Back
2024 Supreme(SC) 393
SUPREME COURT OF INDIA
B.R. GAVAI, SANDEEP MEHTA, JJ.
Suresh @ Unni @ Vadi Suresh – Appellant
Versus
The State of Kerala – Respondent
Criminal Appeal No. 2332 of 2024 [Arising out of Special Leave Petition (Criminal) No.1414 of 2021]
Decided On : 30-04-2024
For the Petitioner(s): Mr. A. Sirajudeen, Sr. Adv. Ms. Manjeet Chawla, AOR (SCLSC) Mrs. Usha Pant Kukreti, Adv.
For the Respondent(s): Mr. Alim Anvar,Adv. Mr. Nishe Rajen Shonker, AOR Mrs. Anu K. Joy,Adv.
IMPORTANT POINT
Murder – Conviction only on the basis of identification of accused in Court for first time after four and half years of incident would not be sufficient for maintaining the same.
Headnote:
Explosive Substances Act, 1908 – Sections 3(a) and 4(a)(i) – Arms Act, 1958 – Section 27(1) – Indian Penal Code, 1860 – Sections 302, 307,143, 147, 148, 324, 326, 427 and 449 read with Section 149 – Murder, attempt to murder, hurt and house trespass – Common object of unlawful assembly – Conviction and sentence – Conviction only on the basis of identification of accused in Court for first time after four and half years of incident would not be sufficient for maintaining the same – Motive is attributed only to Accused No.1 and not to present Appellant – Prosecution also relied on recovery of iron rod allegedly on memorandum of present Appellant under Section 27 of Indian Evidence Act, 1872 – However, recovery was made after about 2 years and 2 months – As such, no credence could be given to recovery – Possibility of mistaken identity also cannot be ruled out – Prosecution has failed to prove case beyond reasonable doubt – Appellant acquitted of all charges charged with. (Paras 14, 15, 16, 17, 18 and 19)
Facts of the case:
Present appeal challenges the judgment and order dated 06th December, 2012 passed by the Division Bench of High Court of Kerala at Ernakulam (“High Court” for short) in Criminal Appeal No. 871 of 2011 wherein High Court partly allowed Criminal Appeal preferred by Appellant, and set aside conviction of Appellant under Sections 3(a) and 4(a)(i) of Explosive Substances Act, 1908 and Section 27(1) of Arms Act, 1958 while confirming conviction of present Appellant under Sections 302, 307,143, 147, 148, 324, 326, 427 and 449 read with Section 149 of Indian Penal Code, 1860 as recorded by Additional Sessions Judge, Ernakulam in Sessions Case No.465 of 2008. High Court also reduced sentence of Appellant awarded under Section 307 read with Section 149 of the IPC from life imprisonment to rigorous imprisonment for 10 years along with a fine of Rs. 10,000 and further modified amount of fine payable for commitment of offence punishable under Section 302 read with Section 149 of IPC as awarded by trial court from Rs. 01 lakhs to Rs.10,000. Insofar sentences for offences punishable under remaining Sections were concerned, High Court upheld order passed by trial court.
Findings of Court:
Judgment and order dated 30th March 2011 passed by Additional Sessions Judge, Ernakulam in Sessions Case No. 465 of 2008 and judgment and order dated 6th December 2012 passed by High Court of Kerala at Ernakulam in Criminal Appeal No.871 of 2011 are quashed and set aside. Present appellant is acquitted of all charges charged with. He is directed to be set at liberty forthwith, if not required in any other case.
Result : Appeal allowed.
JUDGMENT :
B.R. Gavai, J.
1. Leave granted.
2. This appeal challenges the judgment and order dated 06th December, 2012 passed by the Division Bench of the High Court of Kerala at Ernakulam (“High Court” for short) in Criminal Appeal No. 871 of 2011 wherein the High Court partly allowed the said Criminal Appeal preferred by Suresh @ Unni @ Vadi Suresh, the present Appellant, and set aside the conviction of the present Appellant under Sections 3(a) and 4(a)(i) of the Explosive Substances Act, 1908 and Section 27(1) of the Arms Act, 1958 while confirming the conviction of the present Appellant under Sections 302, 307,143, 147, 148, 324, 326, 427 and 449 read with Section 149 of the Indian Penal Code, 1860 (“IPC” for short) as recorded by the learned Additional Sessions Judge, Ernakulam (hereinafter referred to as the ‘trial court’) in Sessions Case No.465 of 2008. The High Court also reduced the sentence of the present Appellant awarded under Section 307 read with Section 149 of the IPC from life imprisonment to rigorous imprisonment for 10 years along with a fine of Rs. 10,000 and further modified the amount of fine payable for the commitment of the offence punishable under Section 302 read with Section 149 of the IPC as awarded by the trial court from Rs. 01 lakhs to Rs.10,000. Insofar sentences for the offences punishable under the remaining Sections were concerned, the High Court upheld the order passed by the trial court.
3. Shorn of details, the facts leading to the present appeal is as follows:
3.1 On 06th March, 2006, at about 10:55 a.m., the Control Room, Ernakulam received information about an unlawful assembly that had broken into a video shop run by Ajeesh (PW- 2) with the common object of murdering him and had thereafter proceeded to cause grievous injuries to PW-2 and his friend Kapil (hereinafter referred to as ‘the deceased’) with deadly weapons, before hurling country-made bombs into the said video shop and an adjacent grocery store, run by PW-2’s father, and had subsequently fled from the scene. On receiving the said information, the ASI (PW-6) along with a flying squad reached the spot of the incident, where they found the deceased in an injured state and took him to RCM Hospital, Tripunithura, where he was declared dead upon medical examination. In the meanwhile, Jaimon (PW-1) who was an eyewitness to the incident, received information about the death of the deceased while he was at Medical Centre, Ernakulam where the injured PW-2 was being treated. Thereafter, PW-1 went to Hill Palace Police Station, Tripunithura and furnished a statement (Ext. P1 F.I.) on the basis of which a First Information Report (“FIR” for short) being Case Crime No. 137 of 2006 was registered against the members of the unlawful assembly. Subsequently, the post mortem of the deceased was conducted wherein it was concluded that his death had been caused by a stab injury involving the aorta.
3.2 The prosecution case is that Ajeesh (PW-2) and his father Rajappan were close to the family of one Vidyadharan who had been kidnapped and murdered by a group led by Jaison (Accused No.1) on account of prior enmity between them, since Vidyadharan had opposed the drug trade which was led by Jaison (Accused No.1). In the investigation and trial that followed, PW-2 and his father lent their assistance to the prosecution case therein, which instigated Jaison (Accused No.1) and 10 of his other associates, including the present Appellant, to hatch a criminal conspiracy to commit the murder of PW-2. Pursuant to the same, on 06th March, 2006 at about 10:45 a.m., the 11 accused persons formed an unlawful assembly with the common object of murdering PW-2, and set out in a silver Qualis car towards the video shop run by PW-2 under the name of ‘Kalaya Videos’, which was situated in a building bearing No.7/274 of Udayamperoor Panchayat, near Kochupally Junction. The car bore a fake registration plate and had been rented from Ajith (PW-9) by Jaison (Accused No.1) af
