Supreme Court of India
Kanakarajan @ Kanakan vs State Of Kerala on 21 April, 2017Author: N Ramana

Bench: N.V. Ramana, Prafulla C. Pant









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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