IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 CRL.A.No. 2216 of 2010(B) ------------------------ SC.455/2003 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT: ACCUSED NO.2 ----------------------------------------- K.LAKSHMANA I.P.S,AGED 75 YEARS, (RETD)I.G.P,KERALA POLICE, S/O.KANNAN, H.NO:10/838/1,DEVI, EDAKULAM.P.O,PEROORKADA,THIRUVANANTHAPURAM. BY SENIOR ADVOCATE SRI.P.VIJAYA BHANU, SRI.M.REVIKRISHNAN SMT.SANGEETHA LAKSHMANA SRI.VIPIN NARAYAN RESPONDENT(S): COMPLAINANT ----------------------------------------------- 1. CBI, S1U/V/SIC.11/NEW DELHI REPRESENTED BY THE STANDING COUNSEL OF CBI, HIGH COURT OF KERALA. 2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY SMT.RADHIKA RAJASEKHARAN P., SC FOR CBI R2 BY PUBLIC PROSECUTOR SRI.R.LAKSHMI NARAYAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ALONG WITH CRRP NO. 734 OF 2011 ON 06/04/2011, THE COURT ON 14/06/2011 DELIVERED THE FOLLOWING: Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = Crl.Appeal No.2216 of 2010 & Crl.R.P.No.734 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of June, 2011. Judgment Thottathil B.Radhakrishnan, J. “CR” 1.The appeal and the revision in hand, arise from a sessions case tried by the Special Judge (SPE/CBI). 2.Three persons were arrayed as accused in a case registered, investigated and final report submitted by the CBI. The proceedings against the first accused abated as he died during inquiry. The other two were tried. The second accused was found guilty of offence punishable under section 302 read with section 34 IPC. He stands convicted and sentenced to undergo imprisonment for life and to pay fine of rupees 10,000/-, with default sentence of simple imprisonment for six months. CRA2216/10 & CRRP734/11 -: 2 :- The third accused was acquitted. 3.The appeal is by the second accused, challenging his conviction and the sentence imposed. The revision is by the brother of the victim. He challenges the acquittal of the third accused and pleads that the sentence imposed on the second accused be enhanced from life imprisonment to death. 4.The prosecution case is as follows: i. Varghese, a leader of a naxalite gang, was involved in a number of murder and dacoity cases in Wayanad area of Kannur District in the early 1970. He was wanted as an accused person in crime numbers 22/70 to 25/70 of the Mananthawady police station for commission of offences of murder and dacoity in Thirunelli in the night intervening 09/10.02.1970. ii. Various parties of different police CRA2216/10 & CRRP734/11 -: 3 :- forces were involved in combing operations in the forest areas to apprehend the naxalites in Thirunelli area. iii. One unit of the 19th battalion of CRPF, headed by Subedar N.V.Peedikail was stationed in Thirunelli Vishnu Temple. Sub Inspector A.K.Achari (of the Kerala State police force) who was then posted at Chokkli police station, was attached to that unit of CRPF for liaison and guidance for that CRPF unit. He is now no more. iv. Keshwan Moseth of Thirunelli informed Subedar N.V.Peedikail and Sub Inspector A.K.Achari, in the morning of 18.02.1970, at Thirunelli Vishnu Temple, about the presence of Varghese in the hut of Shivaraman Nair at Thirunelli. v. On the basis of the aforesaid information, Subedar N.V.Peedikail, Sub Inspector A.K.Achari and other CRPF personnel CRA2216/10 & CRRP734/11 -: 4 :- including P.W.21 – Mohammed Hanifa (a CRPF Constable) and the first accused – Constable Ramachandran Nair, rushed to the hut of Sivaraman Nair, duly armed. vi. The aforesaid police party broke open the door of that hut and apprehended Varghese. vii. They brought Varghese towards the main road, with his hands tied behind his back. viii. On the way, the police got Varghese identified by the villagers, in order to ascertain his identity. ix. While Varghese was being taken in a police jeep to the Mananthawady police station, by the CRPF personnel, including first accused Ramachandran Nair, P.W.21 – Mohammed Hanifa and Sub Inspector A.K.Achari, they were stopped at Kattikulam Bridge and were ordered to return to Thirunelli Forest CRA2216/10 & CRRP734/11 -: 5 :- with Varghese in the custody of the second and third accused, namely, K.Lakshmana, Dy.SP, Tellicherry and P.Vijayan, DIG, Northern Range, Calicut. x. Varghese was interrogated in Thirunelli Forest by the second and third accused, namely, K.Lakshmana and P.Vijayan. xi. After the interrogation of Varghese, the second and third accused, namely, K.Lakshmana and P.Vijayan, ordered the first accused Constable Ramachandran Nair of CRPF to shoot Varghese dead in Thirunelli Forest, in furtherance of their common intention to eliminate Varghese in police custody. xii. Accordingly, first accused Ramachandran Nair