Dismissed

State of Kerala v. K.K.Sreedharan

Kerala HC28 Jan 2019CRL.A/225/2004

Case brief

AI extract

What is this about?

The High Court dismissed the State's criminal appeal against the acquittal of seven accused, including police officers, charged with dacoity. The court held that the material witnesses turned hostile, failed to identify any accused, and the prosecution brought no evidence to incriminate the respondents.

What did the court decide?

The appeal filed by the State is dismissed and the judgment of the trial court acquitting the accused is upheld.

State of Kerala Vs K.K.Sreedharan — Criminal Trial and Appeal | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.UBAID

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MONDAY, THE 28TH DAY OF JANUARY 2019/8TH MAGHA, 1940

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CRL.A.No.225 of 2004

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JUDGMENT IN SC 92/1997 of PRINCIPAL ASSISTANT SESSIONS COURT, THRISSUR DATED 05-12-2002

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APPELLANT/COMPLAINANT :-

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR

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RESPONDENT/ACCUSED :-

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1 K.K.SREEDHARAN, S/O.KOCHATHA, RESIDING AT KALIYATHUKADAVU VEETIL, H.NO.7/583, KODAKARA PANCHAYATH, MUKUNDAPURAM TALUK, TRICHUR DISTRICT.

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2 VENUGOPALN, S/O.MADAPPILLY VEETTIL AYYAPPAN, EZHUTHASSAN, VIYYUR VILLAGE AND DESOM, TRISSUR TALUK.

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3 ANTO @ ANTONY, S/O.MALIYAKKAL VEETTIL ANTONY, NIRMALAPURAM DESOM, KOORKKANCHERY VILLAGE, TRISSUR TALUK.

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4 N.V. GEORGE, S/O.NIRAPILAVUNKAL VEETIL VARKEY, PARAYANTHAZHAM DESOM, KAINOOR VILLAGE, TRISSUR.

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5 K.K. VISWAMBHARAN, S/O.KOMBIYIL VEETIL KANDAN, ELARI DESOM, PULLAZHI VILLAGE, TRISSUR.

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6 VALSAN @ BELSON, S/O.CHAVARATTIL VEETTIL PAVITHRAN, EDAKKALATHUR VILLAGE, AND DESOM, TRISSUR.

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CRL.A.No.225/2004

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7 JOY, S/O.KONNAMPUZHAVETIL INASU KURIACHIRA DESOM, CHIYYARAM VILLAGE, TRISSUR TALUK.

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R1-R4 BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE R7 BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ BY ADV.SRI.C.P.RAVIKUMAR BY ADV.SRI.K.ANAND (A-1921) BY ADV.SRI.TONY MATHEW

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.225/2004

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JUDGMENT

This is an appeal brought by the State against

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the judgment of acquittal of the Court of Session, Thrissur in S.C.92/1997. The respondents are the accused including police officers, acquitted by the trial court. The case was investigated by a special investigation team of the CBCID as ordered by this Court in a writ appeal brought by the de facto complainant. All the seven accused faced trial before the learned Principal Assistant Sessions Judge, Thrissur on the allegation that at about 10.30 p.m. on 12.4.1994, they trespassed into the house of one Shah Wagendra at Thrissur, with the object of taking away the diamond pieces and the cash in the possession of the said Shah Wagendra, they intimated him and his friend Asok Kumar, wrongfully restrained them without permitting them to go out, and at the point of a gun, they jointly, and in prosecution of the criminal design hatched by them, committed robbery of seven diamond pieces, and also an amount

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of Rs.1,00,000/- from the possession of the said Shah Wagendra. As the accused are police men, the victim hesitated to file complaint, but later, on the advice of his friends and well wishers, he filed a complaint against the police officers. When investigation went in snail-pace, he approached this Court, and obtained orders for effective investigation by a special team. Accordingly, a special team of the CBCID conducted investigation, and submitted final report in court under Sections 448, 323, 341, 342, 347, 395,

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506(ii), 201 and 120B IPC.

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All the seven accused appeared before the learned trial Judge, and they pleaded not guilty to the charge framed against them by the trial court under Section 25(IB)A read with Section 3 of the Arms Act, and under Sections 109, 120B, 201, 323, 342, 347, 395, 448 and 506(ii) IPC. The prosecution

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examined as many as 71 witnesses, including the victims, when the fact is that nobody other than the

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two victims had witnessed the alleged incident, and also proved as many as 147 documents in the trial

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court. The MO1 to MO3 properties were also

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identified during trial. All the accused projected a defence of total denial through out the trial. They

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did not adduce any evidence in defence. During

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trial, the two victims turned hostile to the prosecution. They did not identify any of the accused as the person involved in the alleged incident of house trespass and dacoity.

