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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 841 OF 2007

KANAKARAJAN @ KANAKAN …APPELLANT

VERSUS

STATE OF KERALA …RESPONDENT

JUDGMENT

N.V. RAMANA, J.

1.This appeal is directed against the Judgment dated 8

th

November, 2006 passed by the High Court of Kerala in

Criminal Appeal No. 1906 of 2004, wherein the High

Court has dismissed the appeal preferred by the

accused/appellant herein and upheld the order of

conviction and sentence passed by the learned

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Additional Sessions Judge, Fast Track Court-I, Palakkad,

in Sessions Case No. 104 of 2002.

2.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

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conviction and sentence as against A1 (Kanakarajan)

who is before us in the present appeal.

3.The brief facts of the case as unfolded from the case of

prosecution is that, on the intervening night of 5

th

and

6

th

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

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the Medical College, Rajesh succumbed to the injuries

at about 5.30 A.M.

4.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.

5.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

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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.

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6.The Trial Court, after a full-fledged trial has come to the

conclusion that the prosecution could not prove the

guilt of accused A3, A4, A6, A7, A8 and A9 beyond

reasonable doubt and acquitted them by extending the

benefit of doubt. However, the Trial Court found A1 and

A5 guilty of the offences and sentenced them under

Section 302, IPC to imprisonment for life and to pay a

fine of Rs.10,000/- each and in default, to undergo

rigorous imprisonment for six months. Further under

Section 342, IPC, the accused were sentenced to

undergo rigorous imprisonment for a period of six

months under Section 143 and for a period of one year

under Section 148, IPC. The sentences were however

directed to run concurrently.

7.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

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dismissed by the High Court as being devoid of any

merit, thereby confirming the order of conviction and

sentence passed by the Trial Court.

8.We heard the learned senior counsel Mr. R. Basant

appearing for the accused/appellant. He contended that

the entire case is fabricated and foisted one

suppressing the real incident that had taken place in

order to falsely implicate the accused/appellant. He has

vehemently argued that the prosecution has concocted

the story to harass the accused by taking advantage of

his long standing rivalry with the deceased concerning

cutting of some rubber trees. At the alleged place of

incident, which is a temple compound, there were more

than 10,000 people present in addition to the police

force stationed around the temple compound. He points

out that, when an incident of such grave nature had

taken place amidst huge public gathering and police

force, it is impossible to not have a single independent

witness.

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9.Another vital aspect pointed out by the learned senior

counsel is that making PW2 a witness to the alleged

incident is an afterthought of prosecution. PW2—the

author of FIR and being cousin of deceased, in

connivance with his brother-in-law who was a

Sub-Inspector of Police in the same district, is the

mastermind in implicating the accused. As a matter of

fact, on the night of the said incident, it was PW2 and

the deceased Rajesh who attacked A2 (the brother of

A1) and kidnapped him, due to their past enmity over

cutting rubber trees belonging to another brother of A1

and A2. On the next day, the dead body of A2 was

found hanging from a tree under mysterious

circumstances with his feet touching the ground.

Sixteen (16) ante mortem injuries were found in his

body and some greenish poisonous substance was

found oozing from his mouth. When A1 visited the

police station to report the mysterious death of A2,

instead the police arrested him in the present case. In

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order to save PW2, his brother-in-law being

Sub-Inspector of Police, concocted the prosecution story

and falsely implicated A1 in the case. On A2’s

mysterious death, the police had merely registered a

case of unnatural death and no proper investigation

was conducted and no person was prosecuted or

arrested.

10. Learned senior counsel further submitted that

there was an inordinate delay of 24 hours on the part of

police in presenting the FIR before the court and no

reason has been given by the prosecution for such

delay. He further contends that the motive behind the

crime, as alleged by the prosecution, is so trivial and

unbelievable, would not be a sufficient reason for the

accused to settle with such a heinous crime. Further he

submits that it was well known fact among the people

living in the vicinity that the deceased Rajesh was

known to be a person of bad character in the locality as

he has previously indulged in various illegal activities

and had disputes with several people. According to

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learned senior counsel this fact stands corroborated

with the evidence of PW’s 2 and 4. Doubting the

reliability of prosecution witnesses, it is submitted that

out of the 23 prosecution witnesses, PW3 (eyewitness)

turned hostile. PW 11 (panch witness) did not support

the prosecution case on recovery of alleged weapon.

