IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 CRL.A.No. 2485 of 2009() ------------------------ SC.897/2005 of II ADDL.SESSIONS COURT, KOLLAM .................... APPELLANTS : ACCUSED NOS.1 & 3 ------------------------------- 1. RAJAGOPAL, S/O. ARJUNAN NAIR, SREEMANGALAM, KUTHIRACHIRA, COLLEGE WARD, PUNALUR. 2. SURESHKUMAR, S/O. SUDHAKARAN, MALU BHAVAN, PAKIDIYIL, COLLEGE WARD, PUNALUR VILLAGE. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SMT.DHANYA P.ASHOKAN SRI.S.RAJEEV RESPONDENTS : COMPLAINANT -------------------------- STATE OF KERALA, (CIRCLE INSPECTOR OF POLICE, PUNALUR), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2010, ALONG WITH CRRP NO. 3971 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 ***************************** Dated this the 9th day of April, 2010 JUDGMENT BASANT, J. This, alas, is yet another case where the ugly and shameful spectacle of hostility of the prosecution witnesses with impunity clouds the truth discovery process by courts by procedure established by law. It also brings to light the need to boldly and innovatively look at the efficacy of the ruler of the complicated process of truth discovery in our criminal justice system. 2. Is there a semblance of legal evidence to support the allegations against the appellants? Are not the appellants entitled atleast to the benefit of doubt? Did the court below, shocked and dissatisfied with the parade of hostile witnesses before it, commit the indiscretion of not insisting on and ignoring the core mandate of human right jurisprudence that deprivation of life and liberty can be only on the basis of satisfactory proof of culpability? 3. These questions are raised by the learned counsel for the appellants Sri.M.K.Damodaran in this case. Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 2 4. Appellants are two of the seven accused, who faced indictment for offences punishable under Section 3 of the Explosive Substances Act and Sections 120B, 143, 147, 148, 324, 326 and 302 read with 149 I.P.C. All the others, except the appellants (accused 1 and 3) were found not guilty and acquitted of all the charges levelled against them. The appellants herein - that is accused 1 and 3, have been found guilty, convicted and sentenced under Section 3 of the Explosive Substances Act and Sections 324, 326 and 302 I.P.C. For the offence under Section 302 I.P.C, a sentence of imprisonment for life and a fine of Rs.25,000/- has been imposed on both appellants. For the offence under Section 3 of the Explosive Substances Act also, a sentence of imprisonment for life and a fine of Rs.25,000/- have been imposed on both the appellants. For the offences punishable under Sections 324 and 326 I.P.C, sentences of R.I for a period of two years and four years have been imposed on both the appellants. A sentence of fine of Rs.10,000/- also has been imposed on both the appellants under Section 326 I.P.C. No default sentence is seen imposed. 5. Appellants (accused 1 and 3) assail the verdict of guilty, conviction and sentence imposed on them in Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 3 Crl.A.No.2485/09. In Crl.R.P.No.3971/09, the revision petitioner, that is the mother of the deceased, assails the acquittal of all the other five accused. 6. The crux of the allegations against the seven accused persons is that they, on account of political rivalry, had hatched a criminal conspiracy for committing murder of deceased Rajesh. The deceased belonged to the BJP and all the indictees allegedly owe allegiance to the C.P.M. An earlier incident which occurred on 13/3/2002 in which the 3rd accused had suffered serious injuries also allegedly acted as a motive for the incident in this case. On 09/06/2002 at about 8.10 p.m on the public road near the shop of PWs 6/7, all the indictees, in pursuance of the criminal conspiracy hatched by them earlier, allegedly came to the scene of occurrence in a car KEK 2430. The miscreants allegedly reached the scene after coming to know that deceased Rajesh was available there. It was load shedding time and after reaching the spot of occurrence, the 2nd accused is alleged to have thrown a country bomb at deceased Rajesh, who, along with PWs 2 and 3, were sitting on the parapet of a culvert nearby. The deceased, PW 2 and PW 3, who were present there, allegedly suffered injuries as a result of the blast. The deceased Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 4 succumbed to his injuries. PW2 suffered simple injuries whereas PW3 suffered grievous injuries. The deceased succumbed to the injuries at 12.30 a.m on the same night. The prosecution alleged that the accused had, thereby committed the offences referred above. 