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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. VINOD CHANDRAN, C. JAYACHANDRAN, JJ.
Habeeb S/o Ummar – Appellant
Versus
State of Kerala – Respondent
Criminal Appeal Nos. 254, 325, 343 of 2015
Decided On : 22-12-2021
Code of Criminal Procedure, 1973 - Section 161, 173 - Indian Penal Code, 1860 - Section 326 and 307, 149, 120-B, 34 - Evidence Act, 1872 - Section 27 - Criminal Conspiracy - Attempt to Murder - Whether he saw A6 in Ritz Car, he denied same and he was declared hostile - Whether C.I. had pointed out accused; he said that accused were pointed out by him; definitely not in a properly constituted TIP.
Finding of the Court:
Identification of accused to be not trust worthy - There was the defect of I.O. C.I. and S.I. having jurisdiction, not having recorded FIS from scene of occurrence, where they were available for two hours and deputing another to take statement from the injured, much later - FIS also left out very relevant aspects, presence of PW-3, later projected as an eye-witness and absence of A5, a neighbour and resident of locality - There is also very relevant fact of S.I. who reached spot first, having admitted that he was told that attack was by masked men - To cover up this FIS is alleged to have been recorded from PW albeit with delay - Witnesses were also admittedly shown to eye-witnesses from police station and no attempt was made to hold a TIP; despite witnesses admitting no prior acquaintance with accused - Coupled with these discrepancies, non-furnishing of copies of Section 161 statements, which were recorded in writing, causes serious prejudice to accused - Accused allege trumped up charges based on planted witnesses and there is sufficient cause to find prejudice - We find conviction of guilt entered by Court to be erroneous for reason of complete absence of evidence, incriminating A1 to A5 on whom overt acts were alleged and not at all, as against A6 to A11 who were roped in for conspiracy, said to have been hatched - We overturn conviction as entered by court and acquit accused.
Result: Appeals are allowed.
JUDGMENT :
K. VINOD CHANDRAN, J.
1. Conspiracy, political enmity and mistaken identity together resulted in the murder of an innocent person, leaving his family rudderless. Equally rudderless was the investigation, accuse the defence of whom A1 to A4 were arraigned for their antecedents and A5 to A11 for their political affiliation. A8 died when the appeal was pending. The legal heirs of A8 is impleaded and they challenge the conviction.
2. On the night of 02.03.2014 at about 8.45 or 9.15 p.m. PW-1 and PW-2 along with the deceased were sitting in a heap of sand, in the property of PW-7, where a residential construction was going on. PW-3 joined them and while they were chatting, A1 to A5 arrived at the spot with lethal weapons. The assailants attacked the deceased, PW-1 and PW-2 resulting in the death of the former and grievous injury to PW-1 and PW-2. The prosecution case is that A1 to A4 are goondas, who were engaged by the rival political party, on a ‘quotation’ to murder PW-48, an active member of a political party. A5, an affiliate of the CPI (M) and a neighbour of PW-48, accompanied A1 to A4 to the scene of occurrence so as to identify him, an active member of BJP. At the scene of occurrence, A1 to A4 unleashed violence with lethal weapons resulting in the murder and grievous injury. A6 to A11 were alleged to be active participants in the conspiracy to murder PW-48, preparation for the crime, including A1 to A4's transport to the locality, then to the scene of occurrence and later to help the assailants flee the locality.
3. At the trial, the prosecution examined PW-1 to PW-55, through whom were marked Exts.P1 to P117 and material objects MO1 to MO36. The defence examined DW-1 to DW-14 and marked D1 to D5, D7 to D11, D13 and D14 contradictions and D6, D12 and D15 to D27 documents. At the close of trial, A9 was acquitted and A1 to A8, A10 and A11 were found guilty of various offences. A1 to A5 were found guilty for the offences under S.120-B, 143, 147, 148, 302, 307, 326 and 201 of the Indian Penal Code [for brevity ‘IPC’] read with S.149 IPC as also under S.27 of the Arms Act. Each of them were sentenced to undergo (i) imprisonment for life and fine of Rs. 50,000/- each under S.302 IPC read with 149 IPC, (ii) R.I. for 7 years and fine of Rs. 10,000/- under S.307 IPC read with 149 IPC, (iii) R.I. for 5 years and fine of Rs. 10,000/- under S.326 IPC read with 149 IPC, (iv) R.I. for a period of 3 months under S.143, 147 and 148 IPC, (v) R.I. for a period of 1 year and fine of Rs. 5,000/- under S.201 IPC and (vi) R.I. for a period of 3 years and fine of Rs. 5,000/- under S.27 of Arms Act with default sentences for non payment of fine. Accused Nos. 6 to 8, 10 and 11 were found guilty of the offence under S.120-B and each were sentenced to undergo imprisonment for life and fine of Rs. 50,000/- with default sentence under S.302 read with 120B IPC. Accused 6 and 11 were also found guilty for the offence under S.212 for which each was sentenced to undergo R.I. for two years and a fine of Rs. 10,000/- with default sentence.
4. According to the prosecution a conspiracy was hatched on 28.02.2014 by A1 to A8, A10 and A11 to commit the murder of PW-48. In furtherance of the conspiracy, A6 procured the services of A1 to A4, history-sheeters and brought them from Pudukkad to the CPI (M) party office at Perinjanam, in his car. A1 to A4 were then taken to the house of A5, where A8 instigated the history-sheeters to commit the murder of PW-48, who used to frequently visit the nearby construction site, of one Shaji, at night. A5 was entrusted with the task of identifying PW-48. On 02.03.2014 at around 20.42 hours, A9 informed A7 over phone that PW-48 was present at the scene of occurrence and A7 took A1 to A5 in his autorickshaw to the scene of occurrence. On A5's guidance, A1 to A4 attacked the persons sitting on a heap of sand at the construction site. After the attack unleashed on the victims, A5 took the others to the party office at Perinja
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