fired a single shot from a service rifle and shot Varghese dead at 6.55 p.m. on 18.02.1970 in Thirunelli Forest. xiii. After Varghese was killed as above, a CRA2216/10 & CRRP734/11 -: 6 :- case was got registered as Crime No.28/70 of the Mananthawady police station, under section 174(1) CrlPC, on a complaint by the second accused K.Lakshmana, who was then the Dy.SP, Tellicherry, against the deceased Varghese for having fired at the police party. xiv. In connection with the aforesaid crime, P.W.17, V.Vasudevan Nair, the then Revenue Divisional Officer, Tellicherry, conducted inquest proceedings on 19.02.1970 under section 174 CrlPC and statements of witnesses were recorded. Subsequently, the police had sent the inquest papers to him, which he filed, being the RDO/SDM, as he did not suspect any foul play in this regard. xv. After the inquest proceedings, postmortem examination of Varghese’s dead body was conducted on 19.02.1970 by Dr.A.M.Lazar at the Government Hospital, Mananthawady, assisted by K.K.Gangadharan, nursing assistant. Dr.A.M.Lazar noticed a firearm CRA2216/10 & CRRP734/11 -: 7 :- injury on the left side of the chest of that dead body and the cause of death was due to injury to the lungs and heart and bleeding. K.K.Gangadharan, the nursing assistant, noticed a firearm injury on the chest and back of the dead body of Varghese. The injury on the chest was small whereas the injury on the back was larger. There were blackening signs on the legs and hands of the dead body. xvi. After postmortem, Varghese’s dead body was handed over to his relatives and was cremated at his native place on 19.02.1970. xvii. The first accused, Constable Ramachandran Nair and P.W.21 – Mohammed Hanifa were promoted as Officiating Lance Naiks (L/NK) w.e.f. 18.02.1970 by the Commandant of the 19th Battalion of CRPF on account of killing of Varghese at 18.55 hours on 18.02.1970 in Thirunelli Forest and both of them were also awarded Rs. 75/- each for the said alleged encounter. CRA2216/10 & CRRP734/11 -: 8 :- xviii. P.W.3 – Prabhakar Waryar, Vella @ Adyati and P.W.7 – Jogi, all residents of Tirunelli, had seen Varghese in police custody, of 10 to 15 policemen, at about 10/10.30 a.m. on the day of the alleged encounter. They saw Varghese, his hands tied behind his back, being taken on foot towards the main road at Thirunelli. According to the prosecution, these witnesses had discredited the claim and contents of the complaint made by the second accused K.Lakshmana, Dy. SP in Crime No.28/70 of Mananthawady Police Station, wherein he had alleged that Varghese was killed in a police encounter on 18.2.1970. xix. In 1977, first accused Ramachandran Nair, while working in Malabar State Police, made an extra-judicial confession, before his colleague P.W.22 – M.K.Jaidevan, that he shot dead Varghese in police custody on 18.2.1970 on the orders of superior officers, namely, the second accused K.Lakshmana, Dy.SP and the CRA2216/10 & CRRP734/11 -: 9 :- third accused P.Vijayan, DIG. P.W.22 contacted his friend K.Vellaiudhan in Calicut, who in turn, arranged a meeting with A.Vasu at Calicut. First accused Ramachandran Nair repeated his confession during that meeting with Vasu in the presence of P.W.22 and K.Vellaiudhan. On being asked by Vasu to give details of his confession in writing, the first accused Ramachandran Nair, dictated his confessional note after a few days to P.W.22 under the pretext that his handwriting was not good and that Vasu may find it difficult if the first accused were to write it down. P.W.22 wrote down the detailed confession of the first accused Ramachandran Nair in Malayalam and delivered it to Vasu at Calicut. A similar confession was made by the first accused Ramachandran Nair, also to P.W.10 – K.K.Suguna Prasad. Vasu contacted P.W.22 in 1998 over telephone, informing that the confessional note of the first accused Ramachandran Nair, kept by him earlier, has been located. The confessional note was CRA2216/10 & CRRP734/11 -: 10 :- released to the Press and news reports appeared in the newspapers/magazines, about Varghese being killed in police custody on 18.2.1970, by a police constable Ramachandran Nair (first accused) on the orders of superior officers, namely, K.Lakshmana, Dy.SP, Tellicherry (second accused) and P.Vijayan, DIG, Northern Range, Calicut (third accused). xx. The aforesaid acts of the then CRPF constable Ramachandran Nair (first accused); the then Dy.SP, Tellicherry K.Lakshmana, (second accused) and the then DIG, Northern Range, Calicut, P.Vijayan, (third accused) constitute offence punishable under section 302 read with section 34 IPC. 5.As already noted, proceedings against the first accused abated on his death pending enquiry. That was recorded. Charges were framed against the second and third accused on counts punishable under section 302 read with section 34 IPC. They pleaded not guilty. At trial, oral evidence of CRA2216/10 & CRRP734/11 -: 11 :- P.W.1 to P.W.31 and documents Exts.P1 to P43 were marked on the side of the prosecution and Exts.D1 to D47, were marked at the instance of the defence, through the prosecution witnesses. A copy of the service book of the first accused was marked as Ext.D48 and its original was marked as Ext.D48A at the instance of the defence. 6.Following due procedure, the Special Judge found that the first accused had committed the act of murder on the command of the second accused, whose intention he shared. It was also held that the third accused is entitled to the benefit of doubt. Accordingly, the Court below convicted the second accused and, after duly hearing him on the question of sentence, imposed on him the punishment to undergo imprisonment for life and to pay fine of rupees 10,000/- only with the default sentence of simple imprisonment for six months. 7.In support of the appeal of the second accused against his conviction and the sentence imposed CRA2216/10 & CRRP734/11 -: 12 :- on him, we heard Snr. Adv.P.Vijayabhanu. He also argued in opposition to the revision petition, in so far as it seeks enhancement of the sentence imposed on the second accused. We heard Adv.Radhika Rajasekharan on behalf of the CBI. Adv.Swathy Kumar argued on behalf of the revision petitioner, the brother of the deceased Varghese. Adv.Raja Vijayaraghavan opposed the revision petition, in so far as it is against acquittal of the third accused. 8.On behalf of accused persons 2 and 3, it was argued that there is no shred of legal evidence to enter any finding of guilt against either of them and the conviction and sentence imposed on the second accused is groundless. It was argued that the solitary material relied on by the court below, as regards the alleged incident of shooting, is the evidence of P.W.21 and that his testimony is ridden with inherent infirmities and cannot be relied upon. It was further argued that the prosecution is the result of a concerted effort by certain political groups to harm the CRA2216/10 & CRRP734/11 -: 13 :- accused persons who had zealously contributed to the protection of the State from activities of elements which were detrimental to the interest of the State. The pivotal argument was that the alleged victim, Varghese, was a much wanted offender, accused in many cases, and when he was traced out by the police team, he opened fire at the police and they had to retaliate to such aggression and, it was in that transaction that Varghese was killed in an encounter, which fact is a matter of record, maintained in the common course of official conduct and business of the police. 9.P.W.1, the brother of the deceased gave evidence that he came to know about the death of Varghese on 18.2.1970 from the police and that he had identified the dead body in the mortuary. He spoke about the injuries seen by him on the body of the deceased. P.W.8 deposed that he wrapped the dead body with fresh cloth and appropriately placed and tied it within a fresh palm leaf mat and that he was involved in removing the body to CRA2216/10 & CRRP734/11 -: 14 :- the Mananthawady Government Hospital for postmortem from the scene of occurrence. P.W.9, Sub Inspector of Police identified the handwriting and signature of Kunhahammed, the then Station Writer of Mananthawady Police Station, who made Ext.P4(a) entry dated 18.2.1970 which contains the endorsement that Varghese died while police fired in retaliation when he opened fire at police, on being encircled by the force. P.W.14 Prabhakaran stated that he was a police constable on duty at Mananthawady Police Station on 18.2.1970 and he knew the fact of Varghese having been shot dead in the occurrence. P.W.17 Vasudevan Nair, a retired IAS officer, who was the then Revenue Divisional Officer and Sub Divisional Magistrate of Thalassery, stated that the District Collector called him one day during night and stated that naxalite leader Varghese had died in an encounter with the police, as informed by the Superintendent of Police, Kannur and in the morning, a police jeep would be sent to P.W.17 and he had to go to Mananthawady to conduct the inquest. The District Collector, CRA2216/10 & CRRP734/11 -: 15 :- according to that witness, had insisted that P.W.17 himself should go, as the deceased was a high naxalite leader. He stated that accordingly, the next morning, he went to Mananthavady in a police jeep and that the second accused Lakshmana, who was the Dy.S.P., Tellicherry was present in the Rest House at Mananthawady. He