7. Investigation commenced with Ext.P1 F.I.Statement lodged by PW1 before PW29 at 12.45 a.m on 10/06/2002. That statement was allegedly recorded at the hospital. F.I.R Ext.P1(a) was registered at 3.15 a.m on 10/06/2002. The F.I.R reached the court at 10.20 a.m on 11/06/2002. In the F.I.R, accused 1 to 3 were named. Another person by name Jose was also named in the F.I.Statement; but subsequently he was deleted from the array of accused. 8. Investigation was completed and final report was filed by PW32 raising allegations against accused 1 to 7. The learned Magistrate committed the case to the court of Session in accordance with law. All the accused denied the charges framed against them and thereupon the prosecution examined Pws.1 to 36. Exts.P1 to P43 were marked before the trial court. M.Os 1 to 19(a) were also marked. Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 5 9. The accused took up a defence of total denial. According to them, they were not, in any way, involved in the incident in which the deceased, PWs.2 and 3 suffered injuries. Dws.1 to 7 were examined and Exts.D1 to D8 were marked on the side of the defence. We may mention that the 1st accused/1st appellant herein examined himself as DW7 whereas the 3rd accused/2nd appellant herein examined himself as DW6. We repeat that their case was one of total denial. It was suggested that political animosity has led to their false implication in this case. 10. An appellate judgment is and must be read as a continuation of the judgment of the trial court. The court below has adverted in detail to all the oral and documentary evidence and other matters placed before it. We have been taken through the oral and documentary evidence and all other matters relied on by the rival contestants in this appeal. We do not, in these circumstances, think it necessary to re-narrate the oral and documentary evidence relied on by the prosecution originally and the evidence, which it was ultimately able to place before court. Suffice it to say that, the learned counsel for the appellant has taken us meticulously through the oral evidence of PWs.1 to Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 6 36 and DWs.1 to 7 as also Exts.P1 to P43 and Exts.D1 to D8. We have also been taken through the final report submitted by the police, charges framed by the court below and the answers given by the accused in the course of examination under Section 313 Cr.P.C. We shall advert to the oral and documentary evidence specifically wherever necessary in the course of the discussions in this judgment. 11. Before us, the learned senior counsel for the appellants in Crl.A.No.2485/09 Sri.M.K.Damodaran, the learned Public Prosecutor Sri.Noble Mathew and Sri.S.Rajeev, the learned counsel for the revision petitioner in Crl.R.P.No.3971/2009 have advanced detailed arguments. 12. We may, at the first instance, note that the learned counsel for the revision petitioner Sri.S.Rajeev has not seriously advanced any arguments against the acquittal of accused 2 and 4 to 7. The learned counsel evidently made use of the opportunity available to him to argue Crl.R.P No.3971/2009 only to support the conviction of accused 1 and 3. We do not, in these circumstances, think it necessary to advert to the purported challenge against the acquittal of accused 2 and 4 to 7. After having gone through the records in detail, we find that the stand Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 7 taken by the learned counsel for the revision petitioner is an informed and sublime one and there is no argument worth the name against the acquittal of accused 2 and 4 to 7. We may, hence, at this stage itself turn down the challenge against the acquittal of accused 2 and 4 to 7. 13. The prosecution in this case wanted to rely on ocular testimony to prove the incident. But the prosecution could not enlist the support of the witnesses through whom they attempted to prove the incident proper. Pws.2 and 3 are witnesses who had suffered injuries in the incident along with the deceased. Pws.1 and 4 to 7 are witnesses who had allegedly witnessed the occurrence. PW1 had lodged Ext.P1 F.I.statement also. All of them, including the injured witnesses Pws.2 and 3 turned hostile to the prosecution with absolute impunity. PW1, though he admitted his signature in Ext.P1 F.I.statement, did not choose to subscribe to the contents of Ext.P1 F.I.statement. Thus, the prosecution was left with not a semblance of ocular testimony in support of the charges levelled against the accused. 