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IN THE COURT OF SESSION, KOZHIKODE DIVISION

Present : R.Narayana Pisharadi, Special Additional Sessions Judge (Marad Cases), Kozhikode.

Tuesday, the 28 th day of January, 2014 (8 th day of Magha, 1935, S.E)

Sessions Case No. 867/2012

1)

Complainant

:

State : Represented by the

 

Deputy Superintendent of Police,

Crime Branch C.I.D, HHW-III, Kozhikode.

CBCID Crime No.406/CR/HHW-III/KKD/2012.

(Crime No.433/12 of Vatakara Police Station).

2)

Name of Accused

:

1. Anoop S/o. Gangadharan (A1), Aged 30/12, Mangalassery House, Puthoor Amsom, Chendayad, Padanthazha, Kannur.

2. Manoj Kumar @ Kirmani Manoj (A2), S/o. Gangadharan, Aged 30/12, Naduvil Malayatte House, Panthakkal P.O, Mahe.

3. N.K. Sunil Kumar @ Kodi Suni (A3), S/o. Surendran, Aged 29/12, Meethale Chalil House, Sharon Villa, Chokli Amsom, Nidumbram, Kannur District.

4. Rajeesh Thundikkandi @ T.K (A4), S/o. Velayudhan, Aged 33/12, Karayintavida House, Pathayakunnu P.O, Pattiam, Puthiyatheruvu, Kannur District.

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5. K.K. Muhammed Shafi @ Shafi (A5), S/o. Moidu, Aged 27/12, Parambath House, Near Chokli Oriental School, Kannur District.

6. Sijith. S @ Annan Sijith (A6) S/o. Surendran, Aged 23/12, Palorath House, Chambad P.O, Arayakkool, Kannur District.

7. K. Shinoj (A7) S/o. Achuthan, Aged 28/12, Kannattinkal House, Ashirvad Nivas, Kohinoor, Pallur, Mahe.

8. K.C. Ramachandran (A8) S/o. Kelappan, Aged 52/12, Jayasura House, Kunnummakkara P.O, Kozhikode District.

9. C.H. Ashokan (A9) S/o. Aandi, Aged 60/12, Arunima House, Chuttaprath, Onchiyam Post, Vatakara, Kozhikode District (Died).

10.K.K. Krishnan (A10) S/o. Bappu, Aged 66/12, Kadathalakkandy House, Kunnummukkara Post, Kozhikode District.

11.Manojan @ Trouser Manojan (A11) S/o. Govindan, Aged 47/12, Vadakkeyil House, Cheruparamba Post, Kolavallur Amsom, Thuvvakkunnu, Kannur.

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12.Geothi Babu, S/o. Krishnan (A12) Aged 51/12, 'Krishna Nivas', Parambath House, Cheruparamba Post, Kunnoth Paramba, Kannur District.

13.Pandinjare Kunhikkattil Kunhanandan (A13) S/o.Kannan Nair, Aged 62/12, Kelothantavida, Kolavallur Post, Kunnoth Paramba Panchayath, Kannangode.

14.P.Mohanan @ Mohanan Master (A14) S/o. Raman, Aged 58/12, Pookkotte House, Vattoli Post, Kakkattil, Kozhikode District.

15.Shibu.P.C S/o. Govindan (A16) Aged 30/12, Marajintavide House, Pattiam, Pachappoyil Post, Muthiyanga, Now residing at Vannathan Veettil, Naravoor.

16.Sreejith. K, S/o. Janu( A17), Aged 30/12, Meethale Purayil House, Muthiyanga Post, Pattiam.

17.P.V. Rafeek @ Vazhappapadachi Rafeek(A18) S/o. Hamsa, Aged 36/12, Valiya Puthalath House, Pallur Post, Mahe.

18. Aswanth C.K. @ Achu (A19) S/o. Rajan, Aged 20/12, C.K. House (Chettiyamkandy), Kopparakkalam Quarters, Naluthara Post, Pallur, Mahe.

19.K.P. Dilshad (A20) S/o. Rahim, Aged 27/12, Kollamparambath House, Koroth Road, Azhiyoor Post, Vatakara, Kozhikode District.

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20.P.K. Muhammed Fasalu @ Fasalu (A21) S/o. Moidu, Aged 28/12, Paraparambath Meethal House, Koroth Road, Azhiyoor Post, Vatakara, Kozhikode District.

21.Sanoop. M.P (A22) S/o. Balakrishnan, Aged 25/12, Parayullathil House, Thattolikkara, Chombala Post, Vatakara, Kozhikode District.

22.C.K. Rajikanth @ Koorappan (A25) S/o. Raghavan, Aged 30/12, Chirunnamkandiyil, Kodiyeri Amsom, Paral, Kannur.

23.Rajith. C, S/o. Rajan (A27) Aged 23/12, Anantham House, Kodiyeri, Paral Post, Kannur.

24.P.M. Rameesh @ Kuttu (A28) S/o. Ravi, Aged 21/12, 'Remyatha Nivas', Azhiyoor Post, Kallaravath, Vatakara.

25.K.P. Dipin @ Kuttan @ Dipi (A29) S/o. Dileepan, Aged 26/12, Kunnummal House, Kottamalakunnu, Azhiyoor Post, Vatakara Village.

26.Raveendran M.K, S/o. Chathu (A30) Aged 47/12, Padayamkandy House, Eramala Village, Orkkattery, Kozhikode District.

27. Pradeepan M.K @ Lambu (A31) S/o. Gopalan, Aged 34/12, Maram Kunnummal House, Chokly Post, Kannur.

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28.Shanoj @ Kelan (A33) S/o. Kunhiraman, Aged 32/12, Kizhakkeyil House, Muthiyanga, Pattiam Amsom, Kannur District.

29. Jijesh Kumar, S/o. Gangadharan (A36) Aged 28/12, Ottangadi House, Panniannur, Kanal Road, Therambath Vayal, Chokli.

30.Shaju. N.M, S/o. Govindan (A37) Aged 37/12, Mavullor Meethal House, Chokly Post, Punathil Mukku, Kannur District.

31.M. Abhinesh @ Abhi (A39) S/o. Ashokan, Aged 28/12, Kattil Parambath Maroli House, Moozhikkara Post, Kodiyeri.

32.Saneesh. M, S/o. Chandran (A41) Aged 27/12, Murikkoli House, Kunduchira, Ponniyam West Post, Kannur.

33.C. Babu, Chalil, S/o. Balan (A42) Aged 36/12, Grantma House, Tholambra Post, Maloor, Koothuparamba, Kannur.

34.Sreejith. K, S/o. Sreedharan (A48) Aged 25/12, Mookkath House, Muzhakkunnu Amsom, Mudakkozhi, Kannur.

35. Sudheesh. M, S/o. Sundaran(A49) Aged 23/12, Nadukkandy Parambath House, Muzhakkunnu Amsom, Mudakkozhi, Kannur.

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36.P. Jigesh, S/o. Kumaran (A50) Aged 25/12, Jiji Nivas House, Muzhakkunnu Amsom, Mudakkozhi, Kannur.

37.K. Dhananjayan (A70) S/o. Krishnan Nair, Aged 53/12, Arayalppurath House, Naravoor, Koothuparamba.

3)

Charge

:

Under sections 143, 147, 148, 302 read with 149 and 465, 471, 118, 201, 212, 120B, 109 and 115 I.P.C and sections 3 and 5 of the Explosive Substances Act, 1908.

4)

Plea of the accused

:

Not guilty.

5)

Finding

:

A10, A12, A14, A16, A17, A19, A20, A21, A22, A25, A27, A28, A29, A30, A33, A36, A37, A39, A41, A42, A48, A49, A50 and A70 are found not guilty of the offences charged against them and they are acquitted u/s 235(1) Cr.P.C. A1 is

found guilty of the offences punishable u/s. 143,

147 and 302 r/w 149 I.P.C. A2 is found guilty of

the offences punishable u/s. 143, 147, 148 and

302 r/w 149 I.P.C and u/s 5 of the Explosive

Substances Act, 1908. A3 is found guilty of the offences punishable u/s. 143, 147, 148 and 302 I.P.C and u/s. 3 of the Explosive Substances

Act, 1908. A4, A5, A6 and A7 are found guilty of the offences punishable u/s. 143, 147, 148 and

302 I.P.C. A 8, A11 and A13 are found guilty of

the offence punishable u/s 120B r/w 302 I.P.C. A18 is found guilty of the offence punishable u/s. 302 r/w 109 I.P.C. A31 is found guilty of the offence punishable u/s. 201 I.P.C.

6) Sentence or order : (1) A1 is sentenced to imprisonment for life and

to pay a fine of Rs.50000/-. I.D.R.I. for a period

of one year for the offence punishable u/s. 302

r/w 149 I.P.C. He is also sentenced to undergo

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R.I. for a period of six months for the offence punishable u/s. 143 I.P.C and R.I. for a period of one year for the offence punishable u/s 147 I.P.C.

(2) A2 is sentenced to imprisonment for life and

to pay a fine of Rs.50000/-. I.D.R.I. for a period of one year for the offence punishable u/s. 302 r/w. 149 I.P.C. He is also sentenced to undergo R.I for a period of six months for the offence punishable u/s. 143 I.P.C and R.I. for a period of one year for the offence punishable u/s. 147 I.P.C and R.I. for a period of two years for the offence punishable u/s. 148 I.P.C. He is also sentenced to undergo R.I. for a period of five years and to pay a fine of Rs.10000/ - and I.D.R.I. for a period of six months for the offence punishable u/s. 5 of the Explosive Substances Act, 1908.

(3) A3 is sentenced to imprisonment for life and

to pay a fine of Rs.50000/-. I.D.R.I. for a period of one year for the offence punishable u/s. 302 I.P.C. He is also sentenced to undergo R.I. for a period of six months for the offence punishable u/s. 143 I.P.C and R.I. for a period of one year for the offence punishable u/s.147 I.P.C and R.I. for a period of two years for the offence punishable u/s. 148 I.P.C. He is also sentenced to undergo R.I. for a period of ten years and to pay a fine of Rs.20000/- and I.D.R.I. for a period of one year for the offence punishable u/s. 3 of the Explosive Substances Act, 1908.

8 (4) A4, A5, A6 and A7 are sentenced to imprisonment for life and to
8 (4) A4, A5, A6 and A7 are sentenced to imprisonment for life and to
8 (4) A4, A5, A6 and A7 are sentenced to imprisonment for life and to
8 (4) A4, A5, A6 and A7 are sentenced to imprisonment for life and to
8 (4) A4, A5, A6 and A7 are sentenced to imprisonment for life and to

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(4) A4, A5, A6 and A7 are sentenced to

imprisonment for life and to pay a fine of Rs.50000/- each. I.D.R.I. for a period of one year each for the offence punishable u/S 302 I.P.C. Each of them is also sentenced to undergo R.I. for a period of six months for the offence punishable u/s. 143 I.P.C and R.I. for a period of one year for the offence punishable u/s. 147 I.P.C and R.I. for a period of two years for the offence punishable u/s. 148 I.P.C.

(5) A8, A11 and A13 are sentenced to

imprisonment for life and to pay a fine of Rs.100000/- each. I.D.R.I. for a period of two years each for the offence punishable u/s. 120B r/w. 302 I.P.C.

(6) A18 is sentenced to imprisonment for life

and to pay a fine of Rs.100000/-. I.D.R.I. for a period of two years for the offence punishable u/s. 302 r/w 109 I.P.C.

(7) A31 is sentenced to undergo R.I. for a period

of three years and to pay a fine of Rs.20000/-. I.D.R.I. for a period of six months for the offence

punishable u/s. 201 I.P.C.

detention during the period from 16.05.2012 to

23.08.2012.

the substantive sentence of imprisonment

awarded to him.

(8) The sentence of life imprisonment awarded

to the accused is for the whole of the remaining

He was under

This period shall be set off against

9 life of them subject to the remission granted by the appropriate Government under section
9 life of them subject to the remission granted by the appropriate Government under section

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life of them subject to the remission granted by

the appropriate Government under section 432

Crl.P.C, which, in turn, is subject to the provision

contained in section 433A Crl.P.C.

(9) The substantive sentences of imprisonment

awarded shall run concurrently.

(10) If the fine amount is realised, Rs.300000/-

shall be paid to Rema (PW5), the wife of the

deceased and Rs.200000/- shall be paid to

Abhinand (CW13), the son of the deceased as

compensation u/s. 357 Crl.P.C.

(11) The charge against A9, who is no more,

stands abated.

7)

No. of Crime and

name of police station

:

Crime No.CBCID/406/CR/HHW/III/KKD/2012, CBCID, Kozhikode. (Crime No. 433/2012 of Vatakara Police Station).

8)

Name of the committing

Magistrate

:

Sri. M. Suhaib,

 

Judicial First Class Magistrate,

Vatakara.

9)

Prosecution conducted by

:

Sri. C.K.Sreedharan, Special Public Prosecutor and Sri. P.Kumarankutty, Associate Public Prosecutor.

