IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA, 1927 CRL.A.No. 922 of 2006() ----------------------- SC.273/2004 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT(S): -------------- PRABHAKARAN @ PULI PRABHAKARAN, CONVICT NO.3226, CENTRAL JAIL, KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): --------------- STATE OF KERALA. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Crl.A.No.922 of 2006 ---------------------------------------- Dated this the 5th day of March 2010 J U D G M E N T Basant,J i) Was the deceased available with accused Nos.2 to 4 when they went to the house of PW8 at Koodathai on the evening/night of 15/10/1995 to pick up the 1st accused, the appellant herein? ii) Was the deceased murdered and his body disposed of by accused 2 to 4 before the 1st accused joined them at (near the house of PW8)? iii) Is the appellant entitled to atleast the benefit of doubt on the above questions of fact? iv) Can an accused against whom charges are framed only under Sections 392 and 302 I.P.C, if found entitled to the benefit of doubt on those charges, be convicted and sentenced under Sections 411 and 201 I.P.C even in the absence of a specific charge? Crl.Appeal No.922/06 2 2. These questions arise for consideration in this appeal where the first accused, in a separate trial held against him on charges under Sections 364,392 and 302 read with 34 I.P.C has been found guilty, convicted and sentenced inter alia to undergo the sentence of imprisonment for life. Investigation into the crime in which charge sheet is filed started with Ext.P1(a) F.I.R registered at the Ambalavayal police station on 17/10/1995 on the basis of Ext.P1 complaint lodged by the brother of the deceased (PW1) who complained that his brother was missing. After completing the investigation final report was filed by PW53 alleging commission of offences under Sections 364,392 and 302 I.P.C by four accused persons including the appellant/1st accused. The 3rd accused has not been apprehended so far. Even at the crime stage, he could not be apprehended. He is said to be at large even now. Accused 1,2 and 4 had appeared before the Sessions Court after cognizance was taken by the learned Sessions Judge consequent to the order of committal passed by the learned Magistrate. At that stage, the appellant herein, the 1st accused started absconding. The trial against accused 2 and 4 proceeded. They were found guilty, convicted Crl.Appeal No.922/06 3 and sentenced by the trial court. Both of them were sentenced to death. The death sentence was referred to this court for confirmation. Accused 2 and 4 preferred an appeal. Another Bench of this court, by judgment dated 17/10/1995, upheld the verdict of guilty and conviction on all counts; but did not confirm the sentence of death and reduced to imprisonment for life. Accused 2 and 4, it is submitted, had preferred a special leave application before the Supreme court and by order dated 02/04/2007 in special leave application 6190/06, that petition was dismissed and leave was refused. The appellant herein/1st accused was apprehended on 29/7/2004 and was produced before the court below. He continues in custody from that date. 3. In the separate trial conducted against the appellant, the prosecution examined PW1 to PW54 and proved Exts.P1 to P62. MOs 1 to 13 were marked. On the side of the accused, no defence witness was examined. Exts.D1 to D10(a) were marked on the side of the accused. When PW8 was examined, a letter Ext.X1 was proved through him. 4. It will now be apposite to refer to the case of the prosecution and the case of the appellant/1st accused. The crux Crl.Appeal No.922/06 4 of the allegations against the appellant/1st accused is that he had acted in furtherance of the common intention with accused 2 to 4. The factual allegations relied on by the prosecution is that accused 2 to 4 at Ambalavayal hired the taxi jeep of deceased Manoj Kumar on 15/10/1995 at about 4.30 p.m allegedly for a journey to Thamarassery. The deceased agreed for the trip and along with accused 2 to 4, he started from Ambalavayal in his jeep No.KL-12-5879 (temporary registration No.KL-11- 7022/95/D). They reached a place called Kaithapoyil at about 6.00 p.m. They proceeded to the house of PW8, an uncle of the 1st accused where the 1st accused was waiting for them. It is the case of the prosecution that later on that night accused 1 to 4, along with the deceased, started in that jeep to Kakkayam. There the 1st accused met CW10, the son of PW8. The accused, along with the deceased, returned from Kakkayam and at a place called Kariyathumpara, in furtherance of their common intention, accused 1 to 4 caused the death of the deceased by strangulation and smothering. It is the case of the prosecution that MO5, a towel available in the jeep was used by the miscreants as ligature to strangulate the deceased. Prosecution Crl.Appeal No.922/06 5 further alleged that the miscreants, along with the dead body of the deceased, returned from the spot of the crime. They removed MOs 1 and 2 clothes worn by the deceased and dumped the dead body of the deceased from the Koodathai bridge into the Koodathai river sometime between 10 p.m and 10.30 p.m. From there, the jeep sped away. MOs 1 and 2 were concealed by the second accused by the side of the road on a pocket road between Koodathai and Thamarassery. From there, accused 1 to 4 proceeded in the jeep towards Kozhikode and MO5, the towel used as ligature for strangulation was allegedly thrown out and concealed by the 1st accused/appellant herein. The accused persons, along with the appellant proceeded in the same jeep driven by the 4th accused towards Kozhikode. They allegedly left the 2nd accused at Kozhikode. Accused 1,3 and 4 proceeded from Kozhikode towards Thopramkudy in Idukky district where the house of the 1st accused is situated. They reached Thopramkudy before dawn on 16/10/1995. There, attempts were made by the 1st accused, to dispose of the said jeep. The activities of the 1st accused and the presence of accused 3 and 4, strangers, along with a new jeep which they attempted to dispose of hastily, Crl.Appeal No.922/06 6 appears to have aroused the suspicions to the local people. PW28 passed on the information to the police at Murikkassery. Some other thefts had allegedly taken place in the locality and the police got the vehicle and retained it at the police station. The appellant/accused went to the police station on 17/10/1995. He was allegedly asked to produce the documents of the vehicle and the driving licence. According to the prosecution, Ext.P36 requisition was issued to the 1st accused/appellant and he acknowledged the same. Accused 3 and 4 were sent back to their native place allegedly to bring the documents. 5. In the meantime, an unidentified dead body was located near the Koodathai bridge in the river. Ext.P11(a) F.I.R was registered under the caption 'unnatural death' on 16/10/1995 itself. Investigation into that crime revealed that the body was that of Manoj Kumar, in respect of whose disappearance, Ext.P1(a) crime had already been registered. The police came to know that the vehicle, which was detained at the Murikkassery police station, was the same which the deceased was driving when he left Ambalavayal on 15/10/1995. According to the prosecution, the 1st accused in an attempt to Crl.Appeal No.922/06 7 conceal the identity of the jeep had purchased paint, brush etc. and had painted the number plate of the vehicle black on 16/10/1995 itself - before it was removed to the police station. The appellant/accused was arrested on 21/10/1995. He was interrogated. He allegedly confessed and furnished information about the disposal of MO5 towel. The same was recovered on the basis of such information furnished by the appellant. The prosecution, in these circumstances, alleged that the appellant is also guilty of the offences punishable under Sections 364,392 and 302 I.P.C. 6. The appellant/accused has taken up a fairly specific and definite defence. In the course of cross-examination of the prosecution witnesses, in the course of 313 examination as also in the detailed and exhaustive statement filed by him before the trial court, he has advanced the following specific version. 7. According to the appellant, he resides in Thopramkudy within the jurisdiction of Murikkassery police station. He has relatives in Malabar. He had to attend the betrothal ceremony of a cousin of his. He had, hence, come to Malabar for that purpose. He had gone to meet his brother-in- Crl.Appeal No.922/06 8 law. There he happened to meet the 2nd accused. The 2nd accused deals with vehicles. In the course of the interactions with the 2nd accused, the 2nd accused sought and the 1st accused agreed that it will be easier to find buyers in Idukki district and the 1st accused offered to help him. The 2nd accused showed an old jeep which he wanted to dispose of. The 1st accused informed the 2nd accused that he can go over to the house of PW8 on the evening of 15/10/1995 from where they could proceed together to Idukki/Thopramkudy and attempt disposal of the vehicle. Accordingly, the appellant/1st accused was available in the house of PW8. On that night, 2nd accused came there along with the jeep. He had accused 3 and 4 also with him. Instead of the old jeep, which was shown to him, the 2nd accused had brought a new jeep for sale. The appellant, along with accused 2 to 4, proceeded from the house of PW8 towards Idukki. The deceased was never available in the vehicle. They did not go to Kakkayam at all. They reached Thopramkudy by dawn on 16/10/1995. Attempts were made to dispose of the vehicle. They did not succeed. Police orally wanted the documents to be produced. Ext.P36 was not issued to him. Crl.Appeal No.922/06 9 Before he could get the documents and produce them before the police, the police took the vehicle to the police station. There, the appellant was asked to produce the documents. He did not have the documents with him. So, he had sent accused 3 and 4 to their native place to come back with the documents which they agreed. Accused 3 and 4 went away from Thopramkudy to their native place. The police, on mere suspicion, had detained the appellant. He had not made any confession to the police. The appellant had not led the police to recover MO5. He is absolutely innocent. A false allegation is being raised against him. 8. Courts in this case are called upon to choose between these rival versions. The prosecution contends that the evidence adduced is sufficient to come to a safe inference of guilt against the appellant. No direct evidence is available about the crime. The prosecution's case rests on circumstantial evidence. We shall now attempt to narrate the circumstances relied on by the prosecution. Reliance is placed on the following circumstances. Crl.Appeal No.922/06 10 i) Accused 2 to 4 had hired the taxi of the deceased at Ambalavayal for a trip to Thamarassery at 4.30 p.m on 15/10/1995. ii) They had reached a place called Kaithapoyil where PW4, a colleague of the deceased had seen the deceased along with accused 2 to 4 at about 6 p.m. iii) They reached the house of PW8 after dusk on 15/10/1995. iv) 1st accused left the house of PW8 along with accused 2 to 4 in that jeep from the house of PW8 immediately thereafter. v) The accused, along with some others, had reached the official quarters of PW8 at Kakkayam at about 9 p.m on 15/10/1995 where CW10, son of PW8 was residing. There PW10 had seen the appellant. vi) They proceeded from Kakkayam immediately thereafter. vii) PW19, a person who resides near the Koodathai bridge had heard the sound of some heavy object being dropped into the Koodathai river and a vehicle speeding Crl.Appeal No.922/06 11 away towards Thamarassery at about 10.30 p.m on 15/10/1995. viii) The body of the deceased was found in the Koodathai river near Koodathai bridge on the morning on 16/10/1995. ix) The deceased had died of smothering and ligature strangulation at sometime between 10 a.m and 10 p.m on 15/10/1995. Such ligature strangulation could have been caused with a towel like MO5. x) Accused 1, 3 and 4, with the jeep, reached Thopramkudy before dawn on 16/10/1995. xi) 1st accused made attempts to dispose of the jeep on 16/10/1995. xii) 1st accused got paint and brush purchased through his son and painted MO10 number plate of the jeep black to hide the registration number i.e. KL-12- 5879. xiii) Suspicions were generated in the locality; PW28 informed the Murikkassery police and the police took the jeep to the police station on the night of 16/10/1995. Crl.Appeal No.922/06 12 xiv) 1st accused was asked to produce the records of the vehicle and Ext.P36 was issued to him by the police. xv) The engine number and chasis number of the missing jeep tallied with the jeep which was taken by the appellant along with accused 2 and 4 to Thopramkudy. xvi) Accused 1,2 and 4 were arrested on 21/10/1995. xvii) Their interrogation led to the accused persons making confession statements. MO5 was recovered on the basis of the confession statement of the appellant herein under Ext.P33 by PW54. Mos 1 and 2 were recovered on the basis of the confession statement of the 4th accused as per Ext.P24 recovery mahazer. 9. The court below, on an anxious consideration of all the circumstances, came to the conclusion that the complicity of the appellant has been proved satisfactorily. Accordingly, the court below proceeded to pass the impugned verdict of guilty, conviction and sentence. 10. Before us, the learned counsel for the appellant /1st accused Sri.Gracious Kuriakose and Sri.K.J.Mohammed Anzar, Crl.Appeal No.922/06 13 the learned Public Prosecutor advanced detailed arguments. While the learned Public Prosecutor contends that the case of the prosecution has been established beyond doubt on the basis of the clinching circumstances proved against the appellant, the learned counsel for the appellant contends that, at any rate, the appellant/accused is entitled to the benefit of doubt, if not an honourable acquittal. According to the learned counsel for the appellant, the circumstances relied on have not been proved satisfactorily and the circumstances do not and cannot lead the court to a safe inference of guilt against the appellant. 11. An appellate judgment is and has to be read as a continuation of the judgment of the trial court. In that view of the matter, it is not necessary for us to attempt re-narration of all the oral and documentary evidence relied on by the prosecution. The court below, in the impugned judgment, has adverted to all the relevant circumstances in detail. We do not hence propose to attempt to re-narrate the oral and documentary evidence and other relevant materials relied on by the rival contestants. Suffice it to say that we have been taken exhaustively through the oral evidence of PWs 1 to 54, Exts.P1 to Crl.Appeal No.922/06 14 P62, Exts.D1 to D10(a) and Ext.X1. We shall be adverting to the relevant materials as and when necessary in the course of our discussions. 12. It is unnecessary to advert to precedents. It is too trite and well settled now that in a prosecution where the prosecution relies on circumstantial evidence, the burden is heavy on the prosecution to establish all circumstances by cogent and acceptable evidence. Such circumstances must be strong links in themselves and the links together must form a strong chain which points unerringly to the guilt of the accused. Such chain of circumstances must effectively rule out any reasonable hypothesis of innocence of the accused. If there be any such reasonable doubt, the accused will undoubtedly be entitled to the benefit of such doubt. 13. We further note that accused 2 and 4 have already been found guilty, convicted and sentenced. Such verdict of guilty, conviction and sentence have now become final with the dismissal of the application for special leave by the Supreme Court. But even then, we remind ourselves that the case against the appellant must be proved and proved beyond doubt by the Crl.Appeal No.922/06 15 materials adduced in this case and the mere fact that the co- accused have already been found guilty, convicted and sentenced and such conviction and sentence have become final will not and should not influence us in any way while adjudicating the guilt of the appellant herein. 14. The learned counsel for the appellant submits that the appellant would like to urge his plea before this court that even if the entire circumstances were believed in toto, there are sufficient inadequacies in this case which will entitle him to the benefit of doubt. The learned counsel for the appellant contends that the indictment against the appellant is based only on suspicions and surmises. The learned counsel for the appellant contends that even if the entire evidence of circumstances were accepted, that cannot help the court to safely rule out the version of the accused. The learned counsel for the appellant argues that it may first be seen whether the appellant had any occasion at any time to meet and interact with the deceased as to place the blame for the death of the deceased at the doors of the appellant. Crl.Appeal No.922/06 16 15. We shall pointedly consider this aspect of the matter. To us, it appears to be crucially relevant that there is no allegation of any conspiracy between accused 1 to 4. The prosecution does not have such a case and that to us is crucially and vitally important. 16. The prosecution itself relied on certain pieces of evidences which suggests that the 2nd accused is a dealer in vehicles. The evidence of PWs 18, 21 and 33 as also Exts.P28 and P29 point satisfactorily to the truth of the assertion of the appellant that the 2nd accused was a dealer in vehicles. We have also satisfactory evidence adduced by the prosecution that accused 2 and 4 had gone to the house of PW8 in an attempt to meet the appellant herein. This is in tandem with the version of the appellant that he had agreed to help the 2nd accused in the disposal of his vehicle and that he can be met by the 2nd accused in the house of PW8 on that evening. These pieces of evidence broadly supports that version advanced by the defence. The learned counsel for the appellant heavily relies on the circumstance that the prosecution has not