IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.Rev.Pet.No. 3906 of 2009() -------------------------------------------- CRA.47/2009 of VI ADDL. DIST. & SESSIONS COURT, ERNAKULAM CC.513/1995 of CHIEF JUDL.MAGISTRATE COURT, ERNAKULAM .................... REVN. PETITIONER/WIFE OF THE DEFACTO COMPLAINANT --------------------------------------------------------------------------------------- U. NALINI MADHAVAN, W/O.LATE MANIYERI MADHAVAN, 'JYOTHIS', FORT ROAD, KANNUR - 1. BY ADV. SRI.BABU S. NAIR, SRI.RAJESH VIJAYAN, SMT.M.T.SHEEBA, SRI.P.A.RAJESH, SRI.K.RAKESH, SMT.VRINDA PAUL. RESPONDENTS/STATE & APPELLANTS/ACCUSED -------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE INSPECTOR OF CENTRAL BUREAU OF INVESTIGATION, S.P.E/C.B.I., COCHIN - THROUGH THE PUBLIC PROSECUTOR, C.B.I., HIGH COURT OF KERALA, ERNAKULAM, COCHIN. 2. K.G. PREMSANKAR, S/O.GOVINDAN, THEN SUPERINTENDENT OF POLICE, KANNUR, KANNUR DISTRICT. 3. K. ABDUL GAFOOR, S/O.HAJI P.V. KUNHAHAMMED, THEN S.I. OF POLICE, KANNUR TOWN POLICE STATION, KANNUR. 4. P. JAYARAJ, S/O.SUNDARAN NAIR, THEN CIRCLE INSPECTOR OF POLICE, KANNUR TOWN POLICE STATION, KANNUR. Crl.Rev.Pet.No. 3906 of 2009 5. R.V. KUNHIRAMAN, S/O.KUNHIRAMA PISHARADY, THEN S.I. OF POLICE, MATTANNUR POLICE STATION, KANNUR DISTRICT. R1 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. R2 BY ADV. SRI.C.K.SREEDHARAN. R3 BY ADV. SRI.SUNNY MATHEW. R5 BY ADV. SRI.K.GOPALAKRISHNA KURUP. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/09/2010,ALONG WITH CRRP NO. 2924 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.Nos. 2924 & 3906 of 2009 --------------------------------------------- Dated this the 16th day of September, 2010 O R D E R The impugned judgment in both the revision petitions is one and the same, i.e., dated 13.7.2009 in Crl.A.No.47 of 2009 of the Court of District and Sessions Judge, Ernakulam which was filed challenging the judgment dated 31.12.2008 in C.C.No.513 of 1995 of the Court of the Chief Judicial Magistrate, Ernakulam. Though the prayers in these two Criminal Revision Petitions are different, as the same are arising out of the same judgment and the question of facts and law are identical, both the cases are heard together and being disposed of by this common order. 2. Crl.R.P.No.2924 of 2009 is preferred by accused Nos.2 and 3, who are appellant Nos. 2 and 3 in the appellate court. Crl.R.P.No.3906 of 2009 is preferred by one Nalini Madhavan who is the wife of the deceased de facto complainant (CW1) challenging the acquittal of accused Nos.1 and 7 and challenging the sentence imposed against accused Nos.2 and 3, since, according to her, the same is inadequate. 3. The present revision petitions are arising out of the above appellate court judgment, which arose out of judgment dated Crl.R.PNos 2924 & 3906 of 2009 :-2-: 31.12.2008 in C.C.No.513 of 1995 of the Chief Judicial Magistrate Court, Ernakulam. In the Chief Judicial Magistrate Court, Ernakulam, though altogether 12 accused have faced the trial for the offences punishable under Section 120B read with Sections 323,342,357,427,465 and 201 I.P.C. and Sections 323, 342,357,427,465 and 201 I.P.C. and accused Nos.4 to 6 and 8 to 12 were acquitted of all the charges levelled against them. Accused Nos.1,2,3 and 7 were also acquitted with respect to the offences under Sections 465 and 201 of I.P.C. Thus, the trial court has found that accused Nos.1,2,3 and 7 are guilty of the offences under Sections 120B, 323,342,357 and 427 I.P.C. On such conviction, accused Nos.1,2,3 and 7 were sentenced to undergo simple imprisonment for a period of one month for offence under Section 120B, three months simple imprisonment each for the offences under Sections 323, 342 and 357 of I.P.C., and six months for the offence under Section 427 I.P.C.. It was also ordered that the period of imprisonment should run concurrently. The trial court, after quantifying the damages, directed accused Nos.1,2,3 and 7 to pay a compensation of Rs.25,000/- each to the legal heirs of CW1 under Section 357(3) of the Cr.P.C., in default to undergo simple Crl.R.PNos 2924 & 3906 of 2009 :-3-: imprisonment for a further period of one month. 