14. Before the court below and before us, the Prosecutors contended that though the prosecution had not succeeded in making any ocular evidence to incriminate any of the indictees, Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 8 the evidence that has been let in of circumstances is sufficient to persuade a court to come to a safe conclusion beyond doubt about the complicity of the appellants herein. Thus, though the prosecution originally wanted to prove its case by direct ocular testimony, after the hostility of witnesses, this case now rests solely on circumstantial evidence. We will only have to consider whether the verdict of guilty and conviction entered by the court below against the appellants is justified by the pieces of circumstantial evidence which the prosecution has succeeded in adducing. 15. It is too trite and is hence not necessary to refer to any precedents; but we may state that it is well settled that in a case resting on circumstantial evidence, the burden is heavy on the prosecution to prove all circumstances satisfactorily. Such circumstances proved must form links of a chain. The links must be strong in themselves and together they must make a strong chain which can point unerringly to the guilt of the accused. Such chain of circumstances must effectively rule out any hypothesis of innocence of the accused. We will now have to consider whether the circumstances have been proved and the circumstances, if held to be proved, is sufficient to come to a safe Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 9 inference of guilt against the appellants. 16. We may hasten to observe that it is not the number of circumstances that matter; but the safe inferences which flow from proved circumstances that are of crucial relevance. Each circumstance may be capable of several interpretations; but what the court is to ultimately decide is whether the chain which is formed by the links would be sufficient to exclude any reasonable hypothesis of innocence of the accused. 17. We called upon the learned Public Prosecutor and the learned counsel for the revision petitioner Sri.S.Rajeev to narrate before us the circumstances on which the prosecution wants to rely. In fact, we must mention that the learned counsel for the appellants had pressed hard for a suspension of the sentence pending disposal of the appeal. We went on to hear the learned counsel for the appellants and the learned Public Prosecutor for that purpose. We then realised that optimum use of judicial time can be achieved by disposing of the appeal itself rather than go through the entire gamut of evidence to decide the question of suspension of sentence. It is, in these circumstances, that this appeal, fairly recent going by chronology, is taken up for hearing and disposal at this juncture. Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 10 18. The learned Public Prosecutor and the learned counsel for the revision petitioner submit that the following circumstances have been established satisfactorily by the prosecution and the cumulative effect of these circumstances must lead the court to a safe conclusion of the culpability of the appellants. The impugned verdict of guilty, conviction and sentence against the appellants hence deserve to be upheld, contend the learned Public Prosecutor and the learned counsel for the revision petitioner. 19. The circumstances relied on by the prosecution are: i) Political animosity between the appellants and the victim. Aggravation of that animosity on the basis of the incident which took place on 30/03/2002 in which the 3rd accused had suffered serious injuries. ii) The deceased, PWs 2 and 3 suffered injuries in a bomb explosion that took place at the scene of the crime at about 8.10 p.m on 09/06/2002. iii) The death of the deceased took place on account of such injuries suffered in such bomb explosion. iv) Ext.P1 F.I.statement was lodged by PW1 before PW29. On the basis of the said F.I.statement Ext.P1(a). F.I.R Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 11 was registered showing the names of accused 1 to 3 as accused responsible for the commission of the crime. v) A Car - white Ambassador KEK 2430, was given to accused 1 and 3 by PW27 prior to the incident and that car was found abandoned at a place about 8 Kms away on 13/06/2002 and the same was seized by the police under Ext.P20 on that day. vi) Accused 1 and 2 were arrested on 23/6/2002. On the basis of Ext.P28(a) confession allegedly given by the 1st accused to PW35, MOs.12,13 and 14 were recovered by PW35 under Ext.P28 search list. vii) PW26 Scientific Assistant subsequently examined Ext.P28 house and recovered Mos.15 and 16 from the said house. From the scene the forensic expert had later obtained M.O.11 which was handed over to the Investigating Officer PW35. viii) From the scene of the crime under Ext.P23 scene mahazer PW35 had taken into custody MOs.3 to 8. ix) MOs.12 to 16 were recovered from the house described in Ext.P28 and MOs.3 to 8 were found to contain identical articles by the expert on chemical examination. Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 12 20. We shall now proceed to consider whether these circumstances have been proved and the circumstances, if any proved, can justify the verdict of guilty, conviction and sentence imposed on the appellants herein. 21. The first circumstance relied on is the circumstance that the accused persons belong to the C.P.M and the deceased belonged to the B.J.P. They further rely on the aggravation of this motive by the incident which took place earlier on 13/3/2002 (Sivarathri day) in which the 3rd accused suffered injuries. The deceased, PW1 and another were accused in that crime allegedly committed against the 3rd accused. We deem it unnecessary to delve deeper into the evidence on this question. There is no serious dispute that there is strain between the parties on account of political animosity. The precise stand of the defence is that it is political animosity that prompts the witnesses to make false allegations against the accused. Of course, the 3rd accused, in his evidence, has denied that he subscribes to the political ideology of C.P.I (M); but the fact remains that there is ample material to indicate that there was strain in the relationship between the appellants herein and the deceased on account of political rivalry. We reckon this circumstance as Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 13 proved satisfactorily by the prosecution. 22. The second circumstance relied on by the prosecution is that the deceased, PW 2 and PW 3 had suffered injuries in a bomb explosion that took place at the scene of the crime at about 8.10 p.m. Here also, we find ample evidence coming forth from the mouth of PW.s 2 and 3 that such an incident had taken place and that all the three had suffered injuries as a result of bomb explosion which took place at the scene. We have also satisfactory evidence from the doctors Pws.23, 24, 25 and PW33, who had examined all the three injured, treated PWs.2 and 3 and conducted the postmortem examination on the body of the deceased. There are telltale indications to show that all the three had suffered injuries in such an incident which allegedly took place at about the time and place as alleged by the prosecution. The accused do not also dispute this fact. The 2nd circumstance is also thus held to be proved satisfactorily. 23. On the 3rd circumstance also, we find no serious dispute. The deceased had suffered telltale injuries which suggest that the injuries having been caused in a bomb explosion. We have the evidence of PW33 doctor and Ext.P19 postmortem certificate issued by him which, beyond the pale of Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 14 controversy, establish the fact that the deceased had succumbed to the injuries which he suffered along with PWs 2 and 3 at the scene of the crime in a bomb explosion. The 3rd circumstance is also established satisfactorily. 24. The 4th circumstance relied on by the prosecution is the fact that Ext.P1(a) F.I.R was registered on the basis of Ext.P1 F.I.Statement lodged by PW1 before PW29 at 3.15 a.m on 10/06/2002. The F.I Statement was lodged at 12.45 a.m on 10/06/2002. The F.I.R had reached the court only at 10.20 a.m on 11/6/2002. The calender was verified and it is seen that 10/06/2002 was a working day for the courts. 25. PW1 turned hostile to the prosecution completely. He did admit his signature in Ext.P1. But, significantly, he did not subscribe to even one incriminating circumstance referred to in Ext.P1. He did not implicate accused 1 to 3 or any other. There is no substantive evidence of the contents of Ext.P1. PW1 having not supported the contents of Ext.P1, the contents of Ext.P1 cannot be made use of for any purpose except to discredit PW1. Of course, we agree with the learned Public Prosecutor that Ext.P1 can be relied upon for the limited purpose of concluding that Ext.P1(a) F.I.R was registered by PW29 on the basis of Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 15 Ext.P1. To that extent alone, Ext.P1 can have relevance in this case. The court below also appears to have taken note of the contents of Ext.P1. It is too late in the day for the prosecution to attempt to place reliance on any portion of the contents of Ext.P1, on which substantive evidence has not been tendered by PW1. In this view of the matter, we are of the opinion that though lodging of Ext.P1 by PW1 before PW29 and registration of Ext.P1(a) on the basis of Ext.P1 can be held to be proved, the contents of Ext.P1 cannot be made use of for any purpose in the adjudication of the guilt against the appellants, there being no substantive evidence on that aspect. 