PW4 are full of contradictions, embellishments and omissions

amounting to contradictions. In this context, non-examination of CWs 2, 4

and 9 assumes much relevance.           The plea advanced by the learned

counsel for the appellants that the best evidence was withheld from the

court's view is forceful and deserves to be approved. For the said reasons,

we hold that the prosecution failed to offer any plausible explanation for the

non-examination of the above mentioned material witnesses. Dereliction on

the part of the prosecution is a blot on the veracity of prosecution case.

       55.     Another point urged by the learned counsel for the appellants

is regarding the presence of police personnel at the crime scene before

registration of the crime. Section 154 Cr.P.C. mandates that an officer in

charge of a police station shall reduce to writing every information relating

to commission of a cognizable offence.         It further says that every such

information, whether given in writing or reduced to in writing, shall be

signed by the person giving it. The substance thereof shall be entered in a

book to be kept by such officer in the prescribed form. Furthermore, a copy

of the information recorded shall be given forthwith, free of cost, to the

informant. The Section speaks about the remedy of a person aggrieved by

Crl.Appeal No.825 of 2012                38

the refusal on the part of an officer in charge of a police station to record

the information. If that be so, the aggrieved person may approach the

Superintendent of Police.

       56.     The principal object of the first information report, from the

point of view of the informant, is to set the criminal law in motion and from

the point of view of the investigating authorities, to obtain information about

the alleged criminal activity, so as to enable them to take suitable steps to

trace and book the guilty person.

       57.     The object of insisting upon prompt lodging of the report to the

police in respect of commission of an offence is to obtain early information

regarding the circumstances in which the crime was committed, the names

of actual culprits and the part played by them as well as the names of eye

witnesses present at the scene of occurrence.              Delay in lodging first

information report quite often results in embellishment which is a creature

of afterthought (see Thulia Kali v. State of Tamil Nadu - AIR 1973 SC

501). However, the mere fact that the first information has been lodged

early does not rule out embellishment or falsehood in every case.

       58.     It is also settled law that delay in giving FIR by itself cannot be

a ground to doubt the prosecution case. Human nature is that kith and kin,

who have witnessed the occurrence, cannot be expected to act

mechanically with all the promptitude in giving a report to the police. At

Crl.Appeal No.825 of 2012               39

times, being grief-stricken because of the calamity, it may not immediately

occur to them that they should give a report. Unless there are indications of

fabrication, the court cannot reject the prosecution version as given in the

FIR and later substantiated by the evidence merely on the ground of delay.

Suspicion about the credibility of FIR normally arises only when the delay

remains unexplained (see Tara Singh v. State of Punjab (AIR 1991 SC

63);     Amar Singh v. Balwinder Singh (AIR 2003 SC 1164) and

Vidyadharan v. State of Kerala ((2004) 1 SCC 215).

       59.     It has come out in evidence in this case that immediately after

the incident, policemen had visited the crime scene. This fact is plainly

admitted by all the material witnesses and also seen from Ext.P11. The

incident was at about 8.30 a.m. on 05.12.2000. Ext.P11(a) FIR was

registered at 9.40 a.m. on the same day.          The informant himself had

mentioned in Ext.P11(a) FIR that when he went to the place of occurrence

shortly after the incident, policemen had come there. The question arising

for determination is whether there is any breach of duty on the part of the

SHO in registering a crime without waiting for a report from the informant?

       60.      A constitution Bench of the Supreme Court in Lalita Kumari v.

Government of Andhra Pradesh (2013 (4) KLT 632) has clearly held that

police is duty bound to proceed to conduct investigation into a cognizable

offence even without receiving information about commission of such

Crl.Appeal No.825 of 2012                40

offence, if the officer in charge of a police station otherwise suspects the

commission of an offence. Following proposition of law is declared:

                      "In terms of the language used in S.154 of

              the Code, the police is duty bound to proceed to

              conduct investigation into a cognizable offence

              even without receiving information (i.e., F.I.R.)

              about commission of such an offence, if the officer

              in charge of the police station otherwise suspects

              the commission of such an offence. The legislative

              intent is therefore quite clear, i.e., to ensure that

              every cognizable offence is promptly investigated

              in accordance with law.      This being the legal

              position, there is no reason that there should be

              any discretion or option left with the police to

              register or not to register an F.I.R. when

              information is given about the commission of a

              cognizable offence.      Every cognizable offence

              must be investigated promptly in accordance with

              law and all information provided under S.154 of the

              Code about the commission of a cognizable

              offence must be registered as an F.I.R. so as to

              initiate an offence. The requirement of S.154 of

              the Code is only that the report must disclose the

              commission of a cognizable offence and that is

              sufficient to set the investigating machinery into

              action."

