IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 CRL.A.No. 1299 of 2007() ------------------------ SC.120/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM .................... APPELLANTS: ACCUSED NOS.1 & 2 ------------------------------- 1. PRIYAN, S/O.PRAKASAN, PEEDIACKEL HOUSE, NEAR PASHNITHODU BRIDGE, PALLURUTHY KARA, EDAKKOCHI VILLAGE, ERNAKULAM. 2. SUNIL @ CONTAINER SUNI, S/O.GEORGE, IDATHIL HOUSE, PAMPAIMOOLA BHAGOM, PALLURUTHY KARA, EDAKKOCHI VILLAGE, ERNAKULAM. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2009 ALONG WITH D.S.R.NO.3 OF 2007, THE COURT ON 10/12/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ D.S.R.No.3 of 2007 and Cr. A. No.1299 of 2007 ------------------------------------------------------------------ Dated 10th December 2009 Judgment Bhavadasan, J. Five persons were arrayed as accused in Crime No.110/2005 of Ettumanoor Police Station, for the offences punishable under Ss.302, 201 and 417 read with S.34 IPC. Initially, A1 and A2 alone were available for trial and the other three accused, including the appellants herein, were absconding. Later on, the appellants surrendered before Court and they stood trial. The appellants were found guilty of the offences alleged against them and were sentenced to the punishment mentioned earlier. Death Sentence Reference is filed as per S.366 Cr.P.C. 2. The case of the Prosecution, in brief, is as follows : Praveen, a young man, aged about 20 years, at the time of the incident and the elder son of PW1, was employed with the first accused in the case, namely, Shaji, who was then functioning as the Deputy Superintendent of Police in the Kerala Police Department. He was serving at Malappuram, at the relevant time. Praveen was engaged as a Conductor of the bus, owned by the wife of the first Cr.A.No.1299/07 & DSR 03/07 2 accused Shaji and he was also the driver of the personal car belonging to Shaji. The deceased Praveen was allowed to stay in a room of the lodge, belonging to Shaji, who was residing nearby, with his family. Praveen was related to the first accused and so, he had absolute freedom in the house of the first accused Shaji, who, as already stated, was working as a Dy.S.P. in the Kerala Police Department. It seems that Praveen misused the freedom given to him, as he developed an unholy relationship with the wife of the first accused. On coming to know about the said relationship, the first accused became furious and Praveen was thrown out of his job. Praveen was fortunate enough, to get employment as a Driver in a shop, distributing mattresses. However, the first accused was in no mood to spare him. The allegation of the Prosecution is that the first accused conspired with the other four accused persons, had Praveen brought to him by the second accused and thereafter, murdered him. The further allegation is that the first accused dismembered the body of Praveen and threw the various parts of his body at various places. The appellants herein and the other accused are alleged to have aided the first accused in his commissions. Cr.A.No.1299/07 & DSR 03/07 3 3. Praveen, who had gone for his job, as usual on 15.02.2005 also, did not return home. Initially, the members of his family thought that he would have gone to attend the festival in the temple at Ettumanoor. The next day also, he did not return. That aroused the suspicion of the members of his family and they informed PW1, the father of Praveen, who was working at Thiruvananthapuram, about the same. Though PW1 tried to locate his son, he was unsuccessful. He, therefore, laid a complaint before the Police on 18.02.2005. In the meanwhile, it so happened that the various parts of the body of Praveen, which were disposed of by the accused, surfaced in the backwaters, at various places. The body parts were identified as that of Praveen, by PW1 when he was taken to various places and parts of the body were shown to him. Ultimately, the various crimes registered in various Police Stations, on sighting the legs, hands and torso at different places, were consolidated and Crime No.110/2005 of Ettumanoor Police Station was treated as the leading case. 4. The Prosecution case is that with the active participation of the first accused and as per his instructions, the second accused managed to bring the deceased Praveen with him from Ettumanoor to Kottayam on 15.02.2005 in the evening. Late in the night, while the Cr.A.No.1299/07 & DSR 03/07 4 second accused was returning in his motor bike along with