10)

Accused defended by

:

A1 to A3 by Adv. Sri. B. Raman Pillai, A4 and A5 by Adv. Sri. M.Asokan, Adv. Sri. K.M.Sathish Narayanan, A6 and A7 by Adv. Sri. P.V. Hari, Adv. Sri. T.S. Ajay, A8 and A20 to A22 by Adv. Sri. K.M. Ramdas, A9 by Adv. Sri.C. Sreedharan Nair, A10 by Adv. Sri. K.P. Damodharan Nambiar, A11 and A12 by Adv. Sri. K.Viswan, A13 by Adv. Sri. K. Gopalakrishna Kurup, Adv. Sri. P.N. Sukumaran

11)

Date of Service of copy

to the accused.

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and Adv. Sri. D. Arun Boss, A14 by Adv. Sri. M.K. Damodharan, Adv. Sri. C. Sreedharan Nair, A16 to A19, A25, A31, A33, A39 and A41 by Adv. Sri. Vinod Kumar Chambalon, A27 to A29, A48 to A50 by Adv.Sri. K.Ajith Kumar, A30 by Adv.Sri. V.V. Sivadasan, Adv. Smt. V. Bindu, A36 and A37 by Adv.Sri. V.V.Sivadasan, A42 and A70 by Adv. Sri. N.R.Shanavaz.

:

28.01.2014

J U D G M E N T

‘’Intolerance is itself a form of violence and an obstacle to the growth of a

true democratic spirit.’’

------ Mahatma Gandhi

2.

The right to dissent and protest, are important to a democratic society.

Maintenance of opportunity for free political thought and expression, is a fundamental

principle of Constitutional Government. Very often in a dialectic that ideas have with life

and experience, great principles have been evolved. But, it means not that, such ideas

or philosophies, could be enforced with muscle and might. Violence or vandalism cannot

do service for political beliefs. (Jayarajan Vs State of Kerala : 1988 (2) K.L.T 536).

3.

“Politics, which was once considered the choice of noble and decent

persons is increasingly becoming a haven for law breakers. The ’Nelsons’ eye’ turned by

those wielding power to criminalisation of politics by their solemn and determined

patronage and blessings by vying with each other has been encouraging and facilitating

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rapid spread and growth with rich rewards and dividends to criminals. The alarming rate

of social respectability such elite gangsterism gaining day by day in the midst of people

who chose and had given unto themselves the right to elect their rulers, mostly guided

by misdirected allegiance to party politics and self oriented profit making endeavours

seem to provide the required nectar for its manifold and myriad ways of ventilation with

impunity. Though it is an irony, yet accepted truth is that the ‘home rule’ we could

achieve by ’non-violence’ has become the root cause for generating ’homicidal’ culture

of political governance effectively shielded by unprincipled mass sympathies and highly

profit-oriented selfish designs of unscrupulous ’people’ who have many faceted images

to present themselves at times to the extent of their deification.’’ (See Ram Udgar Singh

Vs State of Bihar : (2004) 10 SCC 443).

4. Anguish and anxiety expressed as above by the Apex Court of the country

a decade ago seem to have not yet yielded any fruitful result. Promotion of political

violence continues. Our Constitution envisages that every citizen shall have the right to

engage in political expression and association. Exercise of the basic freedom of political

expression

and

association

is

through

the

media

of

political

associations.

Any

interference with freedom of a party or its party men, whether it be by an individual or

any other party or State, that too by resorting to violence negating the rule of law, is an

interference with the freedom of political expression and association guaranteed by the

Constitution. Right to dissent

guaranteed in a republic governed by democracy if met

with brutal force, and the dissenter is annihilated, whether it be as a retaliatory measure

on the attacks made on one's party men or group, it will sound the death knell of

democracy. (See M.M. Mani Vs State of Kerala : 2012 (3) K.L.T 118: I.L.R

2012 (3)

Kerala 204 : 2012 (3) K.L.J 191). The present case is an example.

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5. This case is based on the final report filed by the Deputy Superintendent

of Police, Crime Branch C.I.D, HHW-III, Kozhikode in Crime No.433/12 of Vatakara

police station which was re-registered as CBCID Crime No.406/CR/HHW-III/KKD/2012.

The Prosecution Case

6. The case relates to the murder of Sri. T.P.Chandrasekharan, who was the

leader of Revolutionary Marxist Party. The synopsis of the prosecution case is that on

the night of 04.05.2012, at a public road at the place Vallikad, accused 1 to 7 hacked

the victim to death, striking him with swords and that the third accused caused

explosion with a country made bomb to prevent witnesses from approaching the scene

of the incident and that a criminal conspiracy had been hatched by accused 8 to 14 to

commit such murder and that the other accused in the case had in one way or other

assisted executing the murder and later in screening the accused or obliterating the

evidence of the crime.

7. The allegations against the accused in the final report can be described a

little more in detail as follows: T.P.Chandrasekharan was an active member of the

Communist Party of India (Marxist). He was a local leader of the C.P.I (M). Along with

some others, he left C.P.I (M) and formed a new party called 'Revolutionary Marxist

Party' (R.M.P). The new political party raised strong challenge to the C.P.I (M) in

Onchiyam, Chorode, Azhiyoor and Eramala Panchayats. T.P.Chandrasekharan was a

candidate at the Vatakara constituency in the Lok Sabha election. The C.P.I (M)

candidate who contested the election in that constituency was defeated not by

T.P.Chandrasekharan but by the Congress candidate.

The R.M.P activists had earlier

made an attack on Accused No.14 who was a member of the district committee of the

C.P.I (M) and who was the Chief Election Agent of the C.P.I (M) candidate in the

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election. Defeat of the C.P.I (M) candidate at the Vatakara constituency in the

Lok Sabha election, presumably due to the presence of T.P.Chandrasekharan as a

candidate in the election, intensively inflamed the animosity and rivalry between

the

two

political

parties.

A

criminal

conspiracy

was

then

hatched

to

murder

T.P.Chandrasekharan. During the months of September and October, 2009 attempts

were made to murder him. During February, 2012 clashes occurred at various places

between the activists of C.P.I (M) and R.M.P. On 2.4.2012, again a conspiracy was

made by accused 8 to 10 and 14 at the flower shop of accused no.30 to assassinate

T.P.Chandrasekharan and the task of executing the plan was entrusted with accused

no.8. He made contact with accused 1, 3, 11, 12 and 13 and with the help of accused 2

to 5, 7, 15 to 18, 20 to 25 and 27 to 30, preparations were made on different dates to

execute the plan. On 4.5.2012, at about 22.10 hours, accused 1 to 7, in an Innova car

driven by the first accused, reached the place Vallikad. The real registration number of

that car was KL-58D-8144 but the fake number KL-18A-5964 was exhibited on it.

T.P.Chandrasekharan was then coming on a motor cycle. The first accused rammed the

car into the bike throwing Chandrasekharan

to the road. Immediately, accused 2 to 7

got out of the car and attacked him with swords and hacked him to death and accused

no.3 exploded a country made bomb to scare away onlookers from reaching the spot.

After accomplishing the task assigned, the assassins left the place in the car. The other

accused in the case had in one way or other assisted executing the murder and later in

screening the assassins and the conspirators and harbouring them and obliterating the

evidence of the crime.

Investigation, Inquiry and Trial

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8. PW4, the Sub Inspector of Vatakara police station, after conducting law

and order duty, reached the police station at 22.25 hours on 04.05.2012. The Senior

Civil Police Officer who was on duty in the police station told him that information was

received over telephone that an untoward incident had occurred at the place Vallikad.

PW4 then rushed to that place with police party. At about 22.40 hours, he reached

there. He saw T.P.Chandrasekharan lying in a pool of blood alongwith the motor cycle

KL-18A-6395. With the help of the policemen and two persons who were present there,

PW4 got the injured into the police jeep and took him to the Vatakara Government

Hospital. The doctor there examined the injured person and declared him as dead. PW4

sent the deadbody to the Medical College Hospital, Kozhikode and returned to the

police station and registered Ext.P2 F.I.R regarding the incident as Crime No.433/12 of

Vatakara police station.

9. The investigation of the case was initially conducted by the local police by

a team headed by the Dy.S.P, Vatakara. On the morning of 05.05.2012, PW154 Circle

Inspector conducted inquest proceedings. Dr. Sujith Sreenivas (PW136) conducted

autopsy. PW163 Circle Inspector inspected the scene of the incident and prepared

Ext.P20 scene mahazar. By that time, the Dy.S.P, Vatakara (PW165) got information that

the car KL-58D-8144 was found abandoned at the place Punathilmukku in Chokli.

PW165 reached there with two persons (PW1 Praseed and CW2 Ramachandran) who

claimed to be eye witnesses. They identified the car as the vehicle in which the culprits

came. After examination of the car by forensic experts, PW165 seized that vehicle and

the articles found in it.

10. The investigation of the case was subsequently entrusted with the Crime

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Branch. A Special Investigation Team was constituted. On 15.05.2012, accused no.31

was arrested. On the basis of the information given by that accused, PW164 Dy.S.P

recovered five swords (MO1 series) from a well. Later, the accused who have allegedly

committed the murder and the conspirators and the persons who assisted them were

arrested. After investigation, the Dy.S.P, Crime Branch C.I.D, HHW-III, Kozhikode

(PW166) filed final report against 76 accused in the Court of the Judicial First Class

Magistrate, Vatakara

under sections 143, 147, 148, 302 read with 149 I.P.C and

sections 465, 471, 118, 201, 212, 120B,109 I.P.C and also under

sections 3 and 5 of

the Explosive Substances Act, 1908.

11. The case was taken on file by the Judicial First Class Magistrate,

Vatakara as C.P.111/12. Out of the 76 accused in the case, accused 24 and 52 were

absconding.

After

completing

the

necessary

formalities,

the

learned

Magistrate

committed the case against the remaining 74 accused to the Court of Session,

Kozhikode. The case was numbered as S.C 867/12 by the Sessions Court, Kozhikode.

As per the order of the Sessions Judge, Kozhikode the case was made over to this

court for trial.

12. Accused 1 to 8, 13, 14 and 27 are in judicial custody. Accused No.26 was

on bail in this case but he was in judicial custody in another case. These accused were

produced before the court. The other accused in the case were on bail and they

appeared before the court. All accused were represented by lawyers engaged by them.

13.

After hearing the prosecution and the defence, as per the order dated

19.12.2012, this court found that there was no sufficient ground for proceeding against

accused 54 and 61 and discharged them under section 227 Crl.P.C.

16

14. This court framed charge against the remaining 72 accused under

sections 143, 147, 148, 302 read with 149 I.P.C and 465, 471, 115 ,118, 201, 212, 120B

and 109 I.P.C and also under sections 3 and 5 of the Explosive Substances Act, 1908.

All the 72 accused pleaded not guilty.

15. As per the order dated 21.01.2013 in CRMA No. 452/2013 in Crl. R.P.

No. 132/2013 and in CRMA No. 454/2013 in Crl.R.P. No.133/2013 and in CRMA No.

507/2013 in Crl.R.P. No. 145/2013 and in CRMA No. 508/2013 in Crl.R.P. No. 146/2013,

the Hon'ble High Court stayed all further proceedings in the case against accused 53,

58, 60, 62 to 69 and 71 to 74.

16. As the trial against the remaining accused was not stayed by the Hon’ble

High Court and as there was a direction by the Hon’ble High Court to dispose of the

case on or before 31.7.2013, this court proceeded with the trial against the remaining 57

accused. (The time fixed for disposing the case was subsequently extended by the

Hon’ble High Court).

17. There were 284 witnesses cited by the prosecution for examination. Out

of them, 164 witnesses were examined by the prosecution and 120 witnesses were

given up. The prosecution also filed an additional witness list and out of them two

witnesses were examined. Thus, the prosecution examined 166 witnesses as PW1

to PW166. Exts. P1 to P579 and material objects MO1 to MO105 were marked. Exts.C1

to C18 and D1 to D31 were also marked during the prosecution evidence stage.

18. Accused No.9 died during the period of the trial of the case. After closing

the prosecution evidence, examination of the 56 accused in the case who had faced

trial was conducted under section 313 Crl.P.C. They denied involvement in any manner

17

in the incident in which T.P.Chandrasekharan was killed. Some of them also filed

statement in writing explaining the incriminating evidence and circumstances against

them.

19. As per the order dated 11.09.2013, twenty accused persons in the case,

namely Ajesh. P @ Kajoor (A15), E.M. Shaji (A23), Karayi Rajan (A26), Sunithan @

Suni (A32), Suresh @ Babutty (A34), Shobi @ Thomas (A35), Roshith (A38), C. Rajan

(A40), K. Kumaran (A43), P. Valsalan (A44), P.C. Lalu (A45), K. Anil Kumar (A46),

V. Rageesh (A47), T. Shimjith (A51), Shyamjith (A55), Sarin Sasi (A56), K. Ashokan

(A57), V.P. Shijeesh @ Nanappan (A59), K.K. Mukundan (A75) and P. Dhaneesh (A76)

were acquitted under section 232 Cr.P.C.

The remaining 36 accused who had faced

trial in the case were called upon to enter on their defence and to adduce evidence, if

any, in support thereof.

