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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 841 OF 2007

KANAKARAJAN @ KANAKAN                       … APPELLANT

VERSUS

STATE OF KERALA         …RESPONDENT

JUDGMENT

N.V. RAMANA, J.

1. This appeal is directed against the Judgment dated 8th

November, 2006 passed by the High Court of Kerala in

Criminal  Appeal  No.  1906 of  2004,  wherein  the High

Court  has  dismissed  the  appeal  preferred  by  the

accused/appellant  herein  and  upheld  the  order  of

conviction  and  sentence  passed  by  the  learned

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Additional Sessions Judge, Fast Track Court-I, Palakkad,

in Sessions Case No. 104 of 2002.

2. The material  available  on record reveals  that  initially

there were nine accused in this case against whom an

FIR  was  registered  at  9  am  on  6.3.2000  at  Kongad

Police Station for causing the death of one Rajesh and

injuring the complainant/Vinod (PW2), who happens to

be the cousin of the deceased. Since the accused No. 2

(Ayyappankutty) was found hanging from a tree on the

next day and was declared dead, charges were framed

only against the remaining accused under Sections 143,

147,  148,  302,  342 and 324 r/w 149 of  Indian Penal

Code, 1860 [hereafter ‘IPC’ for brevity]. The Trial Court

acquitted A3, A4, A6, A7, A8 and A9 of the charges and

convicted A1 (Kanakarajan) and A5 (Sukumaran) for the

offences punishable under Sections 143, 147, 148, 342

and 302 r/w 149 of IPC.  On an appeal, the High Court

acquitted A5 of all the charges but upheld the order of

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conviction  and sentence as  against  A1 (Kanakarajan)

who is before us in the present appeal.

3. The brief facts of the case as unfolded from the case of

prosecution is that, on the intervening night of 5th and

6th March,  2000,  an  ox  procession  was  going  on  at

Kunnappully temple at Tharakassery and several people

had gathered around the temple premises. At about 2

A.M,  accused  attacked  the  deceased  Rajesh,  with

deadly weapons such as swords and sticks, as a result

of  which  he  sustained  grievous  injuries.  When  the

complainant—Vinod (PW2) tried to intervene and stop

the accused,  he  too  was  beaten  up  by  the  accused.

While the general public started gathering at the place

of incident, the accused party took to their heels. With

the help of some of the people assembled there, PW2

took the injured Rajesh in his jeep to the Fort Hospital

where the doctor advised to shift the injured Rajesh to

the Medical College Hospital,  Thrissur.  On the way to

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the Medical College, Rajesh succumbed to the injuries

at about 5.30 A.M.  

4. Based  on  the  information  furnished  by  the

complainant-Vinod/PW2  (cousin  of  the  deceased),

Sub-Inspector  (PW  21)  at  Kongad  Police  Station

registered the case as Crime No. 56/2000.  PW22 (Circle

Inspector)  took  up  the  investigation  and  carried  it

through  to  a  larger  extent  and  his  successor,  Circle

Inspector (PW23) concluded the investigation and filed

the charge sheet against all the nine accused persons,

who pleaded not guilty and claimed trial.  

5. The prosecution in order to bring home the guilt of the

accused has produced 23 witnesses and the defense

has  produced  one  witness.  Out  of  the  aforesaid  23

prosecution witnesses, PW3 who was an eyewitness to

the incident, turned hostile. PWs 11 and 12, who were

witnesses  to  the  recovery  mahazar  (Ext.  P10),  also

turned hostile.  PW11 being the panch witness for the

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recovery  of  ‘vadival’,  allegedly  the  weapon  used  for

committing the crime, did not support the case of the

prosecution.  In  the  accused/appellant’s  statement

under Section 313, Cr.P.C, he had stated that on the eve

of  Kummati  festival  he  went  to  the  temple  to  pay

respects  to  the  deity  and  while  having  a  soda  drink

from a roadside shop, he saw a group of people running

into  the  temple  compound  and  heard  from someone

that Haridas, Vinod (PW2) and Rajesh (deceased) were

attacking Ayyappan Kutty (A2). While he was trying to

see  from  a  closer  point,  as  to  what  is  going  on,

someone  among  the  crowd  said  some  persons  have

taken away Ayyappan Kutty (A2).  On the next day i.e.

