IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 CRL.A.No. 152 of 2005() ----------------------- SC.6/1994 of ADDL.SESSIONS COURT, THODUPUZHA .................... APPELLANT: COMPLAINANT ---------------------- STATE OF KERALA, REP. BY STATE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SHRI JAI GEORGE RESPONDENT: ACCUSED 2 ----------------------------- BHASKARAN, S/O.KELAN, VARAKIL HOUSE, ANAVIRATTI KARA, VELLATHUVAL VILLAGE. BY ADV. SRI.JOSE J.MATHIEKAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.A.No.152 OF 2005 ----------------------------------------------------- DATED THIS THE 12th DAY OF AUGUST, 2008 J U D G M E N T Balakrishnan Nair, J. State is the appellant. It challenges the acquittal of the respondent herein who was the second accused( originally 3rd accused) in S.C.No.6/94 on the files of the Additional Sessions Court, Thodupuzha. Before the re-numbering of the case, he was accused No.3. He faced trial for the offences under sections 302, 392, 201 and 506(ii) read with Section 34 of IPC along with the first accused. The first accused was convicted. His conviction was upheld by this Court also. But the second accused Bhaskaran, the respondent herein, was acquitted. Hence this appeal by the aggrieved State. 2. The brief facts of the case are the following: The accused decided to commit murder of Alekutty, the wife of Joseph, Maliackal House, Aanaviratty Kara, Vellathooval Village to rob her ornaments and other valuables. On 15.9.1993 at about 4.15 PM, while she was returning to her house through Mankadavu Road, the first accused and Mr.Roy, the son of the second accused followed her. At about 5.30 PM, at a vacant place, 68 meters south-west from the CRL.A.No.152/05 -2- house of the first accused at Mankadavu, they hit her on her head using stones. Fracture was caused on her skull and she fell down. She was dragged to the cocoa plantation of PW1 by them. When PW1 came there, the first accused waived a knife at him and put him under fear of death. He ran away. Thereafter, the first accused and Roy robbed the gold chain, two bangles, one ear ring, one watch, purse and umbrella which were in the possession of Alekutty. Thereafter, on the instructions of the second accused (respondent herein), a knot was put on the neck of Alekutty with her saree and she was strangulated to death. Thereafter, she was dragged to the northern side of the cocoa plantation of PW1. The first accused, for the purpose of destroying evidence, burned the purse and umbrella of Alekutty and the second accused threw the remnants of the burned umbrella into the nearby river. The above acts were done by the accused 1 and 2 and Roy in furtherance of their common intention. 3. Accused 1 and 2 faced trial in which the first accused was convicted as mentioned earlier. The learned Additional Sessions Judge found that there is no evidence to connect the respondent herein with the murder and robbery and therefore he was acquitted. Hence this appeal. 4. The learned Public Prosecutor who appeared for the appellant took us through the evidence adduced by the prosecution in this case. CRL.A.No.152/05 -3- The same consists of the depositions of PWs 1 to 18, documents Exhibits P1 to P15 and material objects MOS 1 to 27. From the defence side, Exhibits D1 to D5 were marked which were the contradictions in the depositions of some of the witnesses with reference to their CD statements. With the assistance of the learned Public Prosecutor, we perused the entire evidence on record. 5. We notice that among the witnesses, only PWs 12, 14 and 18 gave evidence against the respondent herein. PW12 is the Managing Partner of K& K Financiers, which is a firm engaged in money lending. He has deposed that the respondent along with one Mr.Kurian came to his office on 16.9.1993 and pledged MO5 gold bangle for an amount of Rs.1,000/=. The same was recovered by the police in the presence of the accused on 19.9.1993, as per Exhibit P5 mahazar. The register of the bank was verified by the police. Exhibit P6 is the mahazar prepared for that. MO5 was a gold bangle identified to be belonging to the deceased. PW14 has stated about the recovery of the burned umbrella, at the instance of the respondent which was marked as MO9. It was at 4 PM on 19.9.1993 in the presence of the Circle Inspector and the said witness. Exhibit P10 is the mahazar prepared for that. PW18, the Head Constable of the Police Station at the relevant time has stated that as per Exhibit P4 mahazar, MO2 and MOs 19 to 27 were recovered from the respondent. CRL.A.No.152/05 -4- He has also stated that it was in his hand writing Exhibit P5 mahazar was prepared relating to seizure of MO5. 6. These are the materials on record against the respondent. The learned Additional Sessions Judge who considered the matter declined to believe the prosecution case regarding the recovery of MO5 gold bangle from K&K Financiers. The relevant portion of the judgment dealing with this matter is paragraphs 33 and 34 . The learned Additional Sessions Judge held that the version of PW12, the Managing Partner of K & K Financiers lacks credence and has chosen to not believe his version. Going by the reasons given, we feel that it is a plausible view taken on facts. So, we may not be justified in reversing the same while hearing an appeal against acquittal. Again, at paragraph 48 of the judgment under appeal, the learned Additional Sessions Judge has dealt with the prosecution case of involvement of the respondent in the murder and robbery. After referring to the evidence on record, the learned Additional Sessions Judge has observed that there was no role for him in the murder and robbery. We fully concur with the said view. PW1 saw only the first accused and Roy at the scene of occurrence. The other witnesses, who have spoken to about the above said two persons following the deceased on the date of occurrence, have not mentioned anything about the respondent herein. So, there is absolutely nothing to CRL.A.No.152/05 -5- connect the accused with the crime. Of course a charge against him might have been possible for the offence under Section 411 IPC. The learned Additional Sessions Judge has also stated that he did not deal with the said aspect as there is no charge against the accused under the said Section. We are in full agreement with the view taken by the learned Additional Sessions Judge regarding the culpability of the respondent herein in the robbery and murder. In the result, the Criminal Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn