Partly allowed

Satheesh Kumar, C.NO.349 v. Central Bureau of Investigation (Cbi)

Kerala HC5 Sept 2019CRL.A/385/2018

Case brief

AI extract

What is this about?

The court upheld convictions arising from a conspiracy to attack three intended victims, finding the approvers' evidence sufficiently corroborated. It set aside the convictions and sentences of the two tempo traveller drivers because their participation in the conspiracy was not proved, and dismissed the remaining appeals.

What did the court decide?

Convictions and sentences of accused 12 and 13 set aside.

Satheesh Kumar, C.NO.349 Vs Central Bureau of… — 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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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CRL.A.No.945 OF 2015

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AGAINST THE JUDGMENT IN SC 1241/2011 OF ADDITIONAL SESSIONS COURT/SPL.COURT (SPE/CBI), THIRUVANANTHAPURAM DATED 1.9.2015

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CRIME NO.2/2010 OF CBCID, THIRUVANANTHAPURAM

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APPELLANTS/ACCUSED NOS.1 AND 11:

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1 ABI

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AGED 39 YEARS

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S/O.MOHAMMED KUNJU, KAKKALAMPARAMBIL HOUSE, WARD.NO.17, MANNANCHERY, ALAPPUZHA,

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2 SULFIKAR, AGED 32 YEARS S/O.MYTHEEN KUTTY, S.S MANZIL, (KANDATHIL) WARD NO.18, MANNANCHERY, ALAPPUZHA,

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BY ADVS.

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SRI.C.S.MANU SMT.NEETHU.K.SHAJI SRI.S.K.PREMRAJ SRI.T.B.SIVAPRASAD SRI.C.Y.VIJAY KUMAR

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Crl.Appeal No.945/15 & conn.cases

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RESPONDENT/COMPLAINANT:

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CENTRAL BUREAU OF INVESTIGATION THIRUVANANTHAPURAM, REPRESENTED BY ITS SUPERINTENDENT OF POLICE

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R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.

¶22

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.1152/2015(A), CRL.A.1163/2015, CRL.A.1370/2015, CRL.A.959/2015(A), CRL.A.968/2015, CRL.A.580/2016, CRL.A.385/2018, THE COURT ON 5.9.2019 DELIVERED THE FOLLOWING:

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Crl.Appeal No.945/15 & conn.cases

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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CRL.A.No.1152 OF 2015

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AGAINST THE JUDGMENT IN SC 1241/2011 DATED 01-09-2015 OF ADDITIONAL SESSIONS COURT/SPL.COURT (SPE/CBI),

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THIRUVANANTHAPURAM

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APPELLANT/ACCUSED NO.12:

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FAISAL, S/O HAMSA, AGED 28 YEARS FASILA MANZIL AMBALAKKADAVU MOSQUE, WARD NO.5, MANNANCHERRY VILLAGE, MANNANCHERRY.

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BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.T.ANIL KUMAR SRI.A.RAJESH SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.M.VIVEK

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RESPONDENT/COMPLAINANT:

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CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.

¶39

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.1163/2015, CRL.A.1370/2015, CRL.A.945/2015, CRL.A.959/2015(A), CRL.A.968/2015, CRL.A.580/2016, CRL.A.385/2018, THE COURT ON 5.9.2019 DELIVERED THE FOLLOWING:

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Crl.Appeal No.945/15 & conn.cases

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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CRL.A.No.1163 OF 2015

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AGAINST THE JUDGMENT IN SC 1241/2011 OF ADDITIONAL SESSIONS COURT/SPL.COURT (SPE/CBI), THIRUVANANTHAPURAM DATED 1.9.2015

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APPELLANTS/ACCUSED NO.4 AND 5:

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1 SATHAR

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AGED 41 YEARS S/O. ABDUL KHADER, HOUSE NO.31, THRIKODITHANAM HOUSING COLONY, WARD NO.14, THRIKODITHANAM PANCHAYATH, CHANGANASSERY.

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2 SUJITH AGED 28 YEARS S/O. SUKUMARAN, KAILASH HOUSE, WARD NO.12, CHANGANASSERY, PAYIPAD, PERMANENT: KALLUPARAMBU HOUSE, WARD NO.12, CHANGANASSERY, PAIPAD.