20. During the stage of defence evidence, DW1 to DW10

were examined

and Exts.D32 to D66 were marked. Exts.P580 to P582 were also marked at the defence

evidence stage.Thus, the total evidence in the case consists of the testimony of PW1 to

PW166 and DW1 to DW10 and Exts.P1 to P582 and D1 to D66 and C1 to C18 and

material objects MO1 to MO105.

21. After closing the evidence in the case, the learned Special Public

Prosecutors summed up the prosecution case and the learned counsel for the accused

advanced arguments in reply. Thereafter, with the leave of the court, the prosecution

and the defence made further submissions.

Points for Consideration

22. The points for consideration in this case are :

18

(1)

Has the prosecution proved that accused 1 to 7 were members of an

unlawful

assembly,

the

common

T.P.Chandrasekharan?

object

of

which

was

to

commit

murder

of

(2)

Has the prosecution proved that in prosecution of the common object of

the unlawful assembly of which accused 1 to 7 were members, accused 3 to 7, with the

intention of causing the death of

T.P.Chandrasekharan, struck him with swords on his

head and other parts of his body and caused him grievous injuries which resulted in his

death and thus committed his murder ?

(3) Has the prosecution proved that accused 1 to 5 and 7 to 14 had hatched

any conspiracy to murder T.P.Chandrasekharan ?

(4) Has

the

prosecution

proved

that the

third accused

unlawfully

and

maliciously caused explosion by a country made bomb, an explosive substance, which

was of a nature likely to endanger life and cause serious injury to property ?

(5)

Has

the

prosecution

proved

that

the

second

accused

had

in

his

possession or under his control, explosive substance, under such circumstances as to

give a reasonable suspicion that he had it in his possession or under his control not for a

lawful object ?

(6) Has the prosecution proved that on 04.05.2012, between 4 p.m and

10 p.m, without lawful authority and dishonestly and fraudulently, the first accused

caused a number plate having fake registration number KL-18A/5964 to be affixed on

the Innova Car KL-58D/8144 and thus committed forgery and that he used the aforesaid

forged number plate as genuine ?

(7) Has the prosecution

proved that at some

time

after 10.15 p.m on

04.05.2012, the third accused entrusted accused no.31 five blood-stained swords which

19

were used by him and accused 4 to 7 to cause the death of T.P.Chandrasekharan and

thus caused evidence of committing the offence of murder to disappear?

(8) Has the prosecution proved that accused 8 to 14 abetted the murder of

T.P.Chandrasekharan ?

(9) Has the prosecution proved that accused no.8, at some time between

04.05.2012 and 07.05.2012, destroyed the mobile phone having the SIM card number

9747170471 alongwith that SIM card which was used for facilitating the murder of

T.P.Chandrasekharan

and

thereby

caused

evidence

of

the

offence

of

murder

to

disappear with the intention of screening himself and accused 1 to 7 from legal

punishment ?

(10)

Has the prosecution proved that accused 16

and 17, on 27.04.2012,

made attempt to find out the whereabouts of T.P.Chandrasekharan and to identify him

for the purpose of causing his death ?

(11) Has the prosecution proved that accused no.18, at about 12 noon on

25.04.2012, at the premises of Mahe Bridge, put his signature in the cheque having the

number 126222 issued from Kodiyeri Co-operative Bank to account no. 9169 maintained

by accused no. 25 in that bank and thus committed forgery and fraudulently and

dishonestly used the aforesaid cheque as a genuine document ?

(12) Has the prosecution proved that accused no.18, between 25.04.2012

and 04.05.2012, entrusted the car KL-58/D 8144 which was obtained by him on rent to

the first accused and thereby abetted commission of the offence of murder?

(13) Has the prosecution proved that accused no.19, between 25.04.2012

and 04.05.2012, without any lawful authority, dishonestly and fraudulently, made fake

number plate

20

KL-18/A 5964 and at the instance of the first accused affixed it on the

Innova car KL-58/D 8144 and thereby committed forgery?

(14) Has the prosecution proved that accused no.19, between 25.04.2012

and 04.05.2012, dishonestly and fraudulently, made and affixed the sticker 'Masha Allah'

in Arabic language on the Innova car KL-58/D 8144 with the intention to facilitate the use

of the aforesaid car by accused 1 to 7 in committing the murder of T.P.Chandrasekharan

and thereby abetted commission of the offence of murder ?

(15) Has the prosecution proved that accused no.20, between 20.04.2012

and 04.05.2012, obtained four SIM cards through CW169 Nissar and CW170 Jabir and

entrusted them to the third accused with the intention of aiding and facilitating the

murder of T.P.Chandrasekharan and thus abetted the murder of T.P.Chandrasekharan?

(16) Has the prosecution proved that accused no.21, between 25.04.2012

and 04.05.2012,

obtained and entrusted swords to the third accused with the intention

of aiding and facilitating the murder of T.P.Chandrasekharan and the aforesaid swords

were used for committing the murder of T.P.Chandrasekharan and thus he abetted the

murder of T.P.Chandrasekharan ?

(17) Has the prosecution proved that accused no.22, on 25.04.2012 and

26.04.2012, travelled in the Innova Car KL-58/D 8144 along with accused 1 to 5 and 7 in

Onchiyam and Orkatteri areas to find out and identify T.P.Chandrasekharan

for the

purpose of causing his death and thereby abetted the murder of T.P.Chandrasekharan?

(18) Has the prosecution proved that accused no.25, on 04.05.2012 or on any

other date, in any manner aided and facilitated the murder of T.P.Chandrasekharan and

abetted the offence of murder ?

21

(19) Has the prosecution proved that accused no.27, between 24.04.2012

and 04.05.2012, obtained and entrusted swords to the third accused with the intention of

aiding and facilitating the murder of T.P.Chandrasekharan and thus abetted the offence

of murder?

(20) Has the prosecution proved that accused no.27, on 02.05.2012 and

03.05.2012, along with accused 24 and 28 and also with the assistance of accused

no.30, found out T.P.Chandrasekharan in Orkatteri Town for the purpose of causing his

death and thus abetted the offence of murder?

(21) Has the prosecution proved that accused no.28, on 02.05.2012 and

03.05.2012, along with accused 24 and 27 and also with the assistance of accused

no. 30, found out T.P.Chandrasekharan in Orkatteri Town for the purpose of causing his

death and thus abetted the offence of murder?

(22) Has the prosecution proved that accused

no.29, on

the

evening

of

04.05.2012,

in

any

manner

intentionally

aided

and

facilitated

the

murder

of

T.P.Chandrasekharan and abetted commission of the offence of murder ?

(23) Has the prosecution proved that accused no.30, on 02.05.2012 and

03.05.2012, assisted accused 24, 27 and 28 to identify T.P.Chandrasekharan and to find

out his whereabouts and to give such information to accused 1 to 7 for causing the

death of T.P.Chandrasekharan and thus abetted commission of the offence of murder ?

(24) Has the prosecution proved that accused 16 to 22 and 27 to 30, with the

knowledge that their act will facilitate the murder of T.P.Chandrasekharan, voluntarily

concealed the existence of the design to commit such murder?

(25) Has the prosecution proved that accused no.31, on the night

of

22

04.05.2012 or thereafter, put the blood-stained swords, which were used for committing

the murder of T.P.Chandrasekharan and which were entrusted to him by the third

accused, into a well behind Vasudeva Service Station in Chokli, with the knowledge that

they had been used to commit the murder of T.P.Chandrasekharan and caused evidence

of the commission of the offence of murder to disappear with the intention of screening

the offenders from legal punishment ?

(26) Has the prosecution proved that accused no.31,on 04.05.2012 at about

11.30 p.m, took accused no.6, who was injured while committing the act of murdering

T.P.Chandrasekharan, to C.M.C. Hospital in Chokli for treatment and that he gave false

information in the hospital regarding the name of accused no.6 and the cause of the

injury sustained by him and caused evidence of the commission of the offence of murder

to disappear and also harboured accused no.6?

(27) Has the prosecution proved that accused no.33, at about 11.30 p.m on

04.05.2012, took accused no.4 to Lyndas Lodge in Koothuparamba, with the knowledge

that

accused

no.4

was

one

of

the

persons

who

committed

murder

of

T.P.Chandrasekharan and that he took a room in that Lodge in his name and allowed

accused no.4 to reside in that room and thus harboured/concealed him with the intention

of screening him from legal punishment?

(28) Has the prosecution proved that accused no.36, on or after the night of

04.05.2012, burnt the blood-stained clothes which were worn by accused no.6 at the

time of committing the murder of T.P.Chandrasekharan and caused evidence of

commission of the offence of murder to disappear?

(29) Has the prosecution proved that accused no.37, on or after the night of

23

04.05.2012, burnt the blood-stained floor mat which was removed from the Innova Car

KL-58/D 8144

which was

used by accused

1

to

7

for

facilitating

the murder of

T.P.Chandrasekharan and caused evidence of commission of the offence of murder to

disappear?

(30) Has the prosecution proved that accused no.37 ,on or after the night of

04.05.2012, with the knowledge that the first accused was one of the persons who

committed

the

conceal/abscond

punishment ?

murder

with

of

the

T.P.Chandrasekharan,

intention

of

screening

assisted

the

first

the

first

accused

accused

to

from

legal

(31) Has the prosecution proved that accused no.37, on or after the night of

04.05.2012, with the knowledge that accused no.35 had caused evidence of the murder

of T.P.Chandrasekharan to disappear by abandoning the Innova Car

KL-58/D 8144 at

the place Punathilmukku in Chokli, assisted accused no.35 to abscond/conceal ?

(32) Has the prosecution proved that accused no.39, on or after the night of

04.05.2012, took accused no.6 to the Thalassery Area Committee Office of C.P.I(M) in

the autorikshaw KL-58/E 653 and harboured/concealed him there with the knowledge

that he was one of the persons who committed the murder of T.P.Chandrasekharan and

with the intention of screening him from legal punishment?

(33) Has the prosecution proved that accused no.41, on or after the night of

04.05.2012, took accused 1 to 3, 5 and 7 from the place Kunduchira in Thalassery to

Kuthuparamba Area Committee Office of the C.P.I (M) in the autorickshaw KL-18/F 8500

and the motor cycle KL-58/C 1283 and thereby assisted the aforesaid persons to

harbour/conceal and provided them with harbour, with the knowledge that they were

24

persons who had committed murder of T.P.Chandrasekharan and with the intention of

screening them from legal punishment ?

(34) Has the prosecution proved that accused

42 and 70, on or after

the

night of 04.05.2012, harboured/concealed accused 1 to 3 and 5 in the Kuthuparamba

Area Committee Office of the C.P.I (M) with the knowledge that the aforesaid persons

had committed murder of T.P.Chandrasekharan and with the intention of screening them

from legal punishment ?

(35) Has the prosecution proved that accused 48 to 50, on or after the night

of 04.05.2012, assisted accused 2, 3 and 5 to abscond/conceal and harboured them

with

the

knowledge

that they

were persons who

had committed

the

murder

of

T.P.Chandrasekharan and with the intention of screening them from legal punishment?

(36) What, if any, are the offences committed by the accused ?

(37) What is the sentence or order to be passed ?

23. Points 1 and 2 :-- These two points can be considered together for the

sake of convenience.

Death of T.P.Chandrasekharan – Homicidal Death

24. ‘Homicide’, as derived from Latin, literally means the act of killing a

human

being.

There

cannot

be

any

dispute

with

regard

to

the

fact

that

T.P.Chandrasekharan died in a murderous assault with sharp - edged weapons and his

death was homicidal.

25. Dr.Sujith Sreenivas (PW136), Assistant Professor and Assistant Police

Surgeon in the Forensic Medicine Department of the Medical College, Kozhikode had

conducted autopsy on the body of

25

T.P.Chandrasekharan. Ext.P179 is the postmortem

certificate issued by him. According to PW136, the deceased died of multiple incised

chop injuries sustained to the head and face cutting the skull and brain, transecting the

frontal lobe.

26.

Ext.P179

postmortem

certificate

discloses

27

ante-mortem

injuries

recorded by PW136. There is no need to extract here the description of all these injuries.

Suffice it to note that they include (1) incised wound 10 cm long on the back of head

sharply cutting the underlying skull (2) multiple transverse and oblique incised wounds

communicating with each other on the left side of head over an area of 20 x 10 cm

exposing sharply cut underlying brain (3) multiple transverse and oblique incised

wounds on the front of face extending to the left side of lower jaw and left ear with

marginal side cuts over an area of 20x15 cm cutting the nose and bones of the face

sharply with fragmentation and depression of bone fragments

(4) multiple criss cross

sharply cut superficial incised wounds and linear skin contusion on the left side of face

over the cheek and lower jaw (5) incised wound 10 cm long obliquely placed on the left

side of face (6)

incised wound 5x1 cm on the left side of forehead cutting undrlying

frontal bone (7) incised wound 13x2 cm transversely placed on the top of head cutting

the underlying skull and duramater transversely over the vault .