4. It is the above conviction and sentence of accused Nos.1,2,3 and 7, challenged in Crl.A.No.47 of 2009 before the appellate court. No appeal is preferred against the acquittal of accused Nos.4 to 6 and 8 to 12 and also against the acquittal of accused Nos.1,2,3 and 7 for the offence under Sections 465 and 201 I.P.C. either by the prosecution agency or any of the charge witnesses or revision petitioner in Crl.R.P.No.3906 of 2009, wife of CW1. 5. Thus, while disposing the appeal preferred by the accused by the impugned judgment, the lower appellate court acquitted accused Nos.1 and 7 of all the charges for which they are found guilty by the trial court and partly allowed the appeal preferred by accused Nos.2 and 3, by setting aside their conviction and sentence under Sections 120B, 323 and 357 of I.P.C., but confirming their conviction under Sections 342 and 427 I.P.C. and in modification of the sentence ordered by the trial court, the lower appellate court directed them to suffer simple imprisonment till the rising of the court under Sections 342 and 427 of I.P.C. and each of them is ordered to pay Rs.25,000/- being the compensation under Section Crl.R.PNos 2924 & 3906 of 2009 :-4-: 357(3) of the Cr.P.C. and in default, they were directed to undergo simple imprisonment for a period of one month each. It was also ordered that on realisation of the amount, the same should be paid to the wife of CW1. Thus, in Crl.R.P.No.2924/2009, accused Nos.2 and 3 are challenging their conviction and sentence under Sections 342 and 427 I.P.C. and the order to pay compensation. 6. In this juncture, it is also relevant to note that against the conviction and sentence of accused Nos.2 and 3, though they have filed Crl.R.P.No.2924 of 2009, the prosecution agency has not chosen to file any appeal or revision against the acquittal recorded by the lower appellate court in favour of accused Nos.1 and 7 and also the acquittal of accused Nos.2 and 3 with respect to the offences under Sections 120B,323 and 357 of I.P.C. and also the said agency did not file any appeal or revision challenging the sentence imposed against accused Nos.2 and 3 on the ground of insufficiency. In fact, Crl.R.P.No. 3906 of 2009 is filed, challenging the acquittal of accused Nos.1 and 7 and the inadequacy of sentence imposed against accused Nos.2 and 3 by a private party viz., Nalini Madhavan, the wife of the de facto complainant, viz.,CW21. It is also pertinent to note that no appeal or revision is filed either by the Crl.R.PNos 2924 & 3906 of 2009 :-5-: prosecution agency or the wife of the de facto complainant, against the complete and clear acquittal of accused Nos.4 to 6 and 8 to 12. 7. C.C.No.513 of 1995 was instituted in the Chief Judicial Magistrate Court, Ernakulam on the basis of the charge sheet filed by the Inspector of Special Police Establishment, C.B.I., Kochi-17 in R.C.No.22(S)/92 for the offences punishable under Section 120B read with Sections 323,342,357,427,465 and 201 of I.P.C. against the accused persons, 12 in numbers. The case of the C.B.I., the prosecution agency, is that one Maniyeri Madhavan, who is the de facto complainant, was the Editor, Printer and Publisher of the evening daily by name 'Sudhinam' published from Kannur and during the year 1987-88, CW1, published a news item in his daily against accused No.1 viz., Sri.Prem Shanker,IPS, who was the District Superintendent of Police, Kannur at that time and according to the prosecution, the said news item annoyed the Police Officials especially, the first accused and they were awaiting for an opportunity to take revenge against CW1 and thus, when a news item was published in the 'Sudhinam' daily on 2.2.88 that an adhivasi minor girl hails from Thirunelli in Wyanad District was raped by one Rajan in his house where the girl was working as maid Crl.R.PNos 2924 & 3906 