Kanakarajan @ Kanakan vs State Of Kerala

The material available on record reveals that initially there were nine accused in this case against whom an FIR was registered at 9 am on 6.3.2000 at Kongad Police Station for causing the death of one Rajesh and injuring the complainant/Vinod (PW2), who happens to be the cousin of the deceased. Since the accused No. 2 (Ayyappankutty) was found hanging from a tree on the next day and was declared dead, charges were framed only against the remaining accused under Sections 143, 147, 148, 302, 342 and 324 r/w 149 of Indian Penal Code, 1860 [hereafter ‘IPC’ for brevity]. The Trial Court acquitted A3, A4, A6, A7, A8 and A9 of the charges and convicted A1 (Kanakarajan) and A5 (Sukumaran) for the offences punishable under Sections 143, 147, 148, 342 and 302 r/w 149 of IPC. On an appeal, the High Court acquitted A5 of all the charges but upheld the order of conviction and sentence as against A1 (Kanakarajan) who is before us in the present appeal.

The brief facts of the case as unfolded from the case of prosecution is that, on the intervening night of 5th and 6th March, 2000, an ox procession was going on at Kunnappully temple at Tharakassery and several people had gathered around the temple premises. At about 2 A.M, accused attacked the deceased Rajesh, with deadly weapons such as swords and sticks, as a result of which he sustained grievous injuries. When the complainant—Vinod (PW2) tried to intervene and stop the accused, he too was beaten up by the accused. While the general public started gathering at the place of incident, the accused party took to their heels. With the help of some of the people assembled there, PW2 took the injured Rajesh in his jeep to the Fort Hospital where the doctor advised to shift the injured Rajesh to the Medical College Hospital, Thrissur. On the way to the Medical College, Rajesh succumbed to the injuries at about 5.30 A.M. Based on the information furnished by the complainant-Vinod/PW2 (cousin of the deceased), Sub-Inspector (PW 21) at Kongad Police Station registered the case as Crime No. 56/2000. PW22 (Circle Inspector) took up the investigation and carried it through to a larger extent and his successor, Circle Inspector (PW23) concluded the investigation and filed the charge sheet against all the nine accused persons, who pleaded not guilty and claimed trial.

The prosecution in order to bring home the guilt of the accused has produced 23 witnesses and the defense has produced one witness. Out of the aforesaid 23 prosecution witnesses, PW3 who was an eyewitness to the incident, turned hostile. PWs 11 and 12, who were witnesses to the recovery mahazar (Ext. P10), also turned hostile. PW11 being the panch witness for the recovery of ‘vadival’, allegedly the weapon used for committing the crime, did not support the case of the prosecution. In the accused/appellant’s statement under Section 313, Cr.P.C, he had stated that on the eve of Kummati festival he went to the temple to pay respects to the deity and while having a soda drink from a roadside shop, he saw a group of people running into the temple compound and heard from someone that Haridas, Vinod (PW2) and Rajesh (deceased) were attacking Ayyappan Kutty (A2). While he was trying to see from a closer point, as to what is going on, someone among the crowd said some persons have taken away Ayyappan Kutty (A2). On the next day i.e. 7.3.2000 at about 9.30 A.M, Ayyappan Kutty was found hanging from a tree while his legs were touching the ground and there were injury marks on A2’s body. When he went to the police station to report the same, the police arrested him and foisted a false case upon him, though he had nothing to do with the incident.

Aggrieved by the conviction both appellant/A1 and A5 carried the matter over to the High Court in appeal, where the High Court gave benefit of doubt to A5 and allowed his appeal by acquitting him of the offences charged. The appeal of appellant/A1 was however dismissed by the High Court as being devoid of any merit, thereby confirming the order of conviction and sentence passed by the Trial Court.

The other glaring aspect is non-conduction of the test identification parade. This aspect gains relevance as PW4 and PW5, who are cited as eye witnesses to the incident, deposed that they have not mentioned the names of the accused and that they did not know the accused.

Therefore we find that the prosecution case is filled with infirmities and lacunas, therefore the only possible and probable course left open is to grant benefit of reasonable doubt to the appellant herein. Resultantly, the impugned judgment is set aside and the appeal is allowed. The bail bonds of the appellant stands discharged.

..................................J (N. V. Ramana) .................................J (Prafulla C. Pant) New Delhi Dated: April 21, 2017