The presence and conduct of PWs 4 and 5

(eyewitnesses) at the place of occurrence is highly

doubtful because despite being close friends of the

deceased, even after witnessing the incident, neither

did they accompany the injured to the hospital nor did

they take effort to register a case with the police. Their

statement was recorded by the police five days after

the incident. Even PW4 in his evidence did not mention

the name and presence of PW5 at the alleged scene of

offence. Learned senior counsel has finally submitted

that though the High Court discarded the statement of

PW2 as his presence at the place of offence was

doubtful but the High Court still believed the story of

prosecution and convicted the appellant while

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discharging other accused by giving them benefit of

doubt. Hence, he prayed that the judgment of the High

Court is perverse and that it is based on wrong

reasoning, and therefore needs to be set aside by this

Court.

11. On the other hand, learned counsel appearing for

the State supported the prosecution case on all aspects

and submitted that the reasoning given by the High

Court in convicting the accused is based on settled

legal principles. The High Court clearly recorded the

finding that though no reliance is placed on the

testimony made by the prime witness (PW2), it may not

make any difference in fastening the liability of the

accused. Hence, the impugned judgment does not call

for interference by this Court.

12. Having heard learned counsel for both side and

after carefully analyzing the material available on

record, the following point falls for our consideration is

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(1.) “Whether the High Court is justified in convicting

the accused (A1) and (2.) Whether the prosecution

could prove the guilt of the accused beyond reasonable

doubt”?

13. Looking at the evidence on record we find that

there are certain pivotal issues where the prosecution

has failed to provide a satisfactory explanation. The

facts on hand reveal that the incident took place at 2

AM on the night of 5

th

and 6

th

March 2000. The place of

occurrence is in the compound of the temple. On that

day an ox procession was going on, there was a huge

gathering of people and also several police personnel

were present to maintain law and order. Moreover

PW2-the eye witness, who happens to be the cousin of

the deceased, basing on whose information the criminal

law was set into motion. According to his statement a

police constable was present when the incident was

taking place. Further he had tried to stop the accused

and was injured in the process. He carried the injured to

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the hospital at Pallakkad in his own jeep. Later he did

not accompany the deceased to the Medical College

Hospital Thrissur, where on the way deceased

succumbed to the injuries. He came to know about the

death at 7:30 AM, he neither chose to go to the police

nor to the doctor for treatment and kept quiet till the

police came to him. According to PW2 there are several

houses and shops in the vicinity of the place where the

incident took place, PW3 who is cited as eye witness

turned hostile.

14. The prosecution then relied upon the evidences of

PW4 and PW5; both of them have stated to have

witnessed the incident and are cited as the

independent witnesses. It is to be noted that the

witness statements of PW 4 and PW 5 were recorded

five days after the incident. PW4 deposed that he is a

friend of deceased and got acquainted with PW2 after

the incident. He did not mention about the presence of

PW5 at the time of incident. Admittedly no test

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identification parade was conducted and he did not

know the names of accused persons as on the date of

occurrence. PW11, the panchwitness for recovery of the

weapon, has turned hostile. He deposed that he signed

the document without even knowing the contents of it.

15. As per PW21 the Sub Inspector of Police, several

policemen were on duty at temple premises. As per

PW22 the C.I of police PW4 told him that there were 3

constables present at the scene of crime. Neither PW4

nor PW5 disclosed to him that they knew the accused

before the incident. They also did not mention the

names of any of the accused. In clear terms, he

admitted that though he had interrogated the people

near the place of occurrence, he did not include them

as witness. PW6 is the doctor who conducted post

mortem on the deceased. PW18 is the doctor who

examined the dead body of deceased Ayyappan Kutty

(A2). According to him the cause of death was due to

hanging. In the report he mentioned that in the

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stomach portion there were few unidentified food

particles in a brownish fluid medium emitting an

insecticide smell. He also expressed the view that there

can be death of the person or unconsciousness after

consuming insecticide. Evidently there were 16 ante

mortem injuries on his body and was found hanging

from a tree with his feet touching the ground. There is

no investigation or explanation put forth by the

prosecution for these injuries.