of 2009 :-6-: servant and on seeing the news item, the accused entered into a criminal conspiracy at Kannur some time in 1988 and agreed to do certain illegal act to voluntarily cause hurt and wrongful confinement of the said Maniyeri Madhavan and also to cause wrongful loss and damages to 'Sudhinam' office and Jyothi Printing Press of CW1 situated at Fort Road at Kannur. It is the specific allegation of the prosecution that pursuant to the said criminal conspiracy, the accused persons got prepared a complaint dated 5.2.1988, against CW1 in relation to the news item about an Adhivasi girl published in 'Sudhinam' evening daily on 2.2.88 and obtained the thumb impression of the illiterate girl and her illiterate parents on the complaint and the same was routed through the District Superintendent of Police, Wayanad, to the office of first accused at Kannur. 8. It is also alleged that in pursuance of the said criminal conspiracy and after filing the complaint in the office of the first accused, accused No.7 and certain other unidentifiable police personnel have arranged surveillance at the 'Sudhinam' Office Premises for collecting information about the movement of CW1 and timing of 'Sudhinam' office and 'Jyothy Printing Press'. The Crl.R.PNos 2924 & 3906 of 2009 :-7-: allegation continues that on 12.2.1988, accused Nos.1,2,3 and 7 and certain other unidentifiable Policemen assembled in the office of the first accused and discussed the modus operandi for materialising the criminal design, which is prepared during their criminal conspiracy and accordingly, the prosecution has alleged that at about 8 p.m. on 12.2.1988, accused Nos.2,4,5,6,9 and two other unidentifiable policemen reached in the office of 'Sudhinam' in a police jeep bearing Reg.No.KEV 9076 driven by accused No.8 and accompanied by a Contessa Car No.KRO 7777 of first accused which was driven by accused No.7 and on reaching the spot, accused Nos.7 and 8 remained in their respective vehicles and accused Nos.2,4,5,6 and 9 and other unidentifiable police men entered into 'Sudhinam' compound and picked up CW1 by using criminal force, without giving valid reason for taking him into custody and according to the prosecution, those accused stated to CW1 that first accused wanted him and then pulled and pushed him into the police jeep referred above and forcibly made him to sit in the back seat of the jeep in between the Policemen. It is also the case of the prosecution that the jeep was driven to Kannur Town Police Station through a longer circuitous route covering 9 Kms., avoiding 2 Kms. Crl.R.PNos 2924 & 3906 of 2009 :-8-: route and accused No.7 followed the jeep in the Contessa car of first accused. 9. It is also the case of the prosecution that on the way, accused Nos.2,4,5,6 and 9 voluntarily caused hurt to CW1. It is specifically alleged that the second accused repeatedly slapped on his left cheek and also punched on his right cheek. Against fourth accused, it is alleged that he punched on the abdomen of CW1 and hit with his elbow on his back forcibly keeping his head in between his knees and by pushing police lathy into his abdomen and accused Nos.5 and 6 forcibly suffocated him by closing his mouth and nose and the ninth accused hit on his head and side of abdomen. According to the prosecution, the jeep reached at the compound of Kannur Police Station at about 8.30 p.m. and thereafter, accused Nos.4 and 5 dragged CW1 out of the jeep and CW1 was confined in the Police lock up by accused Nos.2 and 3. 10. According to the prosecution, thereafter, accused Nos.1,2,3 and 7 entered into discussion and as a result of which Crime No.50 of 1988 against CW1 for the offences punishable under Section 228A I.P.C. and Section 7(1)(d) of the Protection of Civil Rights Act, 1955 (for short 'the PCR Act') was registered and the Crl.R.PNos 2924 & 3906 of 2009 :-9-: FIR was prepared showing that the crime was registered at 2.30 p.m. on 12.2.1988 against CW1. 