Praveen, as part of the conspiracy between the accused persons, A1 caught hold of Praveen at a particular place at Kottayam and then murdered him. The case was investigated by PW67 Circle Inspector of Police. There is a further allegation that before causing the death of Praveen, he was forced to write Ext.P1 letter to his father, by the first accused in the case, to the effect that he was leaving for Bombay in search of some job. PW68 Dy.S.P., who took over the investigation of the case, after recovering various parts of the body, identified them as belonging to Praveen, according to the statements of the witnesses and had the first accused arrested. Then, he came to know about the role of other accused persons also, in the crime. He sent the parts of the body recovered for chemical analysis, and also seized the vehicle used by the first accused. He also had the assistance of the Scientific Assistant, attached to the Mobile Laboratory of the Kerala Police Department. It appears that the two appellants herein surrendered before PW68. PW68, on the basis of the confession statements said to have been given by the appellants, located various places, where the accused had gone on the relevant date. Finally, after completing the investigation, he laid charge before Cr.A.No.1299/07 & DSR 03/07 5 Court. 5. The Judicial First Class Magistrate, Ettumanoor, before whom the final report was laid, took cognizance of the offence. The case was committed to the Sessions Court, Kottayam and the Sessions Court made over the case to the Additional Sessions Court Fast Track (Ad hoc) No.II, Kottayam, for trial and disposal. The latter Court, on receipt of the records, required presence of the appellants and after hearing them, charge was framed for the offences punishable under Ss.302, 201 and 417 read with S.34 IPC. The charge was read over to the accused, who pleaded not guilty and claimed to be tried. The Prosecution had PWs 1 to 68 examined and Exts.P1 to P189(b) marked. MOs.1 to 65 were got identified and marked. After the close of the evidence, the accused were questioned under S.313 Cr.P.C. They denied all the allegations and the incriminating circumstances brought out in evidence against them and maintained that they were innocent. Presumably finding that they could not be acquitted under S.232 Cr.P.C., they were asked to enter on their defence. The accused chose to adduce no evidence, except producing Ext.D1. On appreciation of the materials before it, the Court below found that the Prosecution has succeeded in Cr.A.No.1299/07 & DSR 03/07 6 establishing the case against the appellants. Accordingly, they were convicted and sentenced, as already mentioned. The conviction and sentence are assailed in these appeals and reference is made to this Court under S.366 Cr.P.C. for confirmation of the sentence awarded to the appellants. 6. The questions that arise for consideration in these cases are : 1. Whether the Court below was justified in coming to the conclusion that the Prosecution has succeeded in proving the acts alleged against the appellants. 2. Whether the Court below was justified in awarding capital punishment to the accused persons. 7. As already stated, Praveen, who was the elder son of PW1, was initially an employee of the first accused in Crime No.110/2005 of Ettumanoor Police Station. For reasons as already stated, he left the employment under the first accused and at the relevant time, he was employed with a shop, dealing in mattresses, at Ettumanoor. The Prosecution case, in brief, is that the first accused in the above said Crime, who nursed grudge against the deceased Praveen, had the deceased brought to him by the second accused and the first Cr.A.No.1299/07 & DSR 03/07 7 accused, with the help of the appellants herein, murdered the deceased. Thereafter, his body was dismembered and various parts of his body were thrown at various places. 