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BY ADVS. SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. SRI.S.RANJIT (KOTTAYAM)

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Crl.Appeal No.945/15 & conn.cases

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RESPONDENT/PETITIONER: CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.

¶59

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.1152/2015(A), CRL.A.1370/2015, CRL.A.945/2015, CRL.A.959/2015(A), CRL.A.968/2015, CRL.A.580/2016, CRL.A.385/2018, THE COURT ON 5.9.2019 DELIVERED THE FOLLOWING:

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Crl.Appeal No.945/15 & conn.cases

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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CRL.A.No.1370 OF 2015

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AGAINST THE JUDGMENT IN SC 1241/2011 DATED 01-09-2015 OF ADDITIONAL SESSIONS COURT/SPL.COURT (SPE/CBI), THIRUVANANTHAPURAM

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APPELLANTS/ACCUSED NO.7 AND 10:

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1 AKASH SASIDHARAN @ RAJESH AGED 24 YEARS S/O SASIDHARAN, CHANGAMKULANGARA VEEDU, NALUKODI JUNCTION, WARD NO.13, PAYIPAD, CHANGANASSERY, KOTTAYAM DISTRICT.

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2 SHINO PAUL @ SHINO AGED 29 YEARS S/O PAULOSE @ SUNNICHAN, CHULLICKAL HOUSE, ILLATHUPARAMBU COLONY, WARD NO.13, PAYIPPAD PANCHAYATH, PAYIPPAD VILLAGE, CHANGANASSERY, KOTTAYAM DISTRICT.

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BY ADVS. SRI.JOMY GEORGE KUM.M .ANJU THOMAS SRI.DEEPAK MOHAN SRI.SEBASTIAN THOMAS

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Crl.Appeal No.945/15 & conn.cases

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RESPONDENT/COMPLAINANT:

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CENTRAL BUREAU OF INVESTIGATION THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS SUPERINTENDENT OF POLICE.

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R1 BY ADV. SRI.SASTHAMANGALAM S AJITHKUMAR, C.B.I.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.1152/2015(A), CRL.A.1163/2015, CRL.A.945/2015, CRL.A.959/2015(A), CRL.A.968/2015, CRL.A.580/2016, CRL.A.385/2018, THE COURT ON 5.9.2019 DELIVERED THE FOLLOWING:

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Crl.Appeal No.945/15 & conn.cases

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

¶84

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶85

¶86

THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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CRL.A.No.959 OF 2015

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AGAINST THE JUDGMENT IN SC 1241/2011 DATED 01-09-2015 OF ADDITIONAL SESSIONS COURT/SPL.COURT (SPE/CBI), THIRUVANANTHAPURAM

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APPELLANTS/ACCUSED NO.13:

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SABEER, AGED 29 YEARS, S/O.ABDUL KHADER KUNJU, THURUVASSERIL VEEDU, NEAR AMBALAKKADAVU MOSQUE, WARD NO.5, MANNANCHERY ALAPPUZHA DISTRICT.

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BY ADVS. SRI.SALIM V.S. SRI.S.SHANAVAS SRI.H.NUJUMUDEEN

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RESPONDENTS:

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CENTRAL BUREAU OF INVESTIGATION THROUGH SUPERINTENDENTOF POLICE, THIRUVANANTHAPURAM UNIT REPRESENTED BY SPECIAL PUBLIC PROSECUTOR CBI, HIGH COURT OF KERALA, ERNAKULAM. PIN 682 031.

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R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.1152/2015(A), CRL.A.1163/2015, CRL.A.1370/2015, CRL.A.945/2015, CRL.A.968/2015, CRL.A.580/2016, CRL.A.385/2018, THE COURT ON 5.9.2019 DELIVERED THE FOLLOWING:

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Crl.Appeal No.945/15 & conn.cases

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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 A.M.SHAFFIQUE

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¶103

THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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CRL.A.No.968 OF 2015

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AGAINST THE JUDGMENT IN SC 1241/2011 DATED 01-09-2015 OF ADDITIONAL SESSIONS COURT/SPL.COURT (SPE/CBI), THIRUVANANTHAPURAM

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CRIME NO.2/2010 OF CBCID, THIRUVANANTHAPURAM ,

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APPELLANT/ACCUSED NO.2:

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JAYACHANDRAN AGED 46 YEARS S/O THANKAPPAN, KUNNEL HOUSE, NEAR NALUKODI JUNCTION, WARD NO.3, PAYIPAD PANCHAYATH, CHANGANASSERY, KERALA.

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BY ADVS. SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. SRI.S.RANJIT (KOTTAYAM) RESPONDENT/PETITIONER:

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CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY THE STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.1152/2015(A), CRL.A.1163/2015, CRL.A.1370/2015, CRL.A.945/2015, CRL.A.959/2015(A), CRL.A.580/2016, CRL.A.385/2018, THE COURT ON 5.9.2019 DELIVERED THE FOLLOWING:

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Crl.Appeal No.945/15 & conn.cases

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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CRL.A.No.580 OF 2016

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AGAINST THE JUDGMENT IN SC 1241/2011 DATED 01-09-2015 OF ADDITIONAL SESSIONS COURT/SPL.COURT (SPE/CBI), THIRUVANANTHAPURAM

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APPELLANT/9TH ACCUSED:

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RAJEEV KUMAR S/O.RAJAN PILLAI, 30 YEARS,NADUMANNIL VEEDU, EAST OF AYYANKULANGARA BRIDGE,WARD NO.4, PAYIPPAD PANCHAYATH, CHANGANASSERY.

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BY ADV. SRI.K.V.SABU

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RESPONDENT/COMPLAINANT:

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CENTRAL BUREAU OF INVESTIGATION

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REPRESENTED BY STANDING COUNCEL FOR CBI,HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.1152/2015(A), CRL.A.1163/2015, CRL.A.1370/2015, CRL.A.945/2015, CRL.A.959/2015(A), CRL.A.968/2015, CRL.A.385/2018, THE COURT ON 5.9.2019 DELIVERED THE FOLLOWING:

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Crl.Appeal No.945/15 & conn.cases

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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CRL.A.No.385 OF 2018

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AGAINST THE JUDGMENT IN SC 1241/2011 OF SPE/CBI COURT, THIRUVANANTHAPURAM DATED 1.9.2015

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APPELLANT/ACCUSED:

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SATHEESH KUMAR, C.NO.349 S/O JOHNSON, CENTRAL PRISON, THIRUVANANTHAPURAM.

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BY ADV. S. SREEDEV (STATE BRIEF)

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RESPONDENT/COMPLAINANT:

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CENTRAL BUREAU OF INVESTIGATION (CBI)

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R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.1152/2015(A), CRL.A.1163/2015, CRL.A.1370/2015, CRL.A.945/2015, CRL.A.959/2015(A), CRL.A.968/2015, CRL.A.580/2016, THE COURT ON 5.9.2019 DELIVERED THE FOLLOWING:

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Crl.Appeal No.945/15 & conn.cases

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J U D G M E N T

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CRL.A.945/2015, CRL.A.959/2015, CRL.A.968/2015, CRL.A.1152/2015, CRL.A.1163/2015, CRL.A.1370/2015, CRL.A.580/2016, CRL.A.385/2018

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Shaffique, J.

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These appeals are filed by accused 1, 2, 4, 5, 7, 8, 9, 10, 11, 12 and 13 challenging the judgment passed in in SC No.1241/2011 of Additional Sessions Judge/Special Judge (SPE/CBI), Thiruvananthapuram. The CBI had charge-sheeted 14 accused alleging commission of offence punishable under Sections 120B r/w Ss.143, 144, 323, 324 and 506(2) of I.P.C.and S.5 r/w 9(B)(b) of the Explosives Act, 1884.

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All the accused were convicted and sentenced to undergo imprisonment for a period of 3 years for offence u/s 120B r/w 143, 144, 323, 324 and 506(2) of I.P.C. and 6 months each for offence u/s 143 of I.P.C. Accused Nos. 3 and 4 were sentenced to undergo rigorous imprisonment for one year each

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for conviction u/s 144 of I.P.C. The sentences were to run concurrently and the accused were entitled for set off u/s 428 of Cr.P.C.