27. Injury No.14 is described in the postmortem certificate as follows:

''(14) On reflecting the scalp, underneath the external injury, there was a

bony defect 19x3 – 4cm over temporo maxillary region with sharply cut margins and

fragmentation and depression of adjacent bone on the left side of head extending upto

the right side of frontal bone obliquely 7cm above the root of nose.

The indriven bone

26

fragments pierced the dura mater and frontal lobes of brain. From the upper margin of

the bony defect a fissured fracture 6 cm long extended transversely along the frontal

bone to the right side of head, another fissured fracture 8 cm long extended to the vault

of skull.

The back end of the skull defect on the left side of head extended along the

mastoid process cutting it sharply transversely up to the left side of back of head.

Sharply cut bone fragments were found avulsed on the left side of back of head.

A fissured fracture 6 cm long extended from the bony defect on the left side of head to

left parietal prominence.

There was a sharp

cut on

the left

side of back

of skull

transversely placed 10 cm long involving both tables of skull underlying the external

injury 2 (a). A sharply cut avulsed bone segment transversely placed 9x3 cm seen on the

back of head involving the occipital bone underneath injury no.1, through which incised

duramater and cut brain was protruding.

The left side and midline of anterior cranial

fossa was fractured and fragmented with peri orbital fat of left side protruding into the

cranial cavity. The left side of middle cranial fossa was found shattered with a sharp cut

along the entire length of left petrous temporal bone. The left mastoid process was

sharply cut with fractures extending to the left side of posterior cranial fossa. The left

frontal lobe of the brain showed an incised cut 9 cm involving the entire thickness (5cm)

separating the entire frontal lobe from the cerebral hemisphere with the cut passing

through the anterior horn of left lateral ventricle. Thin sub arachnoid haemorrhage seen

over both the cerebral hemisphere.

The junction of mid brain and pons was lacerated

with partial separation of upper brain stem.

The left basi frontal, basi temporal region

and outer aspect of left frontal lobe was lacerated and contused.

The left occipital

lobe was found cut sharply underneath the avulsed occipital bone with contusion

of left basi occipital region.

The cut on the left cerebral frontal lobe was directed

27

medially and backwards ''.

28. PW136 has given evidence that injuries 1 to 3 and 5 to 7 resulting in injury

No.14 had led to the death of the victim. He has deposed that these injuries are

sufficient in the ordinary course to cause death.

29.There

is no reason

to find

that the

opinion of

PW136 is inherently

defective. The doctor who examined the deceased and conducted the postmortem is the

only competent person to opine the nature of the injuries and cause of death. It is only

in a case, where the opinion is inherently defective, the court will discard his evidence

(Sahebrao Mohan Berad Vs. State : 2011 Cri.L.J 2157 : (2011) 4 SCC 249). In the

absence of any convincing evidence that the doctor holding post mortem examination

has deliberately given a wrong report, his evidence is not liable to be discarded

(Tanviben Pankajkumar Divetia Vs State of Gujarat : A.I.R 1997 SC 2193 ). There is no

obligation on the doctor to describe the origin or cause of the injuries in the postmortem

report as he stated in his deposition in the court ( State of Punjab Vs Jugraj Singh : A.I.R

2002 SC 1083 :2002 Cri. L. J. 1503).

30.The evidence of PW136 and

Ext.P179 postmortem certificate issued by

him establish beyond doubt that T.P.Chandrasekharan had a homicidal death.

Death of T.P.Chandrasekharan – Definite Case of Murder

31. The defence has not disputed the fact that the act of causing the death of

T.P.Chandrasekharan, whoever has done it, amounts to murder punishable under

section 302 of the Indian Penal Code. It is not an act of a lesser degree of causing death

of a person. The injuries noted in the postmortem certificate on the head and the face of

28

the victim indicate that it was an act of intentionally causing the death of a person. There

is no need to analyse the other evidence in the case to come to a definite conclusion

that the act of causing death of T.P.Chandrasekharan was murder punishable under

section 302 of the Indian Penal Code.

32. According to the prosecution, accused 1 to 7 had reached the scene of

the incident in a car driven by the first accused. It is alleged that T.P. Chandrasekharan

was coming from the opposite direction riding a motor cycle and that the first accused

rammed the car on to the motor cycle and when T.P. Chandrasekharan fell down on the

road, accused 2 to 7 jumped out of the car and

accused 3 to 7 attacked him with

swords and hacked him to death.

It is also alleged that the second accused was

carrying a country made bomb with him and that the third accused got it from him and

caused an explosion by throwing it on the road to terrify the persons who reached there.

33. PW1 to PW3 are the eye-witnesses examined by the prosecution to

prove the murder. They have given evidence regarding the hideous incident claimed to

have seen by them.

Testimony of Praseed (PW1)

34. A summary of the evidence of PW1 Praseed (in examination-in-chief)

regarding the incident can be stated as follows: The incident took place at about 22.15

hours on 04.05.2012 on the side of Kainatti-Kuttiadi road at the place Vallikkad.

The

anniversary of Vallikkad Brothers Club was scheduled to be held on 05.05.2012.

At

about 20.00 hours on 04.05.2012, PW1 began to decorate the premises of the club and

the local area.

Ramachandran (CW2), Ramesan (PW2) and Maneesh Kumar (PW3)

were with him. At about 22.00 hours, they reached Varisakkuni Junction to tie a banner

29

there. PW1 then wanted to go home and he proceeded to walk towards his house in the

locality.

When he reached some distance, a light coloured

Innova Car

came from

behind him, took a turn there and proceeded towards Orkatteri side along the wrong

side of the road. There was something written in Arabic language on the front and the

rear glasses of the car. PW1 saw the driver of the car. A fat and bald person was sitting

inside the car on the left side of the driver. Suddenly, PW1 heard from behind the sound

of a collision of vehicles.

He looked back.

He saw the Innova car being stopped near

Rachana Mill.

He saw Maneesh Kumar (PW3) and Ramachandran (CW2) running to

that place. He ran behind them. When he reached there, he saw a motor cycle and a

person lying

on the road.

Suddenly, three persons opened the door of the car and

jumped out of it. There were swords in their hands. They repeatedly struck the person

lying on the road with the swords. Then, three other persons alighted from the car. Two

of them

had swords in their hands.

One of them was holding a round object in his

hand. The two persons, who were holding the swords, struck on the face and the head

of the person lying on the road with the swords. When PW1 and others took a few steps

forward with a view to save the victim, the person holding the round object in his hand

threatened them to run away or else they would be killed.

Then the other person who

was striking the victim with swords, got the round object and threw it towards them. It

fell on the road and exploded with terrific sound.

Then they knew that it was a bomb.

Thereafter, the assailants got into the car with the swords and left the place. PW1 then

approached the person injured. It was a horrifying scene. They did not get any vehicle

to take the injured to the hospital.

Within half an hour, the Sub Inspector and four

policemen reached there.

The Sub Inspector put two policemen on guard duty there.

The remaining persons in the police party took the injured to the hospital in the police

jeep.

30

35. PW1 has deposed that there was light at the scene of the incident from

the League House and the C.W.S.A office building. He has also stated that the engine

and the lights of the Innova car had not been put off.

also bright moon light at the time of the incident.

PW1 would say that there was

36. PW1 identified accused 1 to 7 in the court as the persons who came in

the Innova car and hacked the victim with swords. He specifically identified the accused

Anoop (A1) as the person who was driving the car and the accused Manoj Kumar (A2)

as the person who was holding the round object in his hand.

He would say that the

other five persons identified by him in the court were the persons seen by him as striking

the victim with swords.

PW1 has also stated that the number seen on the Innova car

was KL-18/A 5964.

PW1 has also deposed that in the identification parade held on

11.06.2012, 14.06.2012 and 12.07.2012, he had identified the accused T.K. Rajeesh

(A4), Anoop (A1) and Shinoj (A7).

PW1 has further stated that on 23.05.2012 he had

pointed out Sijith (A6) to the police at the camp office of the Special Investigation Team

(S.I.T). He would also say that on 19.06.2012, at the office of the S.I.T , he had pointed

out Muhammed Shafi (A5), Manoj Kumar (A2) and Suni (A3) to the police.

PW1

identified the Innova car KL-58/D 8144 parked in the compound of the court as the car

involved in the incident.

37. PW1 has also given evidence regarding the seizure of the Innova car

alleged to have been found abandoned at the place Punathilmukku. His evidence in this

regard can be summarized as follows:

On 05.05.2012, at about 11.00 hours, he was

standing near the scene of the incident and talking to Ramachandran (CW2). He heard

two policemen there saying that the car involved in the incident was found abandoned

31

near Chokli. The Dy.S.P, Vatakara was then present there.

Alongwith Ramachandran,

PW1 approached the Dy.S.P and told him that they could identify the car involved in the

incident.

The Dy.S.P then took them in his vehicle to the place Punathilmukku near

Chokli.

They saw there the car which was seen by them during the incident on the

previous day. The colour of the car was the same. There was writing in Arabic on the

front and the rear sides of the car.

The car found them there had the registration

number KL-58/D 8144. A person brought there the spare key of the car. The car was

opened by using that key.

PW1 saw experts examining the car and collecting blood-

stains and hairs from it. The police seized the car and the articles found inside the car

as per Ext.P1 mahazar.

PW1 identified his signature in Ext.P1 mahazar.

PW1 also

identified MO2 to MO10 series in the court as the articles seized from the car.

38. PW1 has also given evidence regarding the recovery of five swords

(MO1 series) by the police from a well near Chokli on 15.05.2012. He has deposed that

he then identified the aforesaid swords as the weapons used by the assailants.

39.

Testimony of Ramesan @ Dinesan (PW2)

PW2 Ramesan @ Dinesan is another eye-witness examined by the

prosecution to prove the incident of murder. His evidence in examination-in-chief can be

summarised as follows:

The incident took place at 22.15 hours on 04.05.2012 at the

eastern side of Kainatti-Kuttiadi road at Vallikkad. The anniversary of Vallikkad Brothers

Club was scheduled to be held on 05.05.2012 in Varisakkuni School. The premises of

the club and the school were decorated at 20.00 hours on 04.05.2012. Ramachandran

(CW2), Praseed (PW1), Sivaraman (CW.182) and Maneesh (PW3) were with him (PW2)

in doing the decoration work.

He went to Varisakkuni road junction at 22.00 hours to

erect a banner there. He and Maneesh (PW3) unfolded the banner and held it across

the road.

32

Then Praseed (PW1) walked towards his house stating that he would go

home and come back. At that time, a light coloured Innova car came from Orkatteri side

and proceeded further and took a turn and went to Orkatteri side along the wrong side.

PW2 then saw a person coming from Orkatteri side riding a motor cycle. The Innova car

hit on that motor cycle at the road near the C.W.S.A building.

Then they ran towards

that place. Suddenly, three persons jumped out of the car with swords and cut several

times on the face and the head of the person who was lying on the road near the motor

cycle. The person who got out of the front side of the car was fat and bald. One of the

persons who got out of the rear side of the car was a tall and lean person and the other

one was a person of normal stature.

When PW2 and others took a few steps forward,

three more persons jumped out of the car. Two of them were carrying swords and the

other person was holding a round object. The persons who were carrying swords cut on

the face and other parts of the person who was lying on the road. The person who was

holding the round object was previously known to him (PW2) and his name is Kirmani

Manoj (A2). One of the persons who jumped out of the car with swords was also known

to him (PW2) previously and his name is Annan Sijith (A6).

When PW2 and others

advanced, Kirmani Manoj (A2) who was holding the round object threatened them to run

away and that they would be killed.

Then, the other person with him took the round

object from the hands of Kirmani Manoj and hurled it on the road.

It exploded with

sound and then they knew that it was a bomb.

and left the place.

The assailants got into the Innova car

40. PW2 has deposed that there was light on the top of the League House

building and the C.W.S.A building and that there was bright moon light at the time of the

incident.

41.

PW2

has

identified

33

the

accused

Manoj

Kumar

(A2),

Sijith

(A6),

Muhammed Shafi (A5), T.K. Rajeesh (A4) and Shinoj (A7) in the court as the assailants.

He identified Anoop (A1) in the court as the driver of the Innova car. PW2 identified the

five swords (MO1 series) in the court as the weapons used by the assailants. PW2 has

stated that on 22.06.2012, at the office of the S.I.T,

he pointed out the person having

normal stature and then the police told him that the name of that person was Shafi (A5).

He pointed out to the police the fat and bald person and then the police told him that the

name of that person was Rajeesh (A4).

On 13.07.2012, at the office of the S.I.T, he

identified another person and then the police told him that he was Shinoj (A7).

42.

PW2 has deposed that on the front and the rear glasses of the Innova

car in which the assailants came, something was written in Arabic language.

PW2

identified the car KL-58/D 8144 parked in the compound of the court as the aforesaid car

involved in the incident.

43. PW2 has stated that after the assailants left the place in the car, he went

near the person injured.

He could not identify that person.

His head and face were

deformed due to the injuries.

Praseed (PW1) and Ramachandran (CW2) then stated

that the injured person appeared to be

T.P. Chandrasekharan.