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On an appreciation of the evidence, the trial

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court found all the seven accused not guilty of the offences alleged. Accordingly, they were acquitted by judgment dated 5.12.2002. Aggrieved by the said judgment of acquittal, the State of Kerala brought this appeal with the leave of this Court under Section 378(3) Cr.P.C.

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Pending this appeal, the 5^th accused (5^th respondent) was reported dead. The police was directed to verify the fact and submit a report. Accordingly, the Station House Officer submitted a

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report along with the copy of the death certificate, which shows that the 5^th accused (5^th respondent) died

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at the Amala Cancer Hospital, Thrissur on 9.11.2013.

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Accordingly, the death of the 5^th respondent (5^th accused) was recorded in the proceedings.

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On hearing both sides, and on a perusal of

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the materials, I find absolutely no merit in this appeal brought by the State. Even according to the prosecution, there are only two victims, and nobody other than these two victims had witnessed the alleged incident of house trespass and dacoity. It

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is something that happened at the house in possession

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of the victims at about 10.30 in the night, when nobody other than the victims was there to witness anything. It is not known, why the prosecution examined as many as 71 witnesses. Any way, during trial, the two material witnesses turned hostile.

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They did not support the prosecution in any manner. PW1 is the de facto complainant, and PW2 is the other victim of offence. All the alleged offences were committed as against them, and PW1 had even given a statement to the learned Magistrate under Section 164 Cr.P.C. The said statement was also marked during

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trial. It is pertinent to note that the specific portions of this statement were not in fact put to PW1 to ascertain the veracity of the statement given by him in court as a victim. The learned Public Prosecutor just got the statement marked, and he did not venture to prove the statements given by the victim before the learned Magistrate. PW2 had not given any such statement under Section 164 Cr.P.C. The contradictions in the statements given by the two witnesses were marked on the side of the prosecution,

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and the contradictions were proved by the Investigating Officer. That apart, there is nothing, or there is no circumstance of any sort against any of the accused.

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When asked about the name or details of the persons, who committed house trespass and dacoity, both the victims stated that they are not in a position to identify any of them, and none among the accused had trespassed and committed dacoity. Apart

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from marking some contradictions in the statement, the prosecution did not bring out anything in the

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CRL.A.No.225/2004

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cross examination of PW1 and PW2 to incriminate any

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of the accused specifically, or to show anything regarding their involvement in the alleged acts of offence.

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A vigorous investigation was made by a

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special team of the CBCID as ordered by this Court. Admittedly, the persons, who allegedly trespassed

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into the house of the victims, and committed

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atrocities therein including dacoity are not known to them previously. Admittedly, none of the victims is

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familiar to any of the accused, or any of the persons, who allegedly committed house trespass and atrocity. It is pertinent to note that the special

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investigation team did not care to have a Test Identification Parade conducted for identifying the culprits. This is a serious breach on the part of the investigation team. When none of the accused is admittedly known to the victims, or when nobody is familiar to the victims, it is quite elementary as part of investigation that a Test Identification Parade should be conducted. The prosecution has no

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explanation for this failure, and so, conveniently

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the material witnesses could change their versions.

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The trial court did not think of proceeding against PW1 for having given false evidence despite the

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statement given by him under Section 164 Cr.P.C. As already stated, it was only got marked by the learned Public Prosecutor, and he did not venture to prove it legally when the victim changed his versions during trial. There is absolutely nothing in the evidence of PW1 or PW2 against any of the accused, and they have not in any manner identified any of the accused as the person or persons, who actually committed

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trespass and atrocious acts including dacoity. Five among the seven accused were police officers at the

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relevant time. The de facto complainant and his

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friend, who ventured to make a complaint against them did not pursue it further. It appears that things were viciously and amicably settled outside during

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trial. That must be the reason why the victims

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turned hostile. Any way, nothing could be brought

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out in the cross examination of the victims to

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incriminate any of the accused except marking some contradictions. In the absence of any evidence or circumstance against the accused, the trial court rightly found them not guilty of any of the offences, and they were rightly acquitted by the trial court.

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I find no merit in the appeal brought by the State.

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In the result, this appeal is dismissed.

Sd/P.UBAID JUDGE

//TRUE COPY//

P.A. TO JUDGE

Jvt/1.2.2019

State of Kerala v. K.K.Sreedharan

Case brief

What is this about?

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State of Kerala v. K.K.Sreedharan

Case brief

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