8. PW1 is none other than the father of the unfortunate Praveen. He has two sons of whom, Praveen is the elder one. He would depose that Praveen was, earlier employed as a Conductor in the bus, owned by the wife of the first accused Shaji and also the driver of the personal car belonging to Shaji. PW1 deposed that Praveen had worked with Shaji from 2001 till the end of 2004. PW1 would say that by the end of November 2004, his brother informed him that something had gone wrong in the work place of Praveen. He also told PW1 that Praveen should be brought home before Shaji reaches his house at Palluruthi. Since PW1 found it impossible to return home immediately, he requested his brother to take steps as are necessary, to ensure the safety of Praveen. Accordingly, the younger son of his brother went to Palluruthi and brought back Praveen to their house. PW1 would state that his brother received a phone call from Shaji, demanding that Praveen should be taken to him immediately. He threatened that otherwise, he would come to their house and do away with Praveen. PW1 asked his brother to Cr.A.No.1299/07 & DSR 03/07 8 take his son to Shaji. PW1 says that when Praveen was taken to the house of Shaji, he was brutally manhandled by Shaji. Thereafter, he had taken Praveen to Thiruvananthapuram for treatment and after the treatment period, Praveen returned home and began to attend to his work. On 16.02.2005, PW1 says, when he reached home from Thiruvananthapuram, he did not find Praveen there. His wife told him that Praveen had gone for his work on the previous day morning i.e., on 15.02.2005 and had not returned till then. She also told him that since festival was going on in Ettumanoor temple, she thought that Praveen would have gone to attend the same. PW1 says about the frantic searches made by him for his son. But, he was unable to locate him. He enquired with Shaji also. Shaji seems to have told him that Praveen had not gone there and also told him, what his son had done. He says about the letter received by him when he returned home thereafter. He would depose that on 18.02.2005, he laid a complaint before the Police and he identified his complaint as Ext.P2. He then speaks about the news in the newspapers of 16th and 18th February, to the effect that parts of the body of a person were found surfaced in the backwaters at various places. The Sub Inspector of Police took PW1 to Medical College Hospital and the lower limbs Cr.A.No.1299/07 & DSR 03/07 9 procured by the Police were shown to him. He recognised them as that of Praveen. Later on, he came to know that the upper limbs and head were also recovered and he identified them also, as that of his son. Thereupon, he was convinced that his son Praveen was no more. He speaks about the various steps taken by the Police Officers and also the fact that he and his wife were subjected to DNA test. 9. PW2 is a worker attached to a thattukada (a four wheeler cart, vending food) run by PW10, situated on the opposite side of Arcadia Bar near K.S.R.T.C. Bus Stand, Kottayam. The said witness deposed that on 15.02.2005, at about 8.30 pm, two persons had come to the thattukada on a motor bike. They asked for two “bull's eye” (half-fried eggs) and they were served with the same. PW2 would also say that one of the persons, named Vinu, who was the second accused, was familiar to him and he asked Vinu, who was accompanying him and he replied that it was Praveen. PW2 deposed that A2 told him that they have a plan to go for a movie and when his suggestion was sought for, he replied that “Udayananu Tharam” was a good movie. They left the place. PW2 then says that at about 11.30 p.m. on the same day, he found a Maruti van halting near Arcadia Hotel. He deposed that he had occasion to see the first Cr.A.No.1299/07 & DSR 03/07 10 accused, namely, Shaji, getting down from the car and going towards K.S.R.T.C. Bus Stand side. The three other persons in the car got down and they took black coffee from the shop of PW2. He, however, failed to identify the accused in Court. 10. PW3 is a close relative of PW1. He too says that, for quite some time, the deceased Praveen was working for Shaji, who was a resident of Palluruthi. He would depose that for compelling reasons, Praveen had to leave that job. This witness says that one day, towards the end of November, a phone call was received from Smt.Vijayamma, who is closely related to them, to the effect that they should go and bring back Praveen immediately, for his safety. She also pointed out that this should be done before the first accused Shaji reaches Palluruthi. Immediately, Praveen was brought back to his home by his cousins and uncle. Thereafter, they received a phone call from the first accused, demanding that Praveen should be taken to him immediately. He would also say that the first accused namely, Shaji had come to attend the marriage engagement function of the second accused and there, he asked PW3 whether Praveen had come to attend the function. When he replied that he has not, Shaji openly declared that if Praveen had come there, he would have Cr.A.No.1299/07 & DSR 03/07 11 chopped him into pieces. Within a few days after the said incident, Praveen was found missing. He then speaks about the identification of the body parts of Praveen, by PW1. 