He (PW2) went to his

house after some time and when he viewed the television, he came to know that the

person who was killed was T.P. Chandrasekharan.

On the next day, he went to the

house of the younger brother of his father and he returned to his house only after five

days.

Testimony of Maneesh Kumar (PW3)

34

A summary of his evidence in examination-in-chief can be stated as follows:

The

incident took place at about 22.15 hours on 04.05.2012 at the eastern side of Kainatti-

Kuttiadi road in Vallikkad Town.

The anniversary of Vallikkad Brothers Club was

scheduled

to

be

held

on

05.05.2012

in

Vallikkad

Varisakkuni

U.P

School.

Ramachandran (CW2) and Sivaraman (CW182) had told PW3 to decorate the school

and its premises.

The decoration work began after 20.00 hours on 04.05.2012.

Praseed (PW1), Ramesan (PW2), Sivaraman (CW182) and Ramachandran (CW2) were

with him (PW3) to do the decoration work.

They decorated the club and its premises

and the school.

Thereafter, Ramachandran (CW2) wanted to erect a banner in

Varisakkuni road junction.

Then Praseed (PW1) stated that he would go home and

come back and he walked to his house. PW3 and Ramesan (PW2) and Ramachandran

(CW2) unfolded and held the banner.

At that time, an Innova car came from Orkatteri

side and proceeded further and after covering some distance, it took a turn and it was

driven in the direction of Orkatteri along the wrong side of the road.

There was

something written in Arabic language on the front and the rear glasses of the car. PW3

saw a person coming from Orkatteri side riding a motor cycle and the Innova car hitting

on the motor cycle. Then, PW3 and others ran towards that place. PW3 saw the motor

cycle and its rider falling on to the road. Opening the door of the car, a person from the

left side of the driver seat and two others just behind him jumped out of the car with

swords.

They cut on the head and the face of the person who was lying on the road.

One of them was Kodi Suni who was previously known to PW3.

Out of the two others,

one person was fat and tall and the other person was tall and lean.

Again,

three

persons jumped out of the car with swords.

Two of them had swords in their hands.

The other person was holding a round object in his hand. One of the aforesaid persons

35

was Muhammed Shafi. PW3 had occasion to see him earlier. The persons jumped out

of the car for the second time with swords repeatedly cut on the head of the person who

was lying on the road.

When PW3 and others took some steps forward with a view to

save the injured person, the person who was holding the round object threatened them

to run away and that they would be killed.

Kodi Suni took the round object from the

hands of that person and hurled it towards PW3 and others.

It exploded with great

sound. Then they knew that it was a bomb. The assailants left the place in the Innova

car.

45. PW3 has stated that it was in the head light of the Innova car and the

electric light from the League Office and the C.W.S.A building that he saw the assailants.

He has also stated that there was bright moon light at the time of the incident.

46. PW3 identified in the court the accused Manoj Kumar (A2), T.K. Rajeesh

(A4), Muhammed Shafi (A5), Sunil Kumar (A3), Anoop (A1), Shinoj (A7) and Sijith (A6)

as the persons involved in the incident.

47. PW3 has deposed that on 06.06.2012, at the S.I.T office, he saw one of

the accused and the police told him that the name of the aforesaid person was Annan @

Sijith.

On 22.06.2012, at the S.I.T office, he understood the names of Rajeesh, Anoop

and Kirmani Manoj.

On 21.07.2012, at the S.I.T office, he came to know the name

Shinoj from the police.

48. PW3 has stated that the number of the Innova car was KL-18/A 5964.

He identified the car KL-58/D 8144 which was parked in the compound of the court as

the car involved in the incident. PW3 has also identified the five swords (MO1 series) in

the court as the weapons used by the assailants.

36

injured in the incident. He would say that the head and the face of that person was in a

terrible condition on account of the injuries sustained by the swords.

house

after

the

incident.

He

came

to

know

that

the

person

He went to his

murdered

was

T.P. Chandrasekharan. On account of fear and due to the possibility of riots in the

locality, he kept away from his house for two or three days.

Testimony of Sub Inspector Manoj (PW4)

50. PW4 Manoj P.M was the Sub Inspector of Vatakara Police Station. He is

the person who took the injured from the scene of the incident to the hospital.

His

evidence is relevant in the context of the testimony of PW1. The crux of the testimony of

PW4 can be stated as follows: On 04.05.2012, at 22.25 hours, PW4 reached Vatakara

Police Station after conducting law and order duty. Then, Senior C.P.O Asokan (PW135)

who was on duty in the police station told him that a phone message was received that

some untoward incident had taken place at Vallikkad. Immediately PW4 proceeded to

Vallikkad Town alongwith four policemen.

They reached the scene of the incident at

about 22.40 hours.

They saw a person lying in a pool of blood near the motor cycle

KL-18/A 6395 at the side of Kainatti-Kuttiadi public road.

It appeared to PW4 that the

person injured was T.P. Chandrasekharan.

He put two policemen on guard duty at the

scene of the incident.

With the help of the two persons who were present there, PW4

got the injured into the police jeep and took him to Vatakara Government Hospital. The

doctor examined the injured person and declared him as dead.

PW4 then made

arrangements to take the dead body to the Medical College Hospital, Kozhikode.

He

returned to Vatakara Police Station.

He reached there at 23.20 hours and registered

Ext.P2 F.I.R. On the next day (05.05.2012), at 09.45 hours, he pointed out the scene of

the incident to the Kuttiadi Circle Inspector Benny (PW163).

The Circle Inspector

37

(PW163) prepared scene mahazar (Ext.P20) and seized the articles found at the scene

of the incident. PW4 identified in the court MO19 series to MO37 as the articles which

were found at the scene of the incident and seized by PW163 as per the scene

mahazar.

Testimony of S.C.P.O Asokan (PW135)

51. Senior Civil Police Officer Asokan (PW135) was on duty in the Vatakara

Police Station on the night of 04.05.2012. He has deposed that at 22.25 hours on that

day, a person gave information to the police station over phone that some untoward

incident had taken place in Vallikkad Town.

PW135 would say that when the Sub

Inspector (PW4) reached the police station after conducting law and order duty, he

conveyed the aforesaid information to the Sub Inspector.

PW135 has also stated that

the Sub Inspector then went to the scene of the incident with police party.

52. Learned Senior Counsel Sri. M.K. Damodaran and

Sri. B. Raman Pillai

and the learned counsel for the other accused would contend that PW1 to PW3 are

witnesses planted by the prosecution and that they are not natural and probable

witnesses.

and

their

trustworthy.

It is also contended that they are highly interested and partisan witnesses

evidence

regarding

the

incident

cannot

be

accepted

as

reliable

and

53. The prosecution case is that PW1 to PW3 happened to see the incident

when they were engaged in the work of decorating the road and the premises of the

Brothers Club in connection with the anniversary of the club which was scheduled to be

held on 05.05.2012. The evidence of PW1 to PW3 is that just before the incident they

were trying to tie a banner at Varisakkuni Junction.

38

Evidence Regarding the Anniversary of Brothers Club

54. PW10 Sooraj Kumar was the Secretary of the Brothers Club during the

year 2012. He has given evidence as follows: The anniversary of the club was used to

be conducted in the name “Gramotsavam”.

This programme for the year 2012 was

scheduled to be conducted on 21.04.2012. As the rehearsal of the drama to be played

could not be completed, the programme could not be conducted on that day.

As per the

decision taken in the general body meeting of the club, the programme was postponed

to 05.05.2012.

Decoration work in connection with the anniversary was conducted by

Ramachandran (CW2), Praseedan (PW1), Maneesh (PW3), Ramesan (PW2) and

Sivaraman (CW182). Decoration work had begun at about 20.00 hours on 04.05.2012.

At about 21.45 hours on that day, he (PW10) took the banner from the office of the club

and brought it to the school and entrusted it with Ramachandran (CW182) and left for

his house to have food.

55.

Ext.P11 is the minutes book of the Brothers Club.

Ext.P10 is the

permission granted by the Dy.S.P, Vatakara for using loud speaker in the Gramotsavam

programme of the club on 05.05.2012. PW10 has given evidence that he had produced

these documents before the investigating officer and they were seized as per Ext.P12

mahazar. PW10 identified his signature in Ext.P12 mahazar.

56. Dy.S.P Jossy Cheriyan (PW165) has given evidence that on the basis of

the application made by PW10 for granting permission for using loud speaker on

05.05.2012 in connection with the anniversary of Brothers Club, he had issued Ext.P10

permit to PW10.

39

the minutes of the general body meeting of the Brothers Club conducted on 17.04.2012.

The minutes of the meeting recorded in Ext.P11(a) show that the anniversary of the club

which was scheduled to be held on 21.04.2012 was postponed to another day. It is true

that no decision was taken to conduct the anniversary of the club on 05.05.2012.

On

the other hand, the decision taken in the general body meeting of the club which was

held on 17.04.2012 was to conduct the programme on a day between 05.05.2012 and

10.05.2012. The minutes of the meeting recorded in Ext.P11(a) would show that many

members of the club had demanded that the programme should be conducted on

05.05.2012. PW10 has clarified in re-examination that it was in order to have feasibility

in selecting a day to suit the convenience of the person inaugurating the function that a

date between 05.05.2012 and 10.05.2012 was fixed for conducting the programme.

There is no sufficient ground to disbelieve the evidence of PW10 that the anniversary of

the club was scheduled to be held on 05.05.2012.

58.

Ext.P10 document dated 27.04.2012 issued by the Dy.S.P (PW165)

shows that permission was granted to the Secretary of the Brothers Club for using loud

speaker on 05.05.2012. Ext.P10 document corroborates the testimony of PW10 that the

anniversary of the club was scheduled to be held on 05.05.2012.

59. There is no basis for the contention of the defence that Exts.P10 and P11

are documents got concocted by the investigating agency.

Ext.P11 minutes book

contains entries regarding the meetings of the club held from the date 17.01.2007

onwards.

It cannot be believed that it is a document concocted by PW10 or any other

person at the instance of the investigating agency.

If required, one could have made

fabrication in a perfect manner by recording minutes of the meeting of the club showing

40

contains minutes of the meeting of the club to the effect that anniversary of the club was

postponed to a date between 05.05.2012 and 10.05.2012 and not to the specific date

05.05.2012 indicates that it is not a fabricated document. There is also no substance in

the submission by the defence that Ext.P10 is a document concocted by PW165.

60. It is true that PW10 had not stated to the police the names of CW2 and

PW1 to PW3 as the persons who had done the decoration work.

PW10 had also not

stated to the police that he had entrusted any banner with Ramachandran (CW2).

61. The contradictions by way of omissions in the evidence of PW10 as

mentioned above do not in any way detract the credibility of his testimony. Nor they put

any doubt regarding the presence of PW1 at the time and place of the incident.

PW10

was the Secretary of the club.

In that capacity, PW10 would have been engaged and

pre-occupied with many matters on the eve of the anniversary of the club.

He would

have been very busy at that time. He may not have thought it necessary to recollect his

memory

and

state

before

the

investigating

officer

minute

details

regarding

the

arrangements made by him on the previous day evening in connection with the

anniversary of the club.

After all, he was questioned by the police at the time of

producing the minutes book of the club to the investigating officer. He was not an eye-

witness to the incident. In these circumstances, the omissions referred to above in the

evidence of PW10 are not sufficient to discard his testimony as unreliable. Omissions in

the statement of a witness recorded under section 161 Cr.P.C do not take away the

nature and character of his evidence. Do such omissions compel the court to reject

otherwise creditworthy and acceptable evidence of a witness ? The answer can only be

in the negative. (See Alamgir Vs. State : A.I.R 2003 SC 282).

41

member of Vallikkad Brothers Club. But, his evidence shows that he used to co-operate

with the activities of the club.

It is not unusual or uncommon for the youngsters in the

locality to actively associate with the anniversary of a club in a rural area, whether they

are members or not in such organisation. Ramachandran (CW2) was a member of the

club.

He

was a

friend of PW1.

May be there was also friendly persuasion by

Ramachandran (CW2) which prompted PW1 to provide support and assistance to the

programmes of the club.

There is no reason to disbelieve the testimony of PW1 that

after 20.00 hours on 04.05.2012 he was engaged in decorating the local areas of the

club in connection with its anniversary and that he had reached Varisakkuni Junction at

about 22.10 hours on that day to erect a banner there.

would

63.

Absence of Details in the Remand Reports

Learned Senior Counsel Sri. M.K. Damodaran and Sri. B. Raman Pillai

emphatically

contend

that

PW1

and

Ramachandran

(CW2)

are

witnesses

procured by the investigating officers to project the story invented and shaped by them

at a later stage of the investigation. They have contended that absence of the names of

PW1 and CW2 as eye-witnesses to the incident and the names of accused 1 to 7 as the

actual assailants in the remand reports would show that the investigating officers had no

clue regarding the assassins and they had no idea regarding the persons who had

occasion to witness the incident.

64. Section 167(1) Cr.P.C provides that whenever any person is arrested and

detained in custody, and it appears that the investigation cannot be completed within the

period of twenty-four hours fixed by section 57, and there are grounds for believing that

the accusation or information is well-founded, the officer in charge of the police station or

the police officer making the investigation, if he is not below the rank of sub-inspector,

42

shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the

diary relating to the case, and shall at the same time forward the accused to such

Magistrate.

65.

Section 172(1) Cr.P.C provides that every police officer making an

investigation under Chapter XII of the Code shall day by day enter his proceedings in

the investigation in a diary, setting forth the time at which the information reached him,

the time at which he began and closed his investigation, the place or places visited by

him, and a statement of the circumstances ascertained through his investigation.

66.

There is no provision in the Code of Criminal Procedure requiring the

police officer to submit a remand report.

But under Section 167 Cr.P.C it is imperative

that the police officer should send along with the accused a copy of the entries in the

case diary which he is bound to maintain under section 172 Cr.P.C.

Usually copies of

the entries in the case diary are not separately sent to the Magistrate.

A gist of the

above entries in the case diary alone is incorporated by the investigating officer in the

remand report or in the remand extension report. The purpose of filing such reports and

the purpose of incorporation of the diary entries in such reports is to enable the

Magistrate to decide whether he should authorize the detention or further detention of

the accused to police or judicial custody, as the case may be, or to release the accused.

(Kamarudheen Vs. S.H.O : I.L.R 2010 (3) Kerala 870).

67. Before proceeding further, it is to be noted that as per the evidence of

Dy.S.P Jossy Cherian (PW165) it was on the evening of 05.05.2012 that he recorded the

statements of Praseed (PW1) and Ramachandran (CW2) who claimed to be the eye-

witnesses to the incident.

43

16.05.2012 in the Court of the Judicial First Class Magistrate, Vatakara in respect of the

accused Rajith (A27), Rameesh (A28), Dipin (A29), Raveendran (A30) and Pradeepan

(A31). The names of PW1 and CW2 are not mentioned in Ext.C11 report. The names

of accused 2 to 5 and 7 are mentioned in Ext.C11 report but they are not shown as the

actual assailants.

69. Ext.C8 is the report filed by Dy.S.P Jossy Cherian (PW165) in the Court

of the Judicial First Class Magistrate, Vatakara on 17.05.2012 in respect of the accused

Ramachandran (A8) and three other accused.

mentioned in Ext.C8 report.

The names of PW1 and CW2 are not

70. Ext.C9 is the report filed by Dy.S.P Jossy Cherian (PW165) in the Court

of the Judicial First Class Magistrate, Vatakara on 24.05.2012 in respect of the accused

C.H. Asokan (A9) and K.K. Krishnan (A10).

mentioned in Ext.C9 report.

The names of PW1 and CW2 are not

71. It is true that names of the eye-witnesses are not mentioned in the above

remand reports.

But it is stated in these reports that the statements of the eye-

witnesses have revealed some facts.

72. Non-mentioning of the names of PW1 and CW2 in Exts. C8, C9 and C11

remand reports as eye-witnesses to the incident has to be considered taking into

account the special circumstances of this case. The prosecution has got a definite case

that local leaders of C.P.I.(M) had enmity towards T.P.Chandrasekharan and it was the

motive of the murder. The assailants alleged to have committed the ghastly crime were

at

large at the

time

of filing Exts.

C8, C9

and C11 reports.

They were yet to be

apprehended by the police. Disclosing the names of the eye-witnesses in the aforesaid

remand

reports

would

have

posed

threat

to

the

life

of

those

witnesses.

The

44

apprehension entertained by the investigating officers in this regard cannot be ignored

as baseless. The fact that a large number of witnesses turned hostile to the prosecution

during the trial of the case is an indication that the apprehension entertained by the

investigating officers regarding danger to the life of the eye-witnesses was well-founded.

73. Even otherwise, absence of details of the eye-witnesses or the role of

each accused in the commission of the offences in the remand reports filed by the

investigating officer cannot be always considered as fatal to the prosecution case. Non-

compliance with the provision contained in section 167 (1) Cr.P.C may in proper cases

and according to circumstances lead to an inference that the evidence adduced by the

prosecution before the court is tainted.

But, in every case of such irregularity, such an

inference shall not be drawn (See Pallasanna Haneefa Vs. State of Kerala : 1966 Cri.L.J

1007).

74. A Division Bench of the Hon'ble High Court has held in Kadavanathil

Baby Vs. State (1983 Cri.L.J 1186) that evidence could not be discarded on the ground

of a mere violation of section 167 Cr.P.C and a violation may taint the prosecution only in

cases where the facts justify it.

75. Learned counsel for the accused would rely upon the decision of the

Apex Court in Surinder Kumar Vs. State of Punjab (A.I.R 1999 SC 215) to contend that

absence of material particulars in the remand report would be fatal to the prosecution

case. It was a case in which the only material on which the prosecution could primarily

rely upon to justify the prayer for remanding the accused was extra judicial confession

made by the accused before a witness but it was not mentioned in the remand report. In

Kamarudheen Vs S.H.O (2011 Cri.L.J 388), the Hon'ble High Court has explained the

aforesaid decision of the Hon'ble Supreme Court in the following manner:

45

“In Surinder Kumar Vs. State of Punjab, the only material relied on by the

prosecution to prove the charge against Surinder Kumar was a confession made to

PW6. That solitary circumstance was not mentioned in the remand application and that

was taken as an important circumstance by the Apex Court as an additional ground to

hold that the charge against Surinder Kumar was not proved.

In the present case, the

remand report as well as the remand extension report pertaining to A-10 give a gist of

the incriminating material (though not the entire material) against A-10. Hence I am not

impressed by the argument based on Surinder Kumar's case”.

76. In Sunny Vs. State of Kerala: 2011(3) K.L.T 885, the Hon'ble High Court

has held as follows:

“A remand report is for the purpose of enabling the Magistrate to satisfy

himself of the necessity to remand the accused.

A particular remand report has

significance only for the period during which the accused is remanded, unless the same

is relied on for the remand of the accused for subsequent period also. A remand report

need not contain all the details which are available in the First Information Statement

and the other materials collected during investigation.

The remand report need only

contain sufficient materials to arrive at the conclusion that detention of the accused is

necessary or the continued detention of the accused is necessary”.

77. In the light of the above, considering the facts and circumstances of the

present case, it cannot be found that non-mentioning the names of PW1 and CW2 in the

remand reports as eye-witnesses to the incident leads to the inference that they are

witnesses

procured

by

the

investigating

prosecution case in a partisan manner.

officers

at

a

later

stage

to

project

the

46

Absence of Names of PW1 and CW2 in Ext.P1 Mahazar

78. Another contention raised by the learned counsel for the accused is with

regard to the non-mentioning of the names of PW1 and CW2 as eye-witnesses to the

incident in Ext.P1 mahazar.

Ext.P1 is the mahazar prepared by Dy.S.P Jossy Cherian

(PW165) for seizure of the Innova car KL-58/D 8144 which was found abandoned at the

place Punathilmukku. The mahazar was prepared at 15.00 hours on 05.05.2012.

The

evidence of PW1 is that alongwith Ramachandran (CW2) he had accompanied PW165

to the place where the car was found abandoned and that he identified the car as the

vehicle in which the assailants came to the scene of the occurrence.

PW1 and CW2

have affixed their signature in Ext.P1 mahazar as attestors.

It is true that there is no

recital in Ext.P1 mahazar that PW1 and CW2 identified the car. It is also not mentioned

in Ext.P1 mahazar that PW1 and CW2 are eye-witnesses to the incident.

It is to be

remembered that before the preparation of Ext.P1 mahazar PW165 had not recorded

the statements of PW1 and CW2. At that time, PW165 was aware of the fact that PW1

and CW2 were persons who had seen the incident. But, in view of the fact that PW165

had not recorded their statements at that time, there is nothing unusual or strange in not

mentioning their names in Ext.P1 mahazar as eye-witnesses to the incident.

Ext.P1

mahazar bears the initial of the Magistrate with the date 07.05.2012.

The date

06.05.2012 was a Sunday. Ext.P1 mahazar containing the signatures of PW1 and CW2

had reached the Magistrate on 07.05.2012. In these circumstances, non-mentioning of

the names of PW1 and CW2 as eye-witnesses in Ext.P1 mahazar does not lead to an

inference that they are eye-witnesses procured by the investigating officers at a later

point of time.

47

Delay in Recording the Statement of PW1

79. There is also no merit in the plea of the defence that there

was undue

delay in recording the statements of PW1 and CW2 under section

161 Cr.P.C by

PW165. A whole reading of the evidence of PW165 would show that throughout the day

of 05.05.2012 he was fully engaged in the investigation of the case.

It was at about

11.00 hours on 05.05.2012 he came to know that PW1 and CW2 were eye-witnesses to

the incident. By that time PW165 had got information that the car which was suspected

to be involved in the incident was found abandoned at the place Punathilmukku.

Alongwith PW1 and CW2, he had reached that place. After the examination of the car

by the forensic experts, PW165 could prepare seizure mahazar (Ext.P1) of the car only

at 15.00 hours.

On returning to his office, PW165 had to prepare various other

mahazars for seizure of material objects collected by Scientific Assistants.

On the

evening of 05.05.2012 itself he had recorded the statements of PW1 and CW2.

It

cannot be found that there was undue delay in recording their statements under section

161 Cr.P.C. Delay, if any, stands explained satisfactorily.

80. Moreover, any defect by delay in examination of witnesses in the manner

of investigation cannot be a ground to condemn the witness.

Delay in recording the

statements of the witnesses do not necessarily discredit their testimony. The court may

rely on such testimony if it is cogent and credible (Sidhartha Vashisht Vs. State : A.I.R

2010 SC 2352 – Paragraphs 61 and 153).

81. Delay, per se, does not destroy the credibility of a witness.

Undue and

unexplained delay in recording the statement of a witness gives rise to a doubt that the

prosecution might have engineered it to rope the accused into the case.

Delay in

48

recording the statement of the witness can occur due to various reasons and can have

several explanations. If the explanation given for the delay in recording the statement of

the witness is satisfactory, the court can accept the evidence of such a witness (Prithvi

Vs. Mam Raj : A.I.R 2004 SC 2729).

If the evidence of the witness is convincing and

reliable, it shall not be discarded on the ground that there was delay in recording his

statement by the investigating officer (Dr. Krishna Pal Vs. State of U.P : A.I.R 1996 SC

733).

 

82. Early recording of the statement of a witness gives credibility to his

evidence.

But, it is not an absolute rule that where the statement is recorded late, the

witness is a false witness or a trumped-up witness. That will depend upon the quality of

the evidence of the witness (John Pandian Vs. State : A.I.R 2011 SC (Supp) 531).

83. The delay in examination of witnesses is a variable factor. It would

depend upon a number of circumstances.

For example, non-availability of witnesses,

the investigating officer being pre-occupied in serious matters, the investigating officer

spending his time in arresting the accused who are absconding, being occupied in other

spheres of investigation of the same case which may require his attention urgently and

importantly, etc. (See Shyamal Ghosh Vs. State of West Bengal : A.I.R 2012 SC 3539 –

Paragraph 38). In the present case, the evidence of PW165 shows that on 05.05.2012,

he was occupied in other spheres of investigation of the case which required his urgent

attention, that is, inspection of the Innova car which was found abandoned and its

seizure after forensic examination.

Yet, PW165 had recorded the statements of PW1

and CW2 on the evening of 05.05.2012 itself.

Testimony of C.P.O Manoj Kumar (PW125)

Station on the date of the incident.

49

He was one of the persons who had accompanied

Sub Inspector Manoj (PW4) to the scene of the incident and reached there at about

22.40 hours.

PW4 Sub Inspector had put him on scene guard duty on that night.

PW125 would say that the two persons who were present at the scene of the incident

and who helped the police party to get the victim into the jeep remained at the spot till

next day morning. On the other hand, the evidence of PW1 is that he went home after

the police party took the victim to the hospital.

The evidence of PW125 that the

aforesaid two persons remained at the spot till the morning cannot be believed. PW125

has stated that he could not say till what time they remained there. It cannot be believed

that PW1 and CW2 remained at the scene of the incident during the whole night.

Non-seizure of Banner

85. It is true that the investigation officers have not seized the banner which

was tried to be erected by PW1 and CW2 at Varisakkuni Junction.

The banner

abandoned on the road might have been taken and kept by any member of the Brothers

Club or any other person who happened to see it.

Non-seizure of the banner by the

police is not a sufficient ground to disbelieve the evidence of PW1 regarding the reason

for his presence near the scene of the incident.

Call Data Record of Cell Phones – Probative Value

86. Another submission made by the counsel for the accused is that the call

data records of the cellphone being used by PW1 would show that he was not at

Vallikkad at the time of the incident.

87. The last few years of the 20th Century saw rapid strides in the field of

information and technology. The expanding horizon of science and technology threw

new challenges for the ones who had to deal with proof of facts in disputes where

50

advanced techniques in technology were used and brought in aid. Storage, processing

and transmission of data on magnetic and silicon medium became cost effective and

easy to handle. Conventional means of records and data processing became out-dated.

Law had to respond and gallop with the technical advancement. Law did not sleep when

the dawn of Information and Technology broke on the horizon. World over, statutes were

enacted. Rules relating to admissibility of electronic evidence and its proof have been

incorporated in the Indian Evidence Act also.

88.

In this context, it would be advantageous to make reference as to how

record of the calls made from and to a cell phone becomes useful in the trial of a case to

identify the presence of a particular person in and around a specific place and also to

identify the mobile phone from which the calls have been made.

89.

An active mobile phone has two components, that is, the mobile

instrument and the SIM card. Every mobile instrument has a unique identification

number, namely, Instrument Manufactured Equipment Identity, for short, IMEI number.

Such SIM card could be provided by the service providers either with cash card or post

paid card to the subscriber and once this SIM card is activated the number is generated

which is commonly known as mobile number. The mobile service is operated through a

main server computer called mobile switching centre which handles and records each

and every movement of an active mobile phone like day and time of the call, duration of

the call, calling and the called number, location of the subscriber during active call and

the unique IMEI number of the instrument used by the subscriber during an active call.

This mobile switching centre manages all this through various sub-systems or sub-

stations and finally with the help of telephone towers. These towers are actually Base

Trans-receiver Stations also known as BTS. Such BTS covers a set of cells each of

51

them identified by a unique cell ID. A mobile continuously selects a cell and exchanges

data and signalling traffic with the corresponding BTC. Therefore, through a cell ID the

location of the active mobile instrument can be approximated (Mohd. Arif @ Ashfaq Vs

State of NCT of Delhi : (2011) 13 SCC 621).

90. In Gajraj Vs. State (NCT) of Delhi; (2011) 10 SCC 675; 2012 Cri.L.J 413,

it has been held as follows:

“The evidence produced by the prosecution is based on one irrefutable

fact, namely, every mobile handset has an exclusive IEMI number. No two mobile

handsets have the same IEMI number. And every time a mobile handset is used for

making a call, besides recording the number of the caller as well as the person called,

the IEMI numbers of the handsets used are also recorded by the service provider. The

aforesaid factual position has to be kept in mind while examining the prosecution

evidence …………We are satisfied, that the process by which the accused-appellant

came to be identified during the course of investigation, was legitimate and unassailable.

The IEMI number of the handset, on which the accused-appellant was making calls by

using a mobile phone (sim) registered in his name, being evidence of a conclusive

nature, cannot be overlooked on the basis of such like minor discrepancies . In fact even

a serious discrepancy in oral evidence, would have had to yield to the aforesaid

scientific evidence.’’

91. The aforesaid decision in Gajraj's case has been followed in Prashant

Bharti Vs State : (2013) 3 SCC (Cri) 92 : (2013) 9 SCC 293.

92. In State Vs. Navjot Sandhu @ Afsan Guru : 2005 Cri.L.J 3950 : (2005) 11

SCC 600, the Hon’ble Supreme Court has held that even secondary evidence is

admissible to prove the call data records of a cell phone. It was contended by the

52

defence in that case that in the absence of a certificate issued under sub-section (2) of

section 65B of the Evidence Act with the particulars enumerated in clauses (a) to (e), the

information contained in the electronic record cannot be adduced in evidence and in any

case in the absence of examination of a competent witness acquainted with the

functioning of the computers during the relevant time and the manner in which the

printouts were taken, even secondary evidence under Section 63 of the Evidence Act is

not admissible. The Apex Court repelled these contentions and held that Section 65 of

the Evidence Act enables secondary evidence of the contents of a document to be

adduced if the original is of such a nature as not to be easily movable and as the

information contained in the call records is stored in huge servers which cannot be

easily moved and produced in the court, printouts taken from the computers/servers by

mechanical process and certified by a responsible official of the service providing

company can be led into evidence through a witness who can identify the signatures of

the certifying officer or otherwise speak to the facts based on his personal knowledge. It

was held that irrespective of the compliance of the requirements of Section 65B of the

Evidence Act which is a provision dealing with admissibility of electronic records, there is

no bar to adduce secondary evidence under the other provisions of the Evidence Act,

namely Sections 63 and 65. The Apex Court also found no substance in the contention

of the defence that the witnesses examined were not technical persons acquainted with

the functioning of the computers nor they do have personal knowledge of the details

stored in the servers of the computers.It was also held that the printouts pertaining to the

call details exhibited by the prosecution were of such regularity and continuity that it

would be legitimate to draw a presumption that the system was functional and the output

was produced by the computer in regular use, whether this fact was specifically deposed

to by the witness or not.

53

Call Data Record of the Cell Phone of PW1

93. PW1 has given evidence that his mobile phone number is 9048014554.

He would say that he does not remember whether the service connection of this number

is in his name or in the name of his wife. He has deposed that the mobile phone having

the aforesaid SIM card is being used by him and also his wife.

94.

Ext.D24

is

the

call

data

record

of

the

SIM

having

the

number

9048014554. This document is proved through PW152, who is the Nodal Officer of

Vodafone Company. Ext.D25 is the certificate given by PW152 under section 65B of the

Indian Evidence Act with regard to Ext.D24 document.

Ext.P267 is the list of mobile

phone towers of Vodafone Company in Kannur, Kozhikode and Kasaragode Districts.

95. Ext.D24 and Ext.P267 documents alongwith the evidence of PW152 show

that the tower location of the cell phone used by PW1 on 04.05.2012 at 21.30.36,

22.32.31, 22.40.26, 22.48.49, 23.07.23 and 23.33.31 hours was the place Vellikulangara

and at 23.10.52 hours, it was the place Madappalli.

96. Learned counsel for the accused would contend that the tower location of

the mobile phone of PW1 was never at Vallikkad on 04.05.2012 and it would belie the

evidence of PW1 that he had seen the incident that took place at Vallikkad at 22.12

hours on that date.

This contention overlooks two facts.

In the first place, there is no

evidence that PW1 was carrying the mobile phone with him at about the time of the

incident. In fact, PW1 has asserted that the mobile phone was not with him at that time.

In the second place, it has come out in the evidence of PW152 that Vodafone Company

54

has no mobile phone tower at Vallikkad.

Of course, in Ext.P266 document issued by

PW152 it is shown that the tower location of the cell ID 60182 is Vallikkad. But, PW152

has clarified that it is a clerical mistake made by him in typing the details in the computer

and that on verification, it is found that Vodafone Company has no tower

at the place

Vallikkad in Kozhikode District. His testimony in this regard has to be accepted as true.

Ext.P267 is the computer generated details of the tower location of

Vodafone in

Kozhikode, Kannur and Kasaragode Districts.

Ext.P267 shows that the tower location

having the cell ID 60182 is Orkatteri -2 (Sl.No.475 in Ext.P267 document).

Therefore,

the presence of PW1 at the time and place of the incident cannot be doubted for the

reason that the call data records of his mobile phone number will not show the tower

location of his mobile phone at Vallikkad at any time on 04.05.2012.

97. Once the presence of a witness at the time and place of the incident is

found to be very much probable, his evidence requires scrutiny to find out its intrinsic

worth. Although in the matter of appreciation of evidence, no hard and fast rule can be

laid down, yet, in most cases, in evaluating the evidence of an interested or even a

partisan witness, it is useful as a first step to focus attention on the question, whether

the presence of the witness at the scene of the crime at the material time was probable.

If so, whether the substratum of the story narrated by the witness, being consistent with

the other evidence on record, the natural course of human events, the surrounding

circumstances and inherent probabilities of the case, is such which will carry conviction

with a prudent person.

If the answer to these questions be in the affirmative, and the

evidence of the witness appears to the court to be almost flawless, and free from

suspicion, it may accept it, without seeking corroboration from any other source. Since

perfection in this imperfect world is seldom to be found, and the evidence of a witness,

55

more so of an interested witness, is generally fringed with embellishments and

exaggerations, however true in the main, the court may look for some assurance, the

nature and extent of which will vary according to the circumstances of the particular

case, from independent evidence, circumstantial or direct, before finding the accused

guilty on the basis of his interested testimony. (See Hari Obula Reddi Vs. State of

Andhra Pradesh : (1981) 3 SCC 675 : A.I.R 1981 SC 82).

PW1 – Whether a Partisan or Interested Witness ?

98. Can PW1 be described as a partisan or interested witness? Interested

witness is one who is interested in securing conviction of a person out of vengeance or

enmity or due to disputes relating to properties (Ram Bharosey Vs. State of U.P: A.I.R

2010 SC 917). He would be a person who has a personal interest in the outcome of the

trial. The term 'interested' postulates that the person concerned must have some direct

interest in seeing that the accused person is somehow

or other convicted either

because he has some animus against the accused or for some other reason (See Dalbir

Kaur Vs. State : A.I.R 1977 SC 472).

99. A close scrutiny of the evidence of PW1 would show that nothing has

been brought out in his cross examination to find that he is an interested witness or a

partisan witness. There is no material to find that PW1 is an activist or sympathizer of

R.M.P.

He denied the suggestion made to him in the cross examination to that effect.

Then, it was suggested that his brother Pramod is a member of R.M.P. Close relatives

of PW1 may have affinity towards R.M.P or other political parties. It would not mean that

PW1 had any hostility towards the C.P.I (M) or its members.

It has come out in the

evidence of PW1 that the wife of his brother had contested Panchayath election as an

56

independent candidate. It would not mean that PW1 is a sympathizer of R.M.P. It was

then suggested to PW1 in the cross examination that he has become a witness in the

case as he was a close friend and associate of Ramachandran (CW2) who was a

worker of R.M.P.

There is absolutely no material to find that PW1 has got any special

interest in the case to see that the accused are somehow convicted.

100. Even otherwise, evidence of a witness who belongs to a rival political

party cannot be discarded on that ground.

In Myladimmal Surendran Vs. State of

Kerala: A.I.R 2010 SC 3281, the Hon'ble Supreme Court has held that political hostility

of witnesses towards the accused does not merit rejection of their evidence.

It was a

case relating to the murder of a local leader of Bharathiya Janatha Party and the

accused were C.P.I(M) workers.

Regarding the evidence of two eye-witnesses in that

case, the Apex Court held as follows:

“Merely because PW2 and PW3 are sympathizers of B.J.P, their evidence

cannot be brushed aside. At best, their evidence has to be carefully scrutinized.”

101. However, in the present case, there is no material at all even to indicate

that PW1 is an activist or sympathizer of R.M.P. He has no reason to falsely swear

against the accused.

Conduct and Reaction of PW1

102. Learned Senior Counsel Sri. M.K. Damodaran and Sri. B. Raman Pillai

have strongly urged that the conduct and reaction of PW1 on allegedly seeing the

murderous assault on the victim were not natural and it is sufficient to doubt his

presence at the scene of the incident when it occurred. Learned counsel would contend

that the conduct of PW1 in not making any effort to take the victim to the hospital and to

inform the police regarding the incident raises strong doubt as to whether he had

57

actually seen the incident.

103. PW1 has given evidence that he did not make any attempt to remove

the motor cycle which was lying on the legs of the victim.

He would say that it was a

horrid scene and it was even difficult to look at the victim. PW1 has deposed that he did

not make any attempt to give information regarding the incident to the police station or

the hospital over phone.

He would say that he did not go to the house of any person

who owned a vehicle. He did not make phone call to any such house to get vehicle to

take the victim to the hospital.

He did not cry aloud or make attempt to bring others to

the scene of the incident. When PW4 came to the scene of the incident, he did not tell

him that the had seen the incident.

Is the conduct of PW1 sufficient to make an

inference that he did not actually see the incident ?

104. In the oft-quoted decision in Rana Partap Vs State of Haryana: A.I.R

1983 SC 680, the Apex Court has held as follows:

“Every person who witnesses a murder reacts in his own way. Some are

stunned, become speechless and stand rooted to the spot. Some become hysteric and

start wailing. Some start shouting for help. Others run away to keep themselves as far

removed from the spot as possible. Yet others rush to the rescue of the victim, even

going to the extent of counterattacking the assailants. Every one reacts in his own

special way. There is no set rule of natural reaction. To discard the evidence of

witnesses on the ground that he did not react in any particular manner is to appreciate

evidence in a wholly unrealistic and unimaginative way”.

105. In Leela Ram Vs. State of Haryana: A.I.R 1999 SC 3717, the Hon'ble

Supreme Court has held as follows:

58

“The Court shall have to bear in mind that different witnesses react

differently under different situations: whereas some become speechless, some start

wailing while some others run away from the scene and yet there are some who may

come forward with courage, conviction and belief that wrong should be remedied. As a

matter of fact it depends upon individuals and individuals. There cannot be any set

pattern or uniform rule of human reaction and to discard a piece of evidence on the

ground of his reaction not falling within a set pattern is unproductive and a pedantic

exercise”.

 

106.