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Crl.Appeal No.945/15 & conn.cases

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Learned counsel for the appellants raised separate arguments inter alia contending that the appellants/accused were not involved in any of the offences as alleged and the prosecution was unable to prove beyond reasonable doubt their involvement in the aforesaid crimes.

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On the other hand, learned Public Prosecutor while supporting the judgment of the trial Court submitted that the oral testimony of PW9, PW10 and PW11 clearly proves the involvement of the accused to the crime.

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The 1^st accused (Abi) had a confrontation with one Shameer during July, 2009 in connection with settlement of a motor cycle accident. A crime also came to be registered against Shameer and others at the instance of 1^st accused. Shameer wanted Abi to withdraw the said case for which he arranged a person by name Kurangu Nissar who threatened the 1^st accused. On 19/8/2009, 1^st accused, his brothers and a few others were chased by Shameer and his associates in a motor cycle. Kurangu Nissar again threatened the 1^st accused on 20/8/2009 and stated that he will blow off his house. Expecting an attack from Kurangu Nissar, 1^st accused made arrangements with other known

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Crl.Appeal No.945/15 & conn.cases

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goondas and associates and they decided to attack Shameer, Kurangu Nissar and others. For that purpose, they arranged two tempo travellers, a Scorpio car and a Santro car and all the accused along with a few others proceeded from Changanassery to Mannancherry. En route they alighted at Kondoor Bar and restaurant and consumed liquor. On their way, one of the tempo traveller got stranded, as its rear side wheel slipped off. It was near a place called Ponga. The vehicles which went ahead of the said tempo traveller were called back and all the vehicles along with the accused were awaiting repair of the wheel. In the meantime, a motor bike rider one Biju Pushkaran (PW7) came near their vehicle and he was enquiring as to what happened to the tempo traveller. Immediately, a Ford Endeavour car came in a high speed in a rash and negligent manner and it hit on the motor cycle of Biju Pushkaran at or about 12.05 hours during night. The Ford Endeavour car driven by one Paul M. George. He did not stop and they drove away. On getting agitated about the same, the second accused instigated the group to obstruct the driver and car from proceeding ahead and to catch hold of the driver. Hearing the exhortation of the first accused, accused Nos.

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Crl.Appeal No.945/15 & conn.cases

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3, 4, 5, 7, 8, 9 and 10 got into the other tempo traveller. A12 took

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the wheel and they chased the Ford Endeavour Car. Paul M. George stopped the Ford Endeavour car after about 1½ kms as its front bumper had broken and was dragging on the road. While they were inspecting the broken bumper of their vehicle, the accused who were chasing the Endeavour car reached there. Their occurred a confrontation and during such time, 3^rd accused took out his knife and stabbed Paul M.George repeatedly causing two incised penetrating wounds on the right side of the back of the trunk and two incised penetrating wounds obliquely on the left side of the back of the trunk. 4^th accused threw a knife towards Manu which hit on his left hand above his elbow resulting in the injury. Manu ran away from the scene into the marshy land adjacent to the road and hid there. In the process of stabbing, A3 also got injured on his left palm below the thumb. A few others also reached the scene of crime in a Scorpio car along with the second accused. All of them saw Paul M.George lying down with pain and profusely bleeding. Some of them wanted to shift him to the hospital. But second accused dissuaded them and asked them to go back to the Scorpio car. Second accused also directed

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Crl.Appeal No.945/15 & conn.cases

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the others to immediately get into the vehicle and they fled away from the scene. Two other associates of Paul M.George Omprakash and Puthenpalam Rajesh reached the scene of crime immediately in another scorpio car driven by Shibu Thomas. Omprakash got down from the Scorpio car in which he was travelling. He enquired with the second accused as to what was happening who in turn stated that there was stabbing and he was asked to get away from the scene. In the meantime, all the accused fled away from the scene in the vehicles brought by them. On seeing Paul M.George lying down profusely bleeding, he was taken to the rear side of the Scorpio car. Manu who was hiding was helped to the Scorpio car. Paul M.George was rushed to the Medical College Hospital at Alappuzha in the Scorpio car driven by Shibu Thomas. Doctor declared that he was brought dead at 00.54 hours on 22/8/2009. First accused and his group reached the house of 1^st accused at Mannanchery and the injured left palm of the 3^rd accused was washed and tied with cloth and bloodstained wearing apparels of the other accused were changed. The blood stained clothes and knife of accused 3 and 4 were packed in a polythene cover along with the crackers which