11. The further case of the prosecution is that though the offences involved in the said crime, which are registered against CW1, though only bailable offences and though sufficient sureties were offered after meeting accused Nos.2 and 3 at the Kannur Town Police Station, they denied bail to CW1. It is also alleged that on the same day night, one Muneer, a Reporter Trainee of 'Sudhinam' daily was also taken into custody in the Kannur Town Police Station. 12. The prosecution allegation further continues stating that between 9 p.m. and 11 p.m. on 12.2.1988, the accused Nos.2,3,4,5,6 and 9 and other unidentifiable policemen went to the Sudhinam Office and committed mischief by kicking and breaking open the door of the 'Sudhinam' Office and Jyothi Press and dismantled and damaged the printing machinery under the guise of search and the machinery were destructed by hitting and smashing with heavy object and got its parts removed and also took away the files of correspondence and cash etc. from the office. It is also the case that third accused prepared search list by forging signature of CW1 and other witnesses purporting that search and seizure were made Crl.R.PNos 2924 & 3906 of 2009 :-10-: in the presence of CW1 and witnesses and thereafter the press was put under police control for two weeks as per the order of first accused. 13. According to the prosecution, CW1 and Sri.Muneer were produced before the residence of the Judicial First Class Magistrate, Kannur at about 4.30 a.m. on 13.2.1988 and the learned Magistrate released them on self bond. 14. Another allegation of the prosecution is that accused No.12, being the Head Constable of AR Camp, Kannur falsified the GD of A.R.Camp, Kannur dated 12.2.1988 by making false entries in the GD to show that on 12.2.1988 at 12.30 p.m., accused Nos.5 and 6 reported for duty and they were sent to Kannur Town Circle Inspector's Office at 2.45 p.m. According to the prosecution, accused No.12 forged page No.91 by adding the numbers 3046 and 3031 of accused Nos.5 and 6 to create a false claim that they had returned from Kannur Town Police Station at 7.40 p.m. on 2.12.1988 and also to show that they did not participate in the overt act as alleged, against CW1 and the mischief committed by them in the 'Sudhinam' office and Jyothi Press. It is also the case of the prosecution that accused Nos.10 and 11 forged certain documents, Crl.R.PNos 2924 & 3906 of 2009 :-11-: the G.D.of A.R.Camp dated 12.2.1988 by removing page number 92 of the said diary and replacing a fresh page having the same number of another diary and made entries to make it appear that the altered page number of 92 was written in the normal course of business, with an intention to support false claim of accused Nos.5 and 6 and they were sent to Kannur Police Station to report before the C.I. of Kannur at 9 p.m. on 12.2.1988 and they were not available for committing the offences as alleged against them. According to the prosecution, accused Nos.10,11 and 12 made such falsification of G.D. and forged the document with an intention to screen accused Nos.5 and 6 from legal punishment. 15. It is also alleged that second accused caused to tamper the vehicle dairy of Police Jeep No.KEV 9076 dated 12.2.1988 and 13.2.1988 by making the driver of jeep Sri.Bhaskaran to alter the entries in the vehicle diary to show that the vehicle was not used in connection with Crime No.50/88 of the Kannur Town Police Station on 12.2.1988 and the altered entries on 12.2.1988 were got attested by the Driver Police Constable Sri.Bhaskaran, that was under the instruction of second accused. Thus, according to the prosecution, all the accused acted in pursuance of the criminal conspiracy Crl.R.PNos 2924 & 3906 of 2009 :-12-: hatched against CW1 and therefore, all of them are guilty of the offences alleged by the C.B.I. in the charge laid by them. 16. The further allegation of the prosecution is that after release of CW1 at 4.30 a.m. on 13.2.1988, he went to the District Government Hospital, Kannur and got admitted