11. PW4, who is a Blacksmith, says that at the behest of the first accused Shaji, he had crafted MO4 chopper. PW5 is closely related to PW1. He speaks in tune with the evidence furnished by PW1, the father of Praveen. He claims that he had gone to Pallurthi to bring back Praveen. He would also say that when Praveen was taken back to Shaji as demanded by him, Praveen was brutally man- handled by Shaji. He would also say that Praveen apologised to Shaji for his misconduct and Shaji had told him that he should never be seen at Ernakulam. Rest of his evidence is similar to the one given by PW1. The evidence of PW6, 7, 8 and 9 are not very relevant in the present context, except that PW8 would say that Shaji, the first accused in the crime had taken the Maruti Van belonging to him, for a day. 12. PW10 is the owner of the thattukada, on the opposite side of Arcadia Bar near K.S.R.T.C. Bus Stand, Kottayam. He says that Cr.A.No.1299/07 & DSR 03/07 12 on 15.02.2005, two persons had come to his shop at about 8.30 pm. and had “bull's eye”. He also says that one among them was familiar to him and he introduced the other person to him and PW2. After taking food from their shop, they went towards Anand Theatre to watch a film. At about 11.30 pm. on the same day, a Maruti van was stopped and parked near Arcadia Hotel. Rest of the evidence of PW10 is in tune with that of PW2. 13. PW11 is an autorickshaw driver, by profession. He says, on 15.02.2005, while he was going through Chemmanampadi Junction near Medical College, at about 12 midnight, he happened to see a motor bike and a Maruti van, parked by the side of the road. He would depose that he saw two persons, coming out of the van and dragging the person sitting behind the bike, into the van. However, he was unable to identify the accused in Court. 14. PW12 is another autorickshaw driver, who claims to have seen a Maruti van, parked by the side of the road to Arpookara temple. As far as the appellants are concerned, there is nothing in the evidence to show that they had any role to play in the incident. This witness was also not able to identify the appellants in court. The evidence of PW15 is not very Cr.A.No.1299/07 & DSR 03/07 13 relevant. PW16 was examined to ascertain whether any of the appellants was familiar to him. He, however, was unable to identify any of the appellants in court and he also stated in his evidence that the person by the name he knows, is a different person. PW17 was examined to show the involvement of the first appellant in the incident, but he was also unable to identify the appellants in court and pointed out that he had no familiarity or acquaintance with the appellants. He further stated that the persons he knows by the names Praveen and Sunil are different persons, than those present before court and the persons whom he knew, were not involved in any case at all. The evidence of PW18, who is the Deputy Police Surgeon, attached to the Medical College, Kottayam had conducted the potency examination of Shaji. There is not much relevance in the evidence given by this witness in the present context. PW19 Professor of Forensic Medicine and Police Surgeon, Medical College, Kottayam had conducted autopsy on the limbs of an unknown person and had filed Ext.P25 report. He had also examined the torso and filed Ext.P27 report. 15. The evidence of PWs 20 to 34 are that of formal witnesses and they have no much significance in the present case. PW35 is Cr.A.No.1299/07 & DSR 03/07 14 the Scientific Assistant, attached to the District Mobile Laboratory, District Police Office, Kottayam. He speaks about having collected samples from various places and also from the Maruti van. PW36 was examined to show that the first appellant in this case, namely, Priyan was related to him and he was involved in the incident. However, this witness turned hostile to the Prosecution and the Prosecution could not derive any support from his evidence. He did not identify the accused before Court also. In fact, his case was that the person by name Priyan, present before court, was not the person, who was familiar to him. He denied the various statements alleged to have been given by him earlier, to the Police. However, he stated that Priyan had told him that “Shaji Sir has betrayed us” and that he would also say that