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were removed from the tempo traveller and left it with the 1^st accused at his house and thereafter they left from the scene in small groups. The original plan of the accused and other members of the gang to attack, Kurangu Nissar, Shameer and others was not accomplished.

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Two separate charges were file by the investigating agency. One for causing the death of Paul M.George and another for criminal conspiracy to attack Kurangu Nissar, Shameer and Sali (brother of Shameer). In these appeals we are concerned with the case relating to criminal conspiracy.

¶176

Prosecution alleged that the accused were involved in hatching a criminal conspiracy to attack Kurangu Nissar, Shameer and Sali. First, let us examine the evidence relating to the controversy with Kurangu Nissar, Shameer and Sali.

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PW10 is Shameer. He deposed that his brother Sali (PW11) was conducting a hotel in the name and style “Friends Hotel” at Kalavoor near National Highway 47. There was an incident by which his Ford Icon Car was hit by a scooter driven by a person known as Pandi Mohanan. The car sustained damage. Mohanan agreed to pay the repair charges for his car. When

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Crl.Appeal No.945/15 & conn.cases

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Mohanan's son came to his shop, PW10 demanded 2,000/- as repair charges. During night hours, on the said day, the first accused along with three others came to his shop and abused him. They also referred the name of PW9, Kurangu Nissar. On the next day, he received .1,500/- and the dispute was resolved. PW10 told Kurangu Nissar about the said incident. He in turn went to the house of first accused and questioned him about the incident. PW10 further deposed that the first accused along with another person Aneesh came to his shop and asked for a glass for consuming liquor. Since he did not oblige, A1 inflicted a blow on him using an iron rod. Aneesh took out a knife and warned them. Kurangu Nissar who was in a nearby hotel asked A1 to stab him. In the meantime, PW11 called the police and first accused along with Aneesh left the scene. PW10 sustained injury on his right hand. He proceeded to Medical College Hospital, Alappuzha. Police was informed about the incident, but they refused to register a case. He therefore filed a private complaint before the JFCM Court, Alappuzha. He further deposed that three days prior to the murder of Paul M.George, first accused along with Riyas and Baiju came to the hotel of PW11 and intimidated that PW10

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would be done away with before the next Ramzan. PW11 filed a petition before the Alappuzha Police Station. The police called the respective parties for a compromise. First accused did not come to the police station and he sent word that he is not interested in settling the case. However, the police did not take any further action. He later had come to know that first accused was trying to attack him and that he had mobilised his friends. Knowing about the aforesaid incident, Kurangu Nissar went to the house of first accused on 20/8/2009. Father of first accused made a complaint to the Dy.S.P of Police, Cherthala against PW9 and PW11. From his evidence, what is borne out is that there was a confrontation with A1 and PW10. PW9, Kurangu Nissar had interfered in the mater. PW11, brother of PW10 also gave evidence in accordance with the testimony of PW10. The version of PW10 and PW11 was again supported by the testimony of PW9. From the aforesaid evidence, it is rather clear that the first accused entertained a grudge against PW9, PW10 and PW11. Though an attempt had been made by the counsel for accused to point out that the issue between them had been settled, from the testimony of PW9 to PW11, it is rather clear that the issue remained as such and there

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Crl.Appeal No.945/15 & conn.cases

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was enmity between A1 and PW9, PW10 and PW11. Though some contradictions were pointed out by the defence with reference to the evidence of PW9 to PW11, those are not enough to affect the credibility of the factual aspects involved in the matter. This evidence would only indicate that first accused had entertained enmity against PW9 to PW11.

¶187

The next question is whether the accused had conspired together to commit the crime as stated by the prosecution. Prosecution case is that accused 1 and 2 proceeded to Changanasserry on 20/8/2009 for hiring two tempo travellers with a view to transport sufficient number of goondas to Mannancherry and the purpose of the conspiracy was to attack PW9 to PW11.