In Umesh Vs State: 2007 (4) Supreme 752, it has been observed as

follows:

“We are unable to accept the contention of the learned counsel for the

appellant that the conduct of the eye-witnesses is unnatural as they had not disclosed

the genesis of the incident to the members of the family of the deceased on the same

day or they had not immediately reported the matter to the police. On scrutiny of the

evidence of the eye-witnesses, we have no hesitation to hold that PWs-1 and 2 are

natural and truthful witnesses. Their evidence is cogent, reliable and convincing and

there is no good reason to disbelieve and discard their consistent and truthful version. It

is well-settled that every person who witnesses a murder reacts in his own way. There is

no set rule of natural reaction. To discard the evidence of a witness on the ground that

he did not react in any particular manner is to appreciate the evidence in a wholly

unrealistic and unimaginative way”.

59

has been held as follows:

“One of the reasons given by the Trial Court for rejecting the evidence of

Ranchhodbhai is that at the time of occurrence his conduct was not natural inasmuch as

that after he saw that his two companions were being given knife blows he neither

shouted for help nor after the occurrence told about the incident to anyone before

making the report to the police in the hospital. In our opinion the learned Trial Judge

committed a serious error in rejecting his evidence on this account totally ignoring the

fact that different persons react differently in different situations and circumstances. No

hard and fast rule of universal application with regard to the reaction of a person in a

given circumstance can be laid down. Most often when a person happens to see or

come across a gruesome and cruel act being perpetrated within his sight then there is a

possibility that he may lose his equilibrium and balance of mind and therefore he may

remain as a silent spectator till he is able to reconcile himself and then react in his own

way

There may be a person who may react by shouting for help while others may even

choose to quietly slip away from the place of occurrence giving an impression as if they

have seen nothing with

a view

to

avoid their

involvement, in any way, with the

occurrence. Yet, there may be persons who may be so daring, hazardous and chivalrous

enough to come forward unhesitantly and jump in the fray at the peril of their own life

with a zeal to scare away the assailants and save the victim from further assailants.

Thus, it is common knowledge that different persons react differently and no hard and

fast rule as to their behaviour can precisely be laid down in a defined way”.

108. Human behaviour varies from man to man. Different people behave and

react differently in different situations. Human behaviour depends upon the facts and

circumstances of each given case. How a person would react and behave in a particular

60

situation can never be predicted. Every person who witnesses a serious crime reacts in

his own way.

109. The post event conduct of a witness varies from person to person. It

cannot be a cast-iron reaction to be followed as a model by everyone witnessing such

event. Different persons would react differently on seeing any violence and their

behaviour and conduct would, therefore, be different. Therefore the conduct of a person

who witnesses the murderous attack in not informing the members of the family of the

deceased or not bringing the matter to the notice of the police cannot be said to be

abnormal (Rammi alias Rameshwar Vs. State of M.P : A.I.R 1999 SC 3544) Criminal

Courts should not expect a set reaction from any eye-witness on seeing an incident like

murder. If five persons witness one incident there could be five different types of

reactions from each of them. It is neither a tutored impact nor a structured reaction

which the eye-witness can make. Unless the reaction demonstrated by an eye-witness

is so improbable or so inconceivable from any human being pitted in such a situation it is

unfair to dub his reactions as unnatural. (State of Karnataka Vs Yarappa Reddy:2000

Cri.L.J.400).

110.

The effect on the mind of a person having witnessed

a gruesome

murder at the hands of a group of persons armed with lethal weapons and extremely

inimical to the eye witnesses, cannot be measured by any general yard-stick. It

necessarily depends on the mental make up of each individual person. Some may feel

so frightened that they would rue their decision which took them to the place of

occurrence and would take a long time to be their normal self, whereas some others

would not mind informing the police if they can conveniently do so without going out of

their way; still others may be highly public-spirited and may, therefore, feel so strongly

61

that they would in their enthusiasm go all out, as though inspired by missionary zeal to

contact the police and inform them about the crime (Apren Joseph Vs State of Kerala:

A.I.R 1973 SC 1).

111. No straight-jacket formula or principle can be laid down as to how a

particular person who witnesses a crime will react to such a situation.

It is not always

necessary that in a given situation similarly placed persons will react in the same

fashion. Much will depend on the fact situation of each incident and also the individual

behaviour of the person including his psyche. One may be timid or may be very bold. It

is also possible that a person otherwise timid in his life may turn out to be bold at a

particular moment or vice versa.

112. PW1 is a person who happened to see a ghastly and gruesome murder

by a group of persons who were armed with lethal weapons.

The scene after the

murder was horrid. Even if it is accepted that PW1 did not take any immediate steps to

get a vehicle to take the victim to the hospital and to inform the police regarding the

incident, his conduct cannot be considered as abnormal or unnatural.

He

had

a

nightmarish experience.

A murderous assault is often a heart-rending spectacle in

which even a witness wholly unconnected with the victim may also get a feeling of

revulsion at the grisly sight involving merciless killing of a human being in cold blood.

Crime is an event in real life. Court has to be realistic in its expectations from witnesses

and go by what would be reasonable based on ordinary human conduct with ordinary

human frailities.

Evidence has to be approached with a sense of reality, with an

awareness of life in its ordinary quality, and not from an unrealistic angle.

PW1 would

have, after some time, recovered from the shock of seeing the merciless murder. Then

he would have also reflected upon the consequences of informing the police that he had

62

seen the ghastly crime.

Now-a-days people keep themselves away from the police

station and the court unless it is inevitable.

Many would think of the trauma they may

have to undergo being a witness in a criminal case.

Independent witnesses may also

think that by giving evidence in a case of murder which has got political overtones their

life is at risk. It is a known fact that independent persons are reluctant to be a witness or

to assist the investigation.

Reasons are not far to seek.

Firstly, they believe that their

safety is not guaranteed by speaking the truth before the court.

Other reason may be

the delay in recording evidence and repeated adjournments in the court (Ambika Prasad

Vs. State : A.I.R 2000 SC 718). PW1 would have made a deliberation and introspection

of the consequences of disclosing to the police that he had seen the murder. Thereafter,

he came to the scene of the incident on the next day morning at about 11.00 hours and

disclosed before a senior police officer (PW165) that he could identify the car which was

involved in the incident. The evidence of PW1 cannot be discarded on the ground that

he did not make any effort to take the victim to the hospital or to give information

regarding the incident to the police at the earliest opportunity.

Absence of Blood on the Clothes of PW1

113. PW1 has deposed that his clothes did not get stained with blood when

he helped the police party to take the injured into the jeep. May be he did not notice

blood-stains on his clothes. May be he is not candid enough to admit that fact.

The

counsel for the accused have advanced the

submission

that

the police did not seize

the

clothes which PW1 was wearing at the time of the incident which would have got

stained with blood. Counsel urged that the fact that clothes worn by the witness at the

time of the occurrence were not seized by the police leads to a strong inference that his

clothes were not stained with blood which in turn shows that he did not help the police

63

to get the victim into the jeep.

114. The submission pertaining to non-seizure of the clothes of PW1

needs

to be noted and dealt with in the context of the decision of the Hon'ble Supreme Court in

Gurunath Donkappa Keri Vs.

State of Karnataka : A.I.R 2009 SC (Supp)1485: 2009

Cri.L.J 2995 wherein a similar contention was advanced on behalf of the accused

persons. Repelling the said contention, it was held

that the said fact merely points out

an error on the part of the investigating officer and the same, by itself, is not sufficient to

discard the entire prosecution case.

115. In Harpal Singh Vs Devinder Singh (1997) 6 SCC 660 : A.I.R 1997 SC

2914; 1997 Cri. L.J 3561, the Hon'ble Supreme Court has held as follows:

“If the clothes worn by the injured or the victims were not recovered by the

investigating team that perhaps would have provided a handle to the defence to attack

the prosecution case. But no investigating agency would normally take the trouble to

seize the clothes worn by witnesses at the time they saw the occurrence merely

because their clothes too had collected stains of blood during any post event activities.

At any rate, the said omission on the part of the investigating agency is not a flaw of that

type to invite the consequence of jettisoning his testimony”.

Evidence of PW1 Regarding the Incident – Reliability

116.

On a close scrutiny of the evidence of PW1 it can be seen that no

material contradiction or omission has been brought out in his testimony with regard to

the actual incident. Main thrust of the cross examination of PW1 was on matters which

may tend to affect the probability of his presence at the time and place of the incident,

identification of the assailants in the test identification parade and in the court,

64

identification of MO1 series swords as the weapons of offence and identification of the

car in which the assailants came to the spot of the incident. There is no contradiction or

omission worth mentioning in the evidence of PW1 regarding the incident in which the

deceased was murdered. In these circumstances, the evidence of PW1 that some

persons came in an Innova car and caused the car to hit on the motor cycle which the

deceased was riding and that six persons jumped out of the car and five of them hacked

the victim to death and that the other person was holding a bomb and that one of the

assailants hurled the bomb towards him, can be accepted as reliable and trustworthy.

The evidence of PW1 also proves that when PW4 Sub Inspector came to the spot, he

helped the police party to get the victim into the jeep and thereafter, he left the scene

and went to his house.

117.

Acceptability

and

reliability

of

the

evidence

of

PW1

regarding

identification of the car, identification of the assailants and also identification of MO1

series swords as the weapons of offence and their recovery shall be considered later.

Contentions Regarding the Testimony of PW2

118.

Reliability of the evidence of PW2 that he saw the incident of murder

can now be considered.

Learned counsel for the accused would contend that PW2 is

also a witness procured by the investigating officers at a later stage to give false

evidence before the court to suit the prosecution case shaped by them. It is contended

that PW2 was really not present at the scene of the incident when it occurred. Learned

counsel for the accused would urge that PW2 is not a reliable eye-witness in as much as

from his testimony and the attendant circumstances, it is clear that he has not seen the

occurrence.

It is pointed out that even according to the prosecution, the statement of

PW2 was recorded by the investigating officer only on 09.05.2012 and that no

65

satisfactory explanation has been offered by PW2 for the delay in disclosing the details

of the incident to the police and it demolishes his testimony. It is further contended that

he is a partisan and interested witness and no reliance

testimony.

Reliability of the Evidence of PW2

can be placed

upon his

119. The evidence of Sooraj Kumar (PW10), the Secretary of Brothers Club,

would show that PW2 was one of the persons who was engaged in the work of

decorating the premises of the club in connection with its anniversary.

But, it does not

mean that PW2 was present at the scene of the incident when it occurred.

120. The statement of PW2 was recorded by the investigating officer

(PW165) on 09.05.2012.

The evidence of PW2 is that on seeing the incident he was

very much scared and therefore, on the next day, he left his house and went to the

house of the brother of his father at Karthikapally which is at a distance of about six

kilometres and he stayed there till 09.05.2012. This is the explanation offered by PW2

for the delay in giving statement to the police.

121. Delay in giving statement to the police, does not necessarily, demolish

testimony.

As noticed earlier, there cannot be uniformity in human reaction.

Certain

witnesses in certain circumstances may get scared and may make themselves available

to the police only belatedly and thus recording of their statement by the police may get

delayed. In the present case, if PW2 had witnessed the incident, it is quite probable that

he got frightened and on account of fear, he made himself not available for interrogation

by the police.

One has to bear in mind that tension prevailed in the locality after the

murder. Therefore, merely on account of the delay in giving statement to the police, the

testimony of PW2 regarding the incident cannot be discarded. It is only natural that on

66

account of fear he avoided going to the police station immediately.

The ghastly and

gruesome crime must have sent a shiver in his spine and left him confounded. After a

few days, he would have mustered courage and proceeded to the police station.

122. PW2 has deposed that 8086149223 is the number of the mobile phone

which was being used by him before and after the incident. He would say that the cell

phone service connection is in the name of his co-worker by name Dhanesh. A specific

suggestion was made to PW2 in the cross examination that the mobile phone having the

number 8086149223 was in his possession on the date of the incident and on the days

before and after the incident. PW2 would say that he does not remember about it. He

has also given evidence that he was also using the mobile phone of his wife.

123. Ext.D26 is the call data record of the mobile phone having the number

8086149223 for the period from 04.05.2012 to 09.05.2012.

The service connection of

this mobile phone is provided by Vodafone Company. Ext.D26 has been proved through

PW152, the Nodal Officer of Vodafone Company.

124. Relying

upon

the

tower

locations

of

the

mobile

phone

number

8086149223, learned counsel for the accused would contend that PW2 was present in

his house and its locality during the period from 05.05.2012 to 09.05.2012 and therefore,

his testimony that he had gone to the house of the brother of his father at Karthikapally

and stayed there and that he came back only on 09.05.2012 cannot be accepted as

true.

125. The evidence of PW152 and Ext.D26 document reveal that the tower

location of the mobile phone number 8086149223 at 20.32.25, 21.39.50, 21.51.15,

22.44.00, 22.47.26, 22.50.54, 23.05.33, 23.26.11 and 23.41.45 hours on 04.05.2012

was the place Vellikulangara and at 23.09.01, 23.19.26 and 23.44.26 hours, it was the

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place Madappalli. The evidence of PW152 shows that Vodafone Company has no

mobile phone tower in Vallikkad.

There is no evidence as to under which tower the

place Vallikkad would come.

Therefore, Ext.D26 call data record does not help the

defence to prove that PW2 was not at the place of the incident at or about the time at

which it occurred.

126. The evidence of PW152 and Ext.D26 call data record would show that