stated that it was he who conducted the inquest; that the body was seen lying on the top of a rock and it was stated that the dead body was that of Varghese. These materials categorically show that the identity of the person who died in the incident in question is established as Varghese, who was a naxalite leader about whose death Ext.P4(a) entry dated 18.2.1970 is also recorded by the Mananthawady Police, which entry is proved through P.W.9, and that the said deceased was the brother of P.W.1. Though there is serious controversy about the credibility of the evidence of P.W.21 Mohammed Hanifa on certain other aspects, the fact that he was a constable on duty in the combing operations and that he saw Varghese, as also Varghese dying in the incident CRA2216/10 & CRRP734/11 -: 16 :- as a result of a bullet shot fired by police, is established by his oral evidence, which, to that extent, is not at all shaken by cross- examination. While the evidentiary value of the other aspects of his deposition would be scrutinized as we follow, we are clear in our mind that the identity of the deceased person being Varghese, has been spoken to by P.W.21, and his testimony, to that extent, is impeccable. In fact, the identity of the deceased person and the allegation that he died in the incident in question are not in dispute. There is also no serious dispute, even before us in this appeal, that the person who died in the incident on 18.2.1970 was Varghese, a naxalite leader and the brother of P.W.1. Therefore, by legal evidence, it has been proved beyond doubt that deceased Varghese died on 18.2.1970 as a result of having received a bullet shot fired by the police and the identity of the said deceased person has been established by such evidence. The statement of the second accused under section 313 CrlPC is also to this effect. CRA2216/10 & CRRP734/11 -: 17 :- 10.Leaving aside the plea of P.W.1 that the surviving accused persons ought to have been handed down capital punishment, the thrust of the rival arguments advanced before us on behalf of the second and third accused, on the one hand, and those on behalf of the CBI justifying the conviction and sentence, as also, the arguments in support of the revision by P.W.1, revolves around the question whether there was legal evidence to hold that the death of the deceased was caused by the first accused Ramachandran Nair shooting Varghese, while the said person was in police custody; and, if he had done so, was it on the orders of the second accused and/or the third accused? The question ultimately boils down to the issue as to whether Varghese died in an encounter or whether he was a defenseless victim, who was killed while in the custody of the police; he being shot down by the first accused, on the orders of accused persons 2 and/or 3. 11.Ext.P1, allegedly, the confession statement of CRA2216/10 & CRRP734/11 -: 18 :- the first accused Ramachandran Nair, was not acted upon by the court below for any purpose in the light of the provisions contained in section 30 of the Evidence Act. There are some materials including depositions, as part of the record, on the basis of which it is attempted to be shown that the first accused Ramachandran Nair had made certain statements to different persons, including some of the witnesses, of whom one is his widow. For the present, I keep aside all such materials and proceed to consider the other evidence on record. 12.Ext.P4(a) entry dated 18.2.1970, in the records of the Mananthawady Police Station, that Varghese died while police fired in retaliation when he opened fire on being encircled by police, is the version recorded on behalf of the police, immediately following the incident. P.W.12, the then Sub Inspector and Station House Officer of the Mananthawady Police Station proved, among other things, Ext.P7(a) entry dated 14.02.1971, to the effect that the accused was shot dead on CRA2216/10 & CRRP734/11 -: 19 :- 18.02.1970 in an encounter with police in Thirunelli forest in North Wayanad. He identified that entry as one made by the second accused Dy.S.P. Lakshmana, in connection with a case in which deceased Varghese was wanted. He also proved the entry at serial number 28/70 in Ext.P9, showing the second accused Lakshmana as the complainant. The said entry is to the effect that while the police encircled to apprehend Varghese, he opened fire at police and therefore the police fired in return and that Varghese died in that encounter. 