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PW36 is the owner of two tempo travellers. Exts.P75 and P79 are the agreements by which he had obtained ownership of the vehicles. He deposed that he had entrusted the vehicles to one Shihab for day to day management of the vehicles in terms of Ext.P83 agreement. First accused had hired the two tempo travellers and the drivers were accused Nos.12 and 13. Shihab died during the pendency of the case. PW36 has given evidence

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stating that on the previous day of the death of Paul M.George, he had to contact Shihab regarding the availability of vehicles for catering requirement. Shihab informed him that the vehicles were at Changanasserry and it will not be available for two weeks. He further deposed that a day after Paul M.George died, police enquired about the vehicles and he was asked whether the vehicles were involved in any accident at Pallathuruthy. He offered to give the information after contacting Shihab. Shihab informed him that the back wheel nut of the vehicle was lost resulting in detachment of one wheel and the vehicle got stranded at Pallathuruthy. On the next day, the police informed that the vehicles were parked at Mannancherry and the police had taken it to the police station and later to A.R. Camp. He also proved Exts.P76 to P78, P80 to 84 which are the records relating to the tempo travellers and he had identified the same.

¶192

PW21, Manager of Aswin Petrol Pump proved Ext.P41 bill book seized by the Investigating Officer as per Ext.P42 mahazar. Fuel had been sold to the two tempo travellers and those bills are exhibitted as Ext.P41(a). The pump was in the AlappuzhaChanganasserry road. Fuel was taken on 20/8/2009 and it was

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Crl.Appeal No.945/15 & conn.cases

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proceeding towards Changanasserry.

¶196

PW20 Nixon was also a member of the group, at the time when the conspiracy was hatched between the accused and certain others. He deposed that on 20/8/2009 at or about 5 p.m, himself and his group reached near Pushpagiri Medical College Hospital as per the request of PW8. During the morning, PW8 told him that A1 who is a friend of A2 is having some dispute with PW9 and they should go to Alleppey and for that purpose some persons should be mobilised and accordingly he had reached there with his group. Around 8.30 p.m, PW8 and PW2 came there in a Scorpio car driven by PW2. PW20 along with his companions, namely Kottathoor Suresh, Mandan Suresh and Kochumon boarded the car and after talking for about 10 minutes, they were taken to a place near N.S.S. College and they alighted near the College. At that time two Tempo Travellers were found parked there and some persons were found sitting inside and some others were standing outside. PW20 and his companions were asked to occupy the Tempo Travellers parked there and PW8 and PW2 went to collect some others. After a span of 15 minutes, A2 came and told that they should go to Alleppey to attack Kurangu

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Nizar and others at their residence and 2 to 3 rounds of beating should be inflicted. Hearing this, himself and his companions discussed the matter and realising that they would run into trouble, they proceeded to nearby Perunna Bus Stop and after some time they boarded a KSRTC bus and went to Thiruvalla. In the meanwhile PW8 telephoned him and he informed their decision to disassociate from the proposed action. But PW8 requested them not to leave Thiruvalla and volunteered to come to Thiruvalla. After some time, PW8 met them at a place known as Mazhuvanadu and he was told about the requirement made by A2. Hearing this, PW8 contacted A2 and some time afterwards, A2 reached there in a Santro car and asked why they have decided to return. When they expressed their unwillingness, A2 told that there is no serious problem and the dispute is relating to a boundary and they need just accompany. Since it was too late, they went home promising to come again on the next day. On 21/8/2009 at or about 9 a.m, PW8 and Benoy came to his house in a car and he boarded the vehicle and on the way Mandan Suresh was also taken. They alighted near Alis Plaza, a lodge situated opposite to Pushpagiri Medical College Hospital and PW8