26. In the view which we have taken about Ext.P1, we feel it is unnecessary to delve deeper into the other controversies relating to Exts.P1 and P1(a). PW1 does not now stand by the assertions in Ext.P1 and Ext.P1(a) that the F.I.statement was lodged at the time shown in Ext.P1 and P1(a). The learned counsel for the appellants have strained to take us through the oral evidence of PW29 to contend that even the evidence of PW29 cannot help the court to attach any importance or relevance to the time mentioned in Exts.P1 and P1(a). The learned counsel for the appellants also points out, relying upon Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 16 Section 157 Cr.P.C that there has been unexplained delay in the F.I.R reaching the court. It reached the court only at 10.20 a.m on 11/6/2002. No explanation whatsoever was offered for the F.I.R not reaching the court on 10/6/2002. The counsel submits that no crucial significance can be attached to the fact that the appellants are named in Ext.P1 as another one so named in the F.I statement was found on investigation to be not culpably responsible for any act. Considering the relevance and significance of Ext.P1 and P1(a), we are of the opinion that it is unnecessary to delve deeper into those controversies. 27. The 5th circumstance relied on by the prosecution is that car No.KEK 2430, which PW27 had handed over to accused 1 and 3 sometime prior to the occurrence, was found abandoned at a place about 8 kms. away from the scene of the crime. It is the case of the prosecution that miscreants had come to the scene of the crime in this vehicle. The prosecution attempted to connect accused 1 and 3 with the crime with the help of this evidence tendered by PW27 and the later recovery of the car from the place where it was abandoned on 13/6/2002 under Ext.P20. We have no hesitation to agree with the learned Public Prosecutor that this would have been a formidable circumstance Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 17 against accused 1 and 3, if it were proved satisfactorily that the said vehicle was used by the miscreants to reach the scene of the crime. But, is there any evidence on this aspect? Significantly, there is absolutely no evidence to connect the vehicle KEK 2430 with the incident which took place at the scene of the crime. The car was seen abandoned on 13/6/2002. Significantly there is absolutely nothing recovered from the car to show that accused 1 and 3 had travelled in that car. More importantly, there is nothing available to indicate that the said car was used to transport persons to the scene of the crime. The learned counsel for the appellants rightly points out that no incriminating substance/explosive has been recovered from the car to suggest that the car might have been used to convey the miscreants with explosives to the scene of the crime. All the eye witnesses have turned hostile and there is nothing to indicate that this particular car was used by the miscreants, whoever they be, to come to the scene of occurrence and to commit the crime. In these circumstances, even though we find nothing erroneous in the conclusion of the court below that the evidence of PW27 that the car has been handed over by him to accused 1 and 3 prior to the occurrence, in the absence of any material to link the vehicle Crl.Appeal No.2485 of 2009 & Crl.R.P No.3971 of 2009 18 with the crime, the mere fact that it was seen abandoned days after the incident at a far off place, cannot be reckoned as a formidable circumstance against the appellants. It is, of course, true that the accused have not explained how the car taken on rent by accused 1 and 3 from PW27 was found abandoned at the place from which it was recovered under Ext.P20. That inadequacy cannot convert this circumstance into a crucial incriminating circumstance against the accused/appellants. We do not think it necessary, in these circumstances, to advert to various other circumstances relied on by the learned counsel for the appellants to contend that this theory of the said car KEK 2430 having come to the possession of accused 1 and 3 from PW27 cannot be accepted. The learned counsel for the appellant points out that there is no evidence even about the precise date on which