there. Consequently, an intimation was sent to the Kannur Town Police Station pursuant to which the Head Constable attached to the said Police Station went to the hospital and recorded the statement of CW1, on the basis of which Crime No.52 of 1988 was registered in the Kannur Town Police station and since CW1 was not satisfied with the investigation, he approached the High Court and as per the orders of this Court in Crl.M.C.No.328 of 1988, the investigation was entrusted with the D.I.G.of Police, Northern Range of Kerala. Again, dissatisfied with the above order of this Court, the de facto complainant approached the Honourable Apex Court with Special Leave Petition(Crl) No.2755 of 1988. Accordingly, the Honourable Apex Court directed CW1 to file a fresh complaint before the D.I.G. of Central Range of Kerala, who in turn was directed to register a case on the basis of such fresh complaint of CW1. According to the prosecution, thus CW1 has filed a fresh complaint which was routed Crl.R.PNos 2924 & 3906 of 2009 :-13-: to the Kannur Town Police Station through S.P., Idukki for registering a crime and in response, Cr.151/90 of Kannur Town Police Station was registered and investigated by a Special Team constituted by the D.I.G., Central Range of Kerala. According to the C.B.I., CW1 again approached the Honourable Supreme Court and the Apex Court has issued a direction, vide order dated 24.9.1992 in Crl.M.P.Nos. 3378/1991 and 4476/1991 in SLP No.2755/1988 to hand over the investigation of Crime No.151/1990 of Kannur Town Police Station to C.B.I. based upon which the Government of Kerala issued orders handing over the investigation in Crime No.151/1990 of the Kannur Town Police Station to C.B.I., pursuant to which, and on receiving the file from the Kerala Police, C.B.I. has registered RC No.22(S)/92 and after investigation and on obtaining sanction from the appropriate Government to prosecute first accused, who is an I.P.S. Officer, and also sanction for prosecution of accused Nos.2 to 12 who were working in the Kerala Police at that time, preferred the Report containing the above charge. 17. In pursuance of the process, when the accused appeared in the trial court, the particulars of the charge were read over and explained to the accused and they denied the charge and pleaded Crl.R.PNos 2924 & 3906 of 2009 :-14-: not guilty consequent to which the trial was further proceeded and the prosecution adduced its evidence consisting of the oral evidence of PWs.1 to 46 and the documentary evidence such as Exts.P1 to P47. Besides the above, a shirt was produced, which was claimed to have identified and marked as MO1. During the examination of prosecution witnesses, Exts. D1 to D12 were got marked from the side of the defence. The incriminating circumstances and the evidence, which emerged out of the prosecution evidence were put to the accused and they denied the same. 18. The accused took a specific plea that the present case is registered to counterblast Crime No.50 of 1988 of Kannur Town Police Station and according to the defence, in pursuance of the registration of Crime No.50/1988, CW1 was arrested legally by the third accused and towards the investigation, the third accused himself conducted the search of 'Sudhinam' Office in accordance with the procedure recognised by law. According to the defence, on the arrest of CW1, he was produced before the jurisdictional Magistrate within 24 hours. According to the defence, aggrieved by the legal arrest, CW1 made false allegations against the Police including the first accused and the in-laws and relatives of the first Crl.R.PNos 2924 & 3906 of 2009 :-15-: accused, who are inimical to first accused, supported CW1 to launch a false prosecution against the first accused and other accused. The defence has also taken a contention that connected with the same allegation and subject matter, CW1 and his henchmen filed different civil suits before the Munsiff's Court, Kannur and Sub Court at Thalassery for various reliefs against the accused and those suits were dismissed. From the side of the defence, DW1 was examined and in addition to Exts.D1 to D12, Exts.D13 to D16 were produced and marked. 