16. The crucial evidence of DW1 is that on the evening

of 5.3.2000, he saw Rajesh (deceased) scuffling with an

Auto Rickshaw driver when A2 interfered and separated

them taking the side of Auto Rickshaw driver. Later in

the midnight, Rajesh (deceased) holding a liquor bottle

in one hand and knife in the other hand, attacked A2. At

that point of time, when people started gathering, 2-3

people had taken away Ayyappan Kutty (A2) from there.

The next day at 9.30 am the body of A2 was found

hanging from a tree with his legs touching the ground.

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17. In the backdrop of these facts and circumstance a

closer look at the evidence of prosecution witnesses, in

particular PW2, PW4 PW5, PW11, PW12, PW21 and

PW22, would reveal that these witnesses are not cogent

and trustworthy to form basis to convict the appellant.

Admittedly the incident had taken place in the midst of

several hundred people and the prosecution witnesses

in equivocal terms stated that the police personnel

were present. There is nothing on record to show that

the police constables available at the scene of offence

were examined or that they have played any role in

preventing the accused. The conduct of PW2 in not

accompanying the accused to the second hospital, not

giving the complaint to the police and not getting his

injuries treated raises serious doubts and supports the

case of the defense that PW2 is the king pin who has

implicated the accused with the help of his

brother-in-law who is in the police department. Above

all when the High Court disbelieves the presence of

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PW2, at the scene of offence, it ought not to have taken

into consideration his evidence to convict the appellant.

The prosecution has not taken minimum care to

examine the independent witnesses in support of their

case and particularly when it is nobody’s case that

independent witnesses were not available.

18. We feel that non examination of credible

independent witnesses in this case is very much fatal to

the prosecution’s case. Particularly when it is their own

case that there were several shops and houses in the

vicinity and several people were present. It is not

necessary that in each and every case on the ground of

non examination of independent witnesses the case of

the prosecution has to be brushed aside, if the evidence

of prosecution witnesses is consistent, cogent and

corroborated by other evidence it can be safely relied

upon, but it is not so in the case at hand. The High

Court disbelieved the presence of PW2, PW3 turned

hostile, statements of PW4, PW5 and PW 22 do not

inspire confidence. No other independent witness is

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examined. PW11 the panchwitness for recovery of

weapon has also turned hostile and deposed that he

signed without reading the same. Moreover there is no

evidence to show any results of forensic examination of

the weapon so recovered. In our considered opinion the

High Court, while convicting the appellant, should have

been more cautious while weighing the evidence of

these prosecution witnesses.

19. It is to be noted that the High Court has

undertaken a scientific hypothesis to conclude that the

difference of time of death, between the deceased A2

and Rajesh, were not connected. High Court’s reliance

on conjectural premise built upon the timing of rigor

mortis, when the surrounding circumstances were

suspicious, would not be safe to be followed. The next

important aspect which requires our consideration is

non-explanation of the injuries on the body of deceased

A2. The death of deceased A2 as per ocular and

medical evidence appears to be under suspicious

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circumstances. It is a clear case of latches on the part

of prosecuting agency in conducting investigation goes

to the root of the matter. Non-explanation of the serious

injuries on the body of the accused A2 by the

prosecution is fatal in this case.

20. In this case the High Court while convicting the

accused has overlooked settled principles of criminal

law and in a mechanical way based its conclusion on

the premise that the injuries were not sustained in the

process of the same incident. In a case of this nature,

where the investigating agency utterly failed in its duty

to thoroughly investigate and find out the reasons for

the death of A2 who is alleged to be the prime accused

in causing the death of the deceased, convicting an

accused would not be safe.

21. The other ground put forth by the learned senior

counsel is in respect of motive. According to him the

motive attributed to the accused is that he had cut the

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rubber trees belonging to the brother of the accused

four (4) years prior to the incident and it is not a

sufficient motive to commit such a heinous crime.

Needless to say that in this case the motive is a double

edged sword, as it can be a reason for crime and at the

same time a reason for false prosecution specially when

the motive alleged is of ill-will and bad blood. In the

present case evidence on record does not inspire

confidence. Therefore, reliance on the motive would not

be safe and as such serves no purpose.

22. 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.

23. 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

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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