Priyan had told him that he had to keep away from there for some time. 16. PWs37 and 38 are First Class Judicial Magistrates, who recorded the statements of witnesses under S.164 Cr.P.C. PW39 was examined to show that the accused persons had bought from his shop, a towel, which was allegedly used to strangulate the deceased person. While he admitted that the Police had brought the appellants to his shop, he denied of having sold any towel to them. Cr.A.No.1299/07 & DSR 03/07 15 He also denied of having given any statement to the police to the effect that the accused had purchased the towel shown to him from his shop. He turned hostile and the Prosecution derived no support from his evidence also. 17. PWs 40 and 41 are formal witnesses. So also, PWs 42 to 44. PW45 is a Police Constable, whose evidence is not very relevant in the present context. PW46 is a Police Constable, attached to the Vaikom Police Station, who claims to have seen the torso of a person near Thanneermukkom bund. He informed the matter to the C.I. of Police, who came to the spot and did whatever was necessary, thereafter. PW47 is the staff attached to the Judicial First Class Magistrate's Court, Ettumanoor, who had forwarded the various articles produced before court for chemical examination. PW48 was examined to prove the recovery of a weapon. However, he denied of having familiarity or acquaintance with the accused persons and denied that he had seen any recovery, claimed to have been made by the Police. PW49 owns property at Eramalloor. He says, on 22.01.2006, Police had come to his property by about 4-4.30 pm. The two accused persons before court were also brought by the Police along with them. He came to know that the severed head of Cr.A.No.1299/07 & DSR 03/07 16 deceased Praveen had been buried in his property. But, nothing was recovered from there. However, he deposed that he had no familiarity with the accused persons. PW50, a salesman in a petrol bunk, was examined to prove that petrol was bought from his bunk for the Maruti van driven by Shaji and that he had happened to see the present appellants in the said vehicle. However, he stated that in the van driven by Shaji, there were three other persons, but he did not know them at all. In court, he deposed that he does not know the accused also. PW51 is the Salesman of the very same petrol bunk and his evidence is, in no way different from that of PW50. The evidence of PWs 52 and 53 has no much significance. The evidence of PW54 has got some relevance. He runs a shop at Bombay. His family is also settled in Bombay. He deposed that he knew the accused persons i.e., the appellants herein. They had come to his shop in Bombay and enquired about a person named Madhu. They specified that they were on the look out of Madhu, who deals in passports. They wanted to have their passports made. PW54 would say that at that time, another person, named Sunil was also in his shop and he talked to the accused persons. The accused gave their names as Santhosh and Cr.A.No.1299/07 & DSR 03/07 17 Deepak. He states that Sunil took them to Highway Lodge and told them to take a room there. Later on, they came to him again and asked him to take them to another lodge as they had no money to pay a daily rent of Rs.300-350/-. So, he found out another place for them. He says that later on a few occasions, he had gone to the hotel and had occasion to see the persons there. He identified the persons before court also. PW55 is a person, who runs a mess at New Varaval in Bombay. He deposed that PW54 had brought them to his mess and requested that they may be provided with lodging. This witness would say that he provides lodging and food for Rs.2000/- per month. He would depose that the accused persons resided there for about 3-4 months. Later on, he came to know from the newspapers that they were accused in a murder case. A few days thereafter, Police had come to his mess. The Police had brought the photos of the accused with them. He identified them and told them that they had stayed in his mess for some time. He identified the accused before court also. 18. PW56 deposed that the second appellant is familiar to him. He says that he had sold a portion of his property to one Sekharan. The son of Sekharan, namely Saji had put up a building in the said Cr.A.No.1299/07 & DSR 03/07 18 property and in that building, the second accused came with Saji and stayed there for 2-3 days. Later, when he met Saji, he told him that he was involved in a case.