The Kerala High Court dismissed a state appeal against an acquittal. Upholding the Sessions Court's view, the Bench held that the prosecution failed to prove any direct or indirect involvement of the three accused in the murder case beyond reasonable doubt.
The appeal filed by the State is dismissed and the acquittal of the accused is upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940 CRL.A.No. 95 of 2014
AGAINST THE JUDGMENT IN SC 139/2012 of SESSIONS COURT, KOZHIKODE DIVISION DATED 06-12-2012
APPELLANT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR
RESPONDENTS/ACCUSED 1 TO 3:
1 KANTHAN, S/O.MARIMUTHU S/O.MARIMUTHU, MELEKULAM, PALAYAM, KOTTAI.P.O., THIRUNELVELI DISTRICT, TAMILNADU-627002.
2 PALRAJ
S/O. SUBBAYYANADAR, DOOR NO. 7/59, B. MELEKULAM, MELOOR WEST STREET, PALAYAMKATTA, PIN-627002.
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3 SUDALAI S/O. GOPALAN,1/17, VADAKKETHERU, PALAYAM, CHETTIKULAM, PERIKITTUMANAGAM.P.O., THIRUNELVELI. PIN-627756.
BY ADVS. SRI.T.R.HARIKUMAR SMT.V.P.SATHI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2019, THE COURT ON 21.02.2019 DELIVERED THE FOLLOWING:
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J U D G M E N T
Shaffique, J.
This appeal is preferred by the State of Kerala challenging the verdict of acquittal passed by the 1st Additional Sessions Judge, Kozhikode in S.C.No. 139 of 2012 by which all the accused were acquitted observing not guilty.
the Indian Penal Code, 1860 (for short 'IPC').
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investigation and trial are concerned: The incident happened on 17/11/1996. Altogether there were five accused. PW1 gave Ext.P1 FIS to PW16 Head Constable of Kasaba Police Station on the same day and based on Ext.P1, PW16 registered Ext.P1(a) FIR. PW17 who is the then C.I. of Police, Kasaba Police Station took over the investigation. He prepared Ext.P5 inquest report and Ext.P8 scene mahazar. He seized material objects. CW44 who is the C.I. of Police, Kasaba Police Station arrested the accused, identified MO1 to MO3 and seized the car in which the assailants came from Tamil Nadu. He submitted the report to conduct the Test Identification Parade. He questioned the witnesses as well. The investigation was subsequently handed over to CBCID. PW19 and PW20 continued the investigation and PW21 completed the investigation and laid the charge-sheet.
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to Sessions Court, Kozhikode and numbered the case as S.C. 744/2004. The case against other accused was split up and numbered as C.P. 36/2003. S.C. 744/2004 against the second accused John was made over to 1st Additional Sessions Judge, Kozhikode and after trial, the Court found John (2nd accused in the original case) not guilty and was acquitted under Section 232 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C'). Johnson, the first accused in the case, was reported dead and the case against him got abated. 3rd and 4th accused in the original case were arrested and produced before Court and cognizance was taken against them as C.P. 62/2011 and C.P. 22/2012. 5th accused subsequently surrendered and his case was numbered as C.P. 26/2012. On committal, the Sessions Court, Kozhikode renumbered the cases as S.C. 139/2012, 564/2012 and 565/2012 and made over to the 1st Additional Court. S.C. 564 and 565 of 2012 were clubbed together with S.C. 139 of 2012 and tried. The appeal by the State is against the impugned judgment passed therein.
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accused respectively. Prosecution allegation shows that A1 and A2 in the original case were attributed with overt acts. A3 to A5 in the original case who are A1 to A3 in the present case are not even alleged with any overt act by the prosecution. The first accused in the original case, Johnson is no more and the case against him got abated. The second accused in the original case, John was acquitted by the Court. As stated already, all the accused herein were acquitted by the Court below. We have to see whether the said decision of the trial Court is justified in the eye of law.
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finding of the Court below. With these basic aspects in mind, let us consider the impugned judgment and the evidence on record in detail.
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crime.
(i) Even according to the prosecution, no overt act or participation is attributed to the accused herein. Overt acts were attributed to A1 and A2 in the original case out of which the former is no more and the latter is acquitted. Prosecution does not have a case that the accused herein entered the compound of living of the deceased.
(ii) During Test Identification Parade conducted by PW12 the Magistrate, PW2 has not identified first and second accused. In his earlier statement to police, PW2 stated that he had witnessed four persons coming to the house one week prior to the date of incident. He had also stated that he could identify Johnson (A1), John (A2) and the person who was sitting in the TATA Sumo car and also the person who was standing near to the car. But in Court, PW2 gave a go-bye to the same and a new case is advanced that in addition to Johnson and John, he can identify all the three accused. Trial Court is of the view that PW2 who
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witnessed the incident 16 years back at a time when he was of 13 years of age developed the story only to implicate the three accused arrayed in this case. During Test Identification Parade, PW2 did not identify the 3rd accused in this case. Though not marked, the Court below looked into the TIP report by invoking S.294(3) of the Code to arrive at its conclusion.
(iii) PW3 turns hostile to the prosecution.
(iv) PW4 identified first accused only at one time and failed to identify 1st and 2nd accused for two times at the time of TIP. Hence, much reliance cannot be placed on his testimony.
(v) PW5 was aged only 12 years at the time of the incident. His statement that he had seen the accused running away from the scene as per the directions of Johnson and John was taken six years after the incident. No explanation is offered for the said delay. PW5 stated before CW32 that he does not know third accused previously and he cannot identify him by sight. When he is not in a position to identify the 3rd accused just after the incident, his identification of the 3rd accused based on a statement given to the police after six years cannot be relied upon.
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(vi) The presence of the accused herein were far away
from the spot where the incident took place, and there is nothing to show that there was any common intention or common object for the accused to commit the murder of the deceased.
Appeal filed by the State is dismissed.
Sd/-
A.M.SHAFFIQUE
Rp //True Copy// PS to Judge
JUDGE Sd/A.M.BABU JUDGE
2 issues framed by the court
Whether the High Court should disturb the trial Court's acquittal finding in the appeal against conviction.
Whether the prosecution proved the accused's involvement in the crime beyond reasonable doubt.
2 provisions across 2 enactments
State of Kerala
Kanthan
Palraj
Sudalai
A.M. Shaffique
A.M. Babu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