been able to adduce any evidence to indicate that he had met the deceased on that Crl.Appeal No.922/06 17 evening. The learned counsel for the appellant argues that either at the house of PW8 or thereafter, at any point of time, no witnesses have been traced by the prosecution who had seen the deceased alive in the company of the appellant/1st accused. The learned counsel for the appellant builds up an argument that, in these circumstances, the prosecution evidence cannot rule out the possibility of the deceased having been murdered and his body having been disposed by accused 2 to 4 before they came with the jeep to the house of PW8 to meet the 1st accused. In this context the learned counsel for the appellant relies on the circumstance that he had told PW8 that some persons will be coming with a jeep and he shall be proceeding to Thopramkudy in the jeep with them to attempt disposal of the jeep. These open and honest assertions must suggest to the court that the appellant/1st accused had no inkling of the crime committed by accused 2 to 4 prior to their arrival with the jeep at the house of PW8. The learned counsel for the appellant has meticulously taken us through all the relevant pieces of evidence to highlight this contention that the evidence is totally absent to establish the presence of the appellant along with the deceased at any point of Crl.Appeal No.922/06 18 time. Elaborating this contention, the learned counsel for the appellant points out that the engagement of the vehicle of the deceased at Ambalavayal was at about 4.30 p.m on 15/10/1995. At Kaithapoyil, PW4 saw the deceased in the company of accused 2 to 4 at about 6 p.m. Working out distances, the learned counsel for the appellant argues that from Kaithapoyil to the house of PW8, it was easy for the deceased and accused 2 to 4 to reach within a short time after 6 p.m. In this context, the learned counsel for the appellant argues that the court must attempt to identify the approximate time at which accused 2 to 4 had reached the house of PW8. The greater the gap of time, the greater the possibility of accused 2 to 4 having committed the crime of murder and disposal of the dead body before they reached the house of PW8, points out the learned counsel for the appellant. 17. We have the evidence of PW8 on this aspect. According to him, the 1st accused had reached the house of PW8 at about 5.30 p.m. The appellant went out of the house to take his bath. We have the evidence of PW36 that at about 6.30 to 7 p.m the appellant had gone to the shop of PW36 to purchase Crl.Appeal No.922/06 19 cigarettes. We have the evidence of PW8 that he sat for his daily prayers at about 6.30 to 6.45 p.m. While he had sat for such prayers, the 1st accused had returned - evidently after the purchase of cigarettes from the shop of PW36. We do not have evidence about the precise time at which accused 2 to 4 reached the house of PW8. We have only the statement of PW8 that they came only after his prayers were concluded. When accused 2 to 4 reached there, it was dark. They had to light their matches to find their way to the house of PW8. Thus the available indications suggest that accused 2 to 4 must have come to the house of PW8 after a gap of time from the time when PW4 must have seen them at Kaithapoyil at about 6 p.m. It is the case of the appellant that accused 2 to 4 came to the house of PW8 long later and it had become very dark by then. We need only mention that we have no inputs to identify the precise time at which they (i.e. accused 2 to 4) reached the house of PW8. At the house of PW8, we have no evidence whatsoever to suggest that the deceased was available with accused 2 to 4. 18. Thereafter, it is alleged that accused 1 to 4, along with the deceased, proceeded towards Kakkayam. CW10 was not Crl.Appeal No.922/06 20 examined. The learned counsel for the appellant argues that this theory of accused 1 to 4 proceeding to Kakkayam to call on CW10, to afford an opportunity to PW10 to see the appellant is most artificial and unacceptable. If, as a matter of fact, they wanted to do away with the deceased, it is extremely unnatural and artificial - nay improbable and impossible that they would have gone to the house of CW10 before murdering the deceased. There was no earthly purposes for which they should have undertaken a trip to Kakkayam - particularly to the house of PW10 if the version of the prosecution were true, argues the learned counsel for the appellant. The learned counsel for the appellant further points out that even if the evidence of PW10 were accepted in