7.3.2000 at about 9.30 A.M, Ayyappan Kutty was found

hanging from a tree while his legs were touching the

ground and there were injury marks on A2’s body. When

he went to the police station to report the same, the

police arrested him and foisted a false case upon him,

though he had nothing to do with the incident.

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6. The Trial Court, after a full-fledged trial has come to the

conclusion  that  the  prosecution  could  not  prove  the

guilt  of  accused  A3,  A4,  A6,  A7,  A8  and  A9  beyond

reasonable doubt and acquitted them by extending the

benefit of doubt. However, the Trial Court found A1 and

A5 guilty  of  the  offences  and sentenced them under

Section 302, IPC to imprisonment for life and to pay a

fine  of  Rs.10,000/-  each  and  in  default,  to  undergo

rigorous  imprisonment  for  six  months.  Further  under

Section  342,  IPC,  the  accused  were  sentenced  to

undergo  rigorous  imprisonment  for  a  period  of  six

months under Section 143 and for a period of one year

under Section 148,  IPC.  The sentences were however

directed to run concurrently.

7. Aggrieved by the conviction both appellant/A1 and A5

carried the  matter  over  to  the High Court  in  appeal,

where the High Court gave benefit of doubt to A5 and

allowed his  appeal  by acquitting him of  the offences

charged.  The  appeal  of  appellant/A1  was  however

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dismissed by the  High  Court  as  being  devoid  of  any

merit,  thereby confirming the order of conviction and

sentence passed by the Trial Court.

8. We  heard  the  learned  senior  counsel  Mr.  R.  Basant

appearing for the accused/appellant. He contended that

the  entire  case  is  fabricated  and  foisted  one

suppressing the real  incident that had taken place in

order to falsely implicate the accused/appellant. He has

vehemently argued that the prosecution has concocted

the story to harass the accused by taking advantage of

his long standing rivalry with the deceased concerning

cutting of some rubber trees.  At the alleged place of

incident, which is a temple compound, there were more

than 10,000 people  present  in  addition  to  the  police

force stationed around the temple compound. He points

out that,  when an incident of such grave nature had

taken place  amidst  huge public  gathering  and police

force, it is impossible to not have a single independent

witness.

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9. Another vital aspect pointed out by the learned senior

counsel  is  that making PW2 a witness to the alleged

incident  is  an  afterthought  of  prosecution.  PW2—the

author  of  FIR  and  being  cousin  of  deceased,  in

connivance  with  his  brother-in-law  who  was  a

Sub-Inspector  of  Police  in  the  same  district,  is  the

mastermind in implicating the accused.  As a matter of

fact, on the night of the said incident, it was PW2 and

the deceased Rajesh who attacked A2 (the brother of

A1) and kidnapped him, due to their past enmity over

cutting rubber trees belonging to another brother of A1

and A2.  On the  next  day,  the  dead body of  A2 was

found  hanging  from  a  tree  under  mysterious

circumstances  with  his  feet  touching  the  ground.

Sixteen  (16)  ante  mortem injuries  were  found  in  his

body  and  some  greenish  poisonous  substance  was

found  oozing  from  his  mouth.  When  A1  visited  the

police  station  to  report  the  mysterious  death  of  A2,

instead the police arrested him in the present case. In

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order  to  save  PW2,  his  brother-in-law  being

Sub-Inspector of Police, concocted the prosecution story

and  falsely  implicated  A1  in  the  case.   On  A2’s

mysterious death,  the police had merely registered a

case  of  unnatural  death  and  no  proper  investigation

was  conducted  and  no  person  was  prosecuted  or

arrested.

10. Learned  senior  counsel  further  submitted  that

there was an inordinate delay of 24 hours on the part of

police in  presenting  the  FIR  before  the  court  and no

reason  has  been  given  by  the  prosecution  for  such

delay. He further contends that the motive behind the

crime, as alleged by the prosecution, is so trivial and

unbelievable, would not be a sufficient reason for the

accused to settle with such a heinous crime. Further he

submits that it was well known fact among the people

living  in  the  vicinity  that  the  deceased  Rajesh  was

known to be a person of bad character in the locality as

he has previously indulged in various illegal activities

and  had  disputes  with  several  people.  According  to

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learned  senior  counsel  this  fact  stands  corroborated

with  the  evidence  of  PW’s  2  and  4.  Doubting  the

reliability of prosecution witnesses, it is submitted that

out of the 23 prosecution witnesses, PW3 (eyewitness)

turned hostile. PW 11 (panch witness) did not support

the prosecution case on recovery of  alleged weapon.