       61.     In the above decision, it has been categorically held that

Crl.Appeal No.825 of 2012                 41

Section 154(1) Cr.P.C. does not admit of conferring any discretion on the

officer in charge of the police station for embarking upon a preliminary

enquiry prior to the registration of FIR. The principle stated is thus:

                        "Therefore, the context in which the word

                "shall" appears in S.154(1) of the Code, the object

                for which it has been used and the consequence

                that will follow from the infringement of the

                direction to register F.I.R.s, all these factors clearly

                show that the word "shall" used in S.154(1) needs

                to be given its ordinary meaning of being of

                "mandatory" character. The provisions of S.154(1)

                of the Code, read in the light of the statutory

                scheme, do not admit of conferring any discretion

                on the officer-in-charge of the police station for

                embarking upon a preliminary inquiry prior to the

                registration of an F.I.R. It is settled position of law

                that if the provision is unambiguous and the

                legislative intent is clear, the court need not call

                into it any other rules of construction."

       62.     It has come out through the testimonies of PWs 15 and 16 that

they did not make any serious enquiry as to who were the policemen

present at the scene before registration of Ext.P11(a). It is also not clear

whether they had forwarded any information about commission of the crime

to the SHO prior to the registration of Ext.P11(a). Lack of evidence on

these aspects coupled with the non-production of GD kept in the police

Crl.Appeal No.825 of 2012                42

station is a serious infirmity in the prosecution case, enabling the

appellants to raise a contention that first version of the incident was

suppressed with ulterior motives. It is true that the time gap between the

alleged incident and registration of Ext.P11(a) FIR may not be too long, but

in the peculiar facts established in this case, reasonable doubt may arise

about truthfulness of Ext.P11(a). Therefore, this is also a blemish in the

prosecution case.

       63.      About the significance of the GD, we may first refer to the

provisions in the Kerala Police Manual, 1970, dealing with duties of police

officers. Chapter XV in Vol.II of the Manual is relating to maintenance of

diaries and their scrutiny, etc. Rule 390, relating to Station General Diary

reads as follows:

                        "390. (1) The General Diary in K.P.F.

               No.57 is the record prescribed by the Police Act

               and by the Criminal Procedure Code for the

               recording of cognizable and non-cognizable cases

               and details of the daily events of the Station.

                       (2)   The main object of the Station General

               Diary is to safe guard the interests of the public by

               chronicling briefly at the time they arise all

               important occurrences affecting the Police and the

               public. A further object of the diary is to keep the

               superior    Police  Officers    informed    of  such

               occurrences.

Crl.Appeal No.825 of 2012                43

                       (3)  The entries in the diary should be as

               brief as possible consistent with the objects of the

               diary. The entries should be regarding the following

               among other occurrences reported at the Police

               Station limits."

Kerala Police Manual, 1971 (Vol.III) deals with administration. Rule 535,

relating to period of retention and destruction of records, reads as follows:

                       "535. (1)  Station and Circle records, which

               have to be retained in the District Police Office, will

               be sent to the District Police Office by the Circle

               Inspector at the beginning of the year.

                       (2)   At the close of each year, the

               Inspector will prepare and forward to the District

               Police Office by the 15th January, for the orders of

               the Superintendent of Police, a list in duplicate, in

               respect of each station and of his office, of time

               expired records which need not be retained and

               other useless papers for destruction. On receipt of

               the orders of the Superintendent of Police, the

               Inspector should send them to the District Police

               Office for being either retained there or sold to

               approved contractors. Records sold to contractors

               should be torn to pieces.

                       (3)   Similarly, Sub Divisional Officers will

               follow the same procedure as stated above in

               respect of records in their offices.