13.P.W.7 Jogi deposed that he last saw Varghese after tea in the shop of Ibrahim. He was sitting on the road after having tea. He said that policemen came there and asked him and others to see if they wanted. He and others saw Varghese wearing trousers and baniyan and that his hands were tied behind his back. He deposed that the policemen were leading Varghese towards the forest, by walk. He said that P.W.3 was also present at that tea shop. The court below did not CRA2216/10 & CRRP734/11 -: 20 :- find P.W.7 unworthy of credence and appreciated his testimony, taking into consideration that he is an illiterate Adivasi coolie. The cross- examination of P.W.7 did not shake the credibility of that witness, though as noticed by the court below, it had come out that he had not specifically stated to the investigating officer, the name of the tea shop keeper, the kind of dress that Varghese was wearing, etc. P.W.7 appears to be one who adored the support given by deceased Varghese to the poor. He had stated that till the intervention of Varghese, wages were paid only in the form of paddy, to be de-husked to make gruel, as food. Though P.W.7 grieved over the death of Varghese and also had hostile attitude towards the police, on the whole, there is no reason to reject his evidence in toto, more particularly because of the corroboration it finds in the testimony of other witnesses, as would be noticed hereinafter. 14.P.W.3, Prabhakar Waryar, a farmer and a classmate of Varghese, stated that he saw CRA2216/10 & CRRP734/11 -: 21 :- Varghese on 18.02.1970 from the tea shop and that Varghese was being led by the police with his hands tied behind his back. He said that this was at about 10 to 10.30 in the morning and he was in the tea shop of a Muslim, to have tea. He said that the policemen asked the people there as to whether the person with them was Varghese or not and whether they knew him. He said that they replied in the affirmative. He admitted that he was an accused along with Varghese in the murder case in which one Chekku was allegedly killed. The said witness stated that his father had a gun and on 9.2.1970, Varghese had asked for it. He also spoke of having love and respect for Varghese, which grew with the attitude to save the poor. He stated that the police were seen in their uniform and asserted that he had actually seen policemen taking Varghese to the forest. He denied the suggestion that Varghese had obtained a gun from him and it was with that weapon that Chekku was killed. 15.The evidence of the aforesaid two witnesses CRA2216/10 & CRRP734/11 -: 22 :- namely, P.W.7 and P.W.3, could only be treated as credible versions of those persons, one of whom was an Adivasi coolie and the other, an educated person. Though certain discrepancies brought out during the cross-examination of both those witnesses, the reliability of those witnesses, as speaking the truth is, in no manner, whittled down by such omissions or discrepancies which are not material in nature. Their versions corroborate each other. It needs to be remembered that the passage of time after the incident would, obviously, disable the witnesses from speaking with specificity on the finer details of the incident of which they are called upon to testify. Though they may have adoration for Varghese and, may be, prejudice to the police as a lot, no personal prejudice or animosity as against the accused persons, or any reason for such personal prejudice is shown or, put to them. The crux of their version in the form of oral evidence, tested on the touchstone of cross- examination, is that both of them saw the police leading Varghese to the forest, with hands tied CRA2216/10 & CRRP734/11 -: 23 :- behind his back. As rightly noted by the court below, their testimonies are only to the effect of having seen Varghese being led by the police, with his hands tied behind his back, and nothing more. These witnesses do not stand to charge the accused persons of any overt act. The relevance of their evidence is as regards certain events in the chain of allegations, forming part of the prosecution case. In fact, the court below was justified in taking the view that there is nothing on record that persuades the acceptance of the discrepancies in their depositions as so vigorous as to reject their evidence, which supports the core of the prosecution case, as stated by those witnesses. I find no element of artificiality or improbability as to their presence in the tea shop at the relevant time. Their version is natural, reliable and truthful. On a re-appreciation of the evidence of P.W.7 and P.W.3, I do not find any infirmity in the conclusions arrived at by the court below on the basis of such evidence. The evidence of P.W.3 and P.W.7 clearly establish that deceased Varghese CRA2216/10 & CRRP734/11 -: 24 :- was in police custody in the morning of 18.02.1970 and he was led by the police with his hands tied behind his back and that he was taken into the forest.