19. On the basis of the evidence, materials and the rival pleadings, the trial court formulated ten points for its consideration. The trial court has observed that out of the 96 prosecution witnesses cited as charge witnesses, CW1 the de facto complainant had expired during the pendency of the case and he could not be examined by the prosecution. Thus, the trial court, finally, found that accused Nos.4 to 6 and 8 to 12 are not at all guilty and all of them were acquitted and accused Nos.1 to 3 and 7 were found guilty for the offences mentioned earlier and accordingly, they were convicted and sentenced. 20. I have carefully gone through the elaborate judgment of Crl.R.PNos 2924 & 3906 of 2009 :-16-: the trial court. In paragraphs 2 and 3, the trial court has elaborately stated the prosecution case and the various legal and procedural development that occurred from the date of the alleged incident and as to how the Central Bureau of Investigation, the central agency undertook the investigation and filed the final report. In paragraphs 4 to 6, the trial court has elaborately stated the procedure adopted on the appearance of the accused and the various stages of the trial including the prosecution evidence, defence evidence and the points formulated for the determination of the trial court and the schedule of the witnesses examined. Paragraphs 7 to 69 are the memorandum of evidence of prosecution witnesses and each paragraph contains the oral evidence of each of the prosecution witnesses. Paragraphs 70 to 81 give the details of the defence taken by each of the accused. Paragraph 82 contains the evidence of DW1. Paragraphs 83 and 84 contain the discussion of evidence and witnesses in the light of the arguments advanced from both sides. In paragraphs 85 and 86, the trial court recited the versions of the defence. 21. Thus, starting from paragraph 87 onwards and through discussion contained therein, the trial court arrived at its Crl.R.PNos 2924 & 3906 of 2009 :-17-: conclusion regarding the controversial issues. Accordingly, the trial court has found that the raped victim girl, namely, Manja and her father, who have given Ext.P11 series of consent letters on 3.2.1988, are unlikely to make Ext.P12 complaint on 5.2.1988. The trial court has held that the argument of the counsel for first accused that Ext.P11 series might have been obtained sensing police action, is unsustainable since Crime No.50 of 1988 was registered and Ext.P41 FIR was prepared on 12.2.1988. Thus, according to the court, there was no chance for sensing police action for obtaining Ext.P11 series by the Correspondent of Mathrubhumi Daily. Further, in paragraph 88, the trial court has concluded that the contention of the defence that the prosecution has avoided the marking of Sudhinam daily purposefully, cannot be sustained. In order to come into such a conclusion, the trial court has held that the daily dated 2.2.1988 was not available in the Sudhinam Office and the Press whereas the available copy was already taken into custody by third accused at the time of search. The trial court also came to a conclusion that it is for the accused to produce the Sudhinam daily dated 2.2.1988 and mark it so as to justify the action taken by them on the basis of the offensive Crl.R.PNos 2924 & 3906 of 2009 :-18-: publication made by CW1. So, according to the trial court, the non- production of Sudhinam daily dated 2.2.1988 by the prosecution has no effect and the burden to produce the daily is shifted to the defence. Through the discussion in paragraph 89, the trial court has concluded that at no stretch of imagination, a publication similar to Ext.P10(a) in Sudhinam Daily dated 2.2.1988 is liable to attract Section 7(1)(d) of the P.C.R.Act. It is also the opinion of the trial court that Ext.P12 complaint was manipulated by