                       (4)   Names of records, period of retention

Crl.Appeal No.825 of 2012                44

               of each record, etc., are given in Appendix IV."

Appendix IV, Entry 29 shows that General Diary (Station copy) shall be

retained for three years and it should be destroyed by Inspector on the

sanction of the Superintendent of Police. In this case, there is no material

produced to find that the GD relating to that particular period was destroyed

as per the orders of the Superintendent of Police.

       64.     Above aspects clinchingly show that both the SHO and

investigation officer have failed in placing the relevant facts before the court

to establish that Ext.P11(a) is the FIR promptly registered and there was no

chance of getting any information by the SHO before the registration of

Ext.P11(a). Further, procedural regularity in maintaining the GD is also not

at all proved. These aspects cast a reasonable doubt in the mind of court

about the propriety of investigation. The appellants are certainly entitled to

get the benefit of doubt.

       65.     Besides the infirmities and irregularities in the investigation

and prosecution, the trial Judge has also contributed to a large extent to

thwart a fair trial. It is disturbing to note that the trial Judge ignored the

basic principles regarding the admissibility of a statement recorded under

Section 161 Cr.P.C.        Sessions Judges handling cases involving death

penalty or imprisonment for life should be sober in their judicial functions.

Above all, they are expected to know the rudimentary principles of

Crl.Appeal No.825 of 2012                45

substantive and procedural laws for conducting a fair trial. Every accused

has a right to get a fair trial under the Constitution, for which legal acumen

and soberity of Judges are essential qualities. Lest, the justice delivery

system will be a casualty, besides the affected persons. We are compelled

to re-state so because of the glaring illegalities in the trial process. Misuse

of the statements recorded by police under Section 161 Cr.P.C. is rampant

in this case, disregarding the basic principles of law.

       66.     Section 161 Cr.P.C. speaks about examination of witnesses by

police.    That part of the Section relevant for our purpose is quoted

hereunder:

                        "161. Examination      of   witnesses     by

               police.-      (1) Any police officer making an

               investigation under this Chapter, or any police

               officer not below such rank as the State

               Government may, by general or special order,

               prescribe in this behalf, acting on the requisition of

               such officer, may examine orally any person

               supposed to be acquainted with the facts and

               circumstances of the case.

                        (2) Such person shall be bound to answer

               truly all questions relating to such case put to him

               by such officer, other than questions the answers

               to which would have a tendency to expose him to

               a criminal charge or to a penalty or forfeiture.

                        (3)  The police officer may reduce into

Crl.Appeal No.825 of 2012                 46

               writing any statement made to him in the course of

               an examination under this section; and if he does

               so, he shall make a separate and true record of

               the statement of each such person whose

               statement he records:

                             Provided that statement made under

               this sub-section may also be recorded by audio-

               video electronic means:"

Under this Section, a police officer making an investigation can examine

the person acquainted with the facts of the case. The expression "any

person" occurring in the Section includes an accused person also (see

Mathew Zacharish v. State of Kerala - 1974 Cri.L.J. 1198 (Ker)).

       67.        Section 162 Cr.P.C. mainly deals with two things, viz.,

statements to police not to be signed and how the statements can be used

in evidence. Sub-section (1) of Section 162 Cr.P.C. with its proviso is

quoted hereunder:

                       "162. Statements to Police not to be

               signed - Use of statements in evidence.- (1) No

               statement made by any person to a police officer in

               the course of an investigation under this Chapter,

               shall, if reduced to writing, be signed by the person

               making it; nor shall any such statement or any

               record thereof, whether in a police diary or

               otherwise, or any part of such statement or record,

               be used for any purpose, save as hereinafter

Crl.Appeal No.825 of 2012               47

               provided, at any inquiry or trial in respect of any

               offence under investigation at the time when such

               statement was made:

                           Provided that when any witness is

               called for the prosecution in such inquiry or trial

               whose statement has been reduced into writing as

               aforesaid, any part of his statement, if duly proved,

               may be used by the accused, and with the

               permission of the Court, by the prosecution, to

               contradict such witness in the manner provided by

               Section 145 of the Indian Evidence Act, 1872 (1 of

               1872); and when any part of such statement is so

               used, any part thereof may also be used in the re-

               examination of such witness, but for the purpose

               only of explaining any matter referred to in his

               cross-examination."