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and Benoy left. Rooms were arranged on the second floor. A1, A11, two drivers of Tempo Travellers were inside the room. PW20 and his companions went inside the room and talked with A1 and others and shared the liquor brought by him. At or about 5 p.m, A1 told that they can start after some time. Since the time of departure was changed several times, himself and Suresh decided not to accompany A1 and his group. They decided to obtain 20,000/- from A1 and quit. When A1 was asked to pay money, he conveyed that requirement to A2. In the meanwhile, PW20 and his companions came down and after some time A2 reached there and talked with them. When they insisted payment of 20,000/- A2 expressed his readiness to pay `5,000/- and promised to pay the balance amount after completing the work. Thereafter A2 left in his Santro car and after a span of ½ to ¾ hours, PW8 and Benoy came there in a Scorpio Car along with 3 to 4 youngsters. PW20 identified A1, A11, A12 and A13 correctly before court as the persons he met at Atlas Residency on 21.8.2009.

¶203

The evidence of PW18 and PW19, the Manager and Receptionist working at Atlas Residency, a lodge, would prove

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that a group of persons had taken room at 8.30 a.m. and vacated at 5.30 p.m. Accused Nos. 1, 11, 12 and 13 were identified by these witnesses. The documents relating to the lodge register were also produced and proved. The guest register is marked as Ext.P38 and the relevant entries were marked as Ext.P38(a).

¶207

PW17 is Shyam. He deposed that on 21/8/2009 A2 met him told him that a case is to be settled at Alleppey. He was asked to mobilise 3 to 5 persons. Later at about 6.45 p.m, A1 came in a Santro car, and he along with Satheesh, Sameer and Manoj went along with A2. Ajayagosh also joined them. A3 contacted him and offered to join them. On the way A2 informed him that they are planning to go to Alleppey to avenge his friend. When they reached N.S.S. College junction, he saw two tempo travellers and a scorpio car. A3 was there with A8. He saw PW1 who was an accused in a murder case. He also saw A4, A10, A7, A9 and A5 inside the tempo traveller. He sensed danger and got down from the vehicle. He asked his friends not to proceed further and they proceeded to a nearby bar. He also told A3 and A8 about the danger in the proposed task and advised A3 to withdraw. However, A3 proceeded towards the place where the

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vehicles were parked. He later went home after having liquor and seeing a movie on the day of the incident. He identified A3 to A10. A2 was absent on that day.

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PW15 Ajaya Ghosh also gave evidence on similar lines. They were also supposed to be part of the gang which proceeded to Alappuzha, but they backed out sensing danger. PW17 had also identified A2 to A10 before Court and PW15 has identified accused 2, 3, 5 and 9. The evidence of PW15 and PW17 corroborates the testimony of PW20. In the light of the aforesaid evidence, the fact that a conspiracy was hatched up for attacking PW9, PW10 and PW11 stands proved.

¶212

PW3 to PW6 were also members of the gang which proceeded to Mannancherry from Changanasserry. While they were enjoying at the house of PW5's maternal aunt, they got an invitation from PW2 to accompany a group to show strength. PW2 and PW8 came in a Scorpio car owned by the 2^nd accused and PW3 to PW6 proceeded to Thiruvalla. PW8 handed over `5,000/to the companions of PW20 for which PW8 alighted near Atlas Residency. When PW8 alighted, A13 boarded the car from Thiruvalla and PW2 drove them to NSS College Junction. A13 got

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down near the tempo traveller and PW2 to PW3 to PW6 to the nearby market place. They went to the bar hotel, cinema theatre etc. At about 9.30 p.m, they were told that they need not participate in the action, but they should remain with the gang. Accordingly, PW3 to PW6 proceeded to Mannancherry. At 10.30 p.m, they proceeded to Mannancherry from Changanassery in 3 vehicles, a Santro car, a Scorpio car which were owned by 2^nd accused and two tempo travellers brought by 1^st accused from Alleppey. He also narrated the boarding status in each vehicle. Further they deposed that they have gone to Kondoor bar, had liquor and then proceeded to Alleppey.