The  presence  and  conduct  of  PWs  4  and  5

(eyewitnesses)  at  the  place  of  occurrence  is  highly

doubtful  because  despite  being  close  friends  of  the

deceased,  even after  witnessing the incident,  neither

did they accompany the injured to the hospital nor did

they take effort to register a case with the police. Their

statement was recorded by the police five days after

the incident. Even PW4 in his evidence did not mention

the name and presence of PW5 at the alleged scene of

offence.  Learned senior  counsel  has finally  submitted

that though the High Court discarded the statement of

PW2  as  his  presence  at  the  place  of  offence  was

doubtful but the High Court still  believed the story of

prosecution  and  convicted  the  appellant  while

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discharging  other  accused  by  giving  them benefit  of

doubt. Hence, he prayed that the judgment of the High

Court  is  perverse  and  that  it  is  based  on  wrong

reasoning, and therefore needs to be set aside by this

Court.

11. On the other hand, learned counsel appearing for

the State supported the prosecution case on all aspects

and submitted  that  the  reasoning  given  by  the  High

Court  in  convicting  the  accused  is  based  on  settled

legal  principles.  The  High  Court  clearly  recorded  the

finding  that  though  no  reliance  is  placed  on  the

testimony made by the prime witness (PW2), it may not

make  any  difference  in  fastening  the  liability  of  the

accused.  Hence, the impugned judgment does not call

for interference by this Court.

12. Having heard  learned counsel  for  both side and

after  carefully  analyzing  the  material  available  on

record, the following point falls for our consideration is

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(1.) “Whether the High Court is justified in convicting

the  accused  (A1)  and  (2.)  Whether  the  prosecution

could prove the guilt of the accused beyond reasonable

doubt”?

13. Looking  at  the  evidence  on  record  we  find  that

there are certain pivotal issues where the prosecution

has  failed  to  provide  a  satisfactory  explanation.  The

facts on hand reveal that the incident took place at 2

AM on the night of 5th and 6th March 2000. The place of

occurrence is in the compound of the temple. On that

day an ox procession was going on, there was a huge

gathering of people and also several police personnel

were  present  to  maintain  law  and  order.  Moreover

PW2-the eye witness, who happens to be the cousin of

the deceased, basing on whose information the criminal

law was set into motion. According to his statement a

police  constable  was  present  when  the  incident  was

taking place. Further he had tried to stop the accused

and was injured in the process. He carried the injured to

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the hospital at Pallakkad in his own jeep. Later he did

not  accompany  the  deceased  to  the  Medical  College

Hospital  Thrissur,  where  on  the  way  deceased

succumbed to the injuries. He came to know about the

death at 7:30 AM, he neither chose to go to the police

nor to the doctor for treatment and kept quiet till the

police came to him. According to PW2 there are several

houses and shops in the vicinity of the place where the

incident took place, PW3 who is cited as eye witness

turned hostile.            

14. The prosecution then relied upon the evidences of

PW4  and  PW5;  both  of  them  have  stated  to  have

witnessed  the  incident  and  are  cited  as  the

independent  witnesses.  It  is  to  be  noted  that  the

witness statements of PW 4 and PW 5 were recorded

five days after the incident. PW4 deposed that he is a

friend of deceased and got acquainted with PW2 after

the incident. He did not mention about the presence of

PW5  at  the  time  of  incident.  Admittedly  no  test

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identification  parade  was  conducted  and  he  did  not

know the names of accused persons as on the date of

occurrence. PW11, the panchwitness for recovery of the

weapon, has turned hostile. He deposed that he signed

the document without even knowing the contents of it.

15. As per PW21 the Sub Inspector of Police, several

policemen  were  on  duty  at  temple  premises.  As  per

PW22 the C.I of police PW4 told him that there were 3

constables present at the scene of crime. Neither PW4

nor PW5 disclosed to him that they knew the accused

before  the  incident.  They  also  did  not  mention  the

names  of  any  of  the  accused.  In  clear  terms