Explanation to the Section says that an omission to state a fact or

circumstance in the statement referred to in sub-section (1) may amount to

contradiction if the same appears to be significant and otherwise relevant

having regard to the context in which such omission occurs. It further says

that whether the omission amounts to a contradiction in a particular context

shall be a question of fact.

       68.     On a plain reading of Section 162 Cr.P.C., it is crystal clear

that no statement made by a person to a police officer in the course of an

investigation under Chapter XII shall be used for any purpose at any

Crl.Appeal No.825 of 2012               48

enquiry or trial in respect of any offence under investigation at the time

when such statement was made, except to contradict such witness in the

manner provided under Section 145 of the Act. And when any part of such

statement is so used, any part thereof may be used in the re-examination

of such witness only for explaining any matter referred to in his cross

examination. Axiomatic principle is that the statement recorded by a police

officer under the above provision shall not be used for any purpose other

than those mentioned in the proviso to Section 162(1) Cr.P.C. This basic

principle has been violated by the Sessions Judge to the extreme prejudice

of the accused.

       69.     In the light of the clear provisions in Section 162 Cr.P.C., we

find no necessity to quote any precedent regarding the use of statements

recorded by police under Section 161 Cr.P.C. during an investigation. Still,

we may refer to two decisions by Division Benches of this Court in Alikutty

Alias Ali & Another v. State of Kerala (2006 (3) KLJ 467) and Sujith

K.M. v. State of Kerala (2010 KHC 224). In both these decisions, this

Court has clearly held that statements under Section 161 Cr.P.C. cannot be

treated as evidence in a criminal trial. In paragraphs 47 and 49 of the

judgment, we find clear breaches of this legal provision committed by the

trial Judge. As stated above, there are lot of contradictions and omissions

amounting to contradictions elicited from PWs 1 to 4 during examination.

Crl.Appeal No.825 of 2012                     49

All these lacunae have been filled up by the trial Judge relying on the

statement of the witnesses recorded under Section 161 Cr.P.C.               In

paragraph 47, the learned Sessions Judge has made the following

observations:

                   "........... A perusal of the evidence of PWs 1 to 3

               and their 161 statements would show that the ladies

               and children ran towards the house of CW1 crying

               after the incident. It is after Ashokan was killed the

               ladies (not PW1) and children ran towards the house

               of Govindan. ........."

       70.     In paragraph 49, the following observations are made:

                       " .............. A perusal of the 161 statement of

              PW1 will show that she has specifically stated the

              names of A1 and A2 with axe and chopper as the

              person who lead the assailants. The name of A3 to

              5 and the weapons held by them is also stated by

              PW1 to investigating officer. But she only stated

              that when the assailants came to the house of PW5

              the axe which A1 had with him and the chopper

              which A2 had, were blood stained.             She has not

              specifically stated to the investigating officer that she

              saw A1 to A5 entering the house of PW5. Similarly,

              PW2 has specifically stated the names of A1 to A5

              and the weapons which they possessed when they

              entered the house of PW5, before the investigating

              officer. She did not state that she saw blood stained

Crl.Appeal No.825 of 2012              50

              weapons with A1 to A5 when they came out. She

              only stated that after some time A1 and his friends

              went towards Kaivelickal through the southern side

              of the house. The statement of PW3 before police is

              also similar to that of PW2. Before court, PWs 1 to

              3 deposed that when A1 to 5 came out of the house

              of PW5 their weapons had blood in it. ..............."

Extraction of the above observations from the trial court's judgment clearly

show that the trial Judge had looked into the case diary statements of

material witnesses recorded by police under Section 161 Cr.P.C. Such

statements have been used against the accused despite the witnesses

have deviated from the case diary statements at the time of tendering

evidence. This action on the part of the Sessions Judge, in the modest

words, is the height of illegality possible in a criminal trial. Accused were

found guilty by referring to the case diary statements of the witnesses,

which were either deviated from or not proved at the trial.

       71.     Additional Sessions Judge, if so eager to reach at the truth,

could have invoked the provisions in Section 311 Cr.P.C. to summon any

person as a witness at any stage of enquiry, trial or other proceedings

under Cr.P.C. though not summoned as a witness. The Supreme Court in

Mohanlal Shamji Soni v. Union of India (1991 Cr.L.J. 1521) has held that

power of a court to recall any witness or witnesses already examined or to

summon any witness can be invoked even if the evidence on both sides

Crl.Appeal No.825 of 2012                51

has been closed so long as the court retains seisin of the criminal

proceedings. The object of the provision is to do justice not only from the

point of view of the accused and the prosecution, but also from the point of

view of an orderly society. The trial Judge did not think it fit to invoke this

provision to satisfy his judicial conscience. Instead, he tried to fill up the

lacunae in the prosecution case by resorting to an illegal act of relying on

the case diary statements as substantive evidence. We express deep

anguish for the lack of legalistic and justice oriented approach on the part

of a senior judicial officer in the subordinate judiciary. We refrain from

making any further comment on the conduct of the trial Judge because we

find other valid reasons too to upset the judgment under appeal.

       72.     From the above discussion, it is clear that the prosecution has

utterly failed to establish the guilt of the accused beyond reasonable doubt.

One more soul in a serial political killing goes unavenged due to unskilled

investigation and faulty prosecution. Victims (martyrs, as the parties may

call them for political gain) of the spate of political murders are from the

rank and file. Those who in the higher echelons masterminding and

orchestrating these barbaric activities remain safe and secure.           They

celebrate martyr's days and shed crocodile tears.

       73.     Inevitable conclusion is that the prosecution failed to establish

the guilt of the appellants beyond reasonable doubt and therefore we allow

Crl.Appeal No.825 of 2012               52

the appeal and set aside the judgment of the trial court.

               In the result, the appeal is allowed and the impugned judgment

is set aside. The appellants are found not guilty of any of the offences

charged on them in S.C.No.151 of 2003 on the file of the Additional

Sessions Court (Adhoc-II), Thalassery.          They are acquitted of all the

charges. They shall be set free forthwith, if not wanted in any other case.

               Before parting with the case, we direct the Registrar

(Subordinate Judiciary) to forward a copy of this judgment to the trial Judge

(Additional Sessions Judge), wherever he works and whatever post he now

holds, for future guidance.




                                   P.R.RAMACHANDRA MENON, JUDGE.




                                         A. HARIPRASAD, JUDGE.




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Crl.Appeal No.825 of 2012                   53




            P.R.RAMACHANDRA MENON & A.HARIPRASAD, JJ.
                           --------------------------------------
                            Crl.Appeal No.825 of 2012
                           --------------------------------------
                     Dated this the 6th day of February, 2017

                               GIST OF JUDGMENT


A.Hariprasad, J.


               Accused persons convicted and sentenced in S.C.No.151 of

2003 on the file of the Additional Sessions Court (Adhoc-II), Thalassery

have preferred this criminal appeal. This Court has pronounced judgment

in the appeal finding that the appellants, viz., (1) Mottammal Shaji @ Kakka

Shaji, S/o.Kunhikannan, Panoor Amsom, Kootteri; (2) Karyullathil Sajith @

Aasha Sajith, S/o.Govindan, Puthoor Amsom, Kootteri; (3)                      Mullan

Kunnummal Uthaman, S/o.Kumaran, Malantavida House, Panoor Amsom,

Chirayinbhagam;          and  (4)        Moodentavida           Rijesh, S/o.Govindan,

Moodenatvida House, Puthoor Amsom, Kootteri, are not guilty of the

offences punishable under Sections 143, 147, 449 and 302 read with

Section 149 of the Indian Penal Code, 1860 and they are acquitted of all

the charges in the above Sessions Case. Therefore, they are entitled to be

released forthwith, if not wanted in connection with any other case.

       Registrar shall immediately communicate this direction to the

Crl.Appeal No.825 of 2012           54

Crl.Appeal No.825 of 2012       2




Superintendent of Jail, Central Prison, Kannur for compliance.




                           P.R.RAMACHANDRA MENON, JUDGE.




                                     A. HARIPRASAD, JUDGE.




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