¶216

PW7 deposed that the Ford Endeavour car has hit on the rear side of his motorcycle while he was enquiring about the people who was found gathered near the tempo travellers. The Ford Endeavour car sped away and he heard somebody shouting to catch the car. After the vehicle went towards Changanasserry two three persons were available with him. He informed the matter to the Changanasserry police station and after enquiring about the place of accident, police asked him to contact Nedumudi police station. He contacted his friend Vinod over

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mobile and sought his help. While he was waiting for his friend, the white coloured vehicle which went towards east came back and persons inside the vehicle were shouting that stabbing and chopping took place, and the others were asked to board the vehicle. All of them boarded the vehicle and they proceeded towards Alappuzha. He had a fracture to his clavicle bone. From the evidence of PW7, it is rather clear that the group had chased the Endeavour car in a tempo traveller again followed by some of them in the Scorpio car. Later they came back and hurriedly proceeded towards Alappuzha. PW7 was examined by PW34 at Medical College Hospital, Alappuzha. He sustained the following injuries as spoken to by PW34.

¶220

“1) Abrasion on the right elbow joint.

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2) Abrasion on the right side of abdomen.

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3) Abrasion over the right leg.

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4) Fracture on the left clavicle bone, displaced.”

¶224

We have already heard another batch of cases involving

¶225

the incident in which Paul M.George was murdered. There cannot be any dispute regarding the said incident as well. But, as far as this case is concerned, the question is whether there was a conspiracy hatched between the accused to attack PW9 to PW11

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at Mannancherry. Overall consideration of the evidence would prove that PW1, PW2 and PW3 were engaged by the 2^nd accused to mobilise available goondas and also participate in the action. PW1 remained at the accident spot till the tempo traveller returned carrying the members of the unlawful assembly which chased the Endeavour car. He also gave evidence stating that A3 and A4 were in possession of knives and he witnessed the same when they reassembled at the house of first accused after the murder of Paul M.George. He had given in detail, all the aspects involved in the conspiracy and the subsequent events that followed. PW2 is also an approver. He was instrumental in roping in PW3 to PW6 into the gang. He also deposed that it was at the instance of the 2^nd accused that he had made all the arrangements. PW8 is yet another approver who also has given evidence in the manner in which the prosecution had projected the case. Evidence of PW3 to PW6 is sufficient enough to implicate the accused for the aforesaid crimes.

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As rightly pointed out by the trial Court, the plan conveyed by 2^nd accused to PW1, PW2, PW17, PW20 and PW3 to PW6 clearly establish the existence of conspiracy and its object.

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The fact that A1, A11, A12 and A13 stayed at Changanasserry during the night of 20/8/2009, that they hired two tempo travellers, arranging rooms for their convenience through PW2 and PW8 at Thiruvalla during the next morning and their efforts to mobilise sufficient number of persons are all relevant facts which proves the conspiracy to commit a criminal act. Later all of them assembled at Mannancherry and attempted to destroy the evidence of commission of murder.

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Though it is contended that approvers' evidence cannot be taken for granted, there is sufficient corroboration by the evidence of other witnesses whose evidence we have already discussed. Therefore the evidence of approvers' stands corroborated by sufficient corroboration of other witnesses who did not participate in the crime.

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The prosecution has also relied on scientific evidence given by PW40 especially the thumb impression of first accused seen in tempo traveller bearing No. KL-02R 3497. Exts.P110 and 112 are the reports. The Santro car also contained finger impressions of the first accused.

¶235

Taking into consideration the totality of the aforesaid

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evidence, we are of the view that the Court below did not commit

¶239

any error in convicting and sentencing accused 1 to 11 and 14 as above. We do not find any reason to interfere with the said judgment.

¶240

But as far as accused 12 and 13, the drivers of the tempo travellers are concerned, though their presence is proved, their participation in the conspiracy is not proved.

¶241

In the result:-

¶242

(i) Crl.Appeal Nos. 945/15, 968/15, 1163/15, 1370/15, 580/16 and 385/18 are dismissed.

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(ii) Crl.Appeal Nos.1152/15 and 959/15 are allowed setting

¶244

aside the conviction and sentence of accused 12 and 13.

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(iii) The bail bonds of the accused who are already on bail

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shall stand cancelled.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

N.ANIL KUMAR

True Copy

JUDGE

PS to Judge

Satheesh Kumar, C.NO.349 v. Central Bureau of Investigation (Cbi)

Case brief

What is this about?

What did the court decide?

Satheesh Kumar, C.NO.349 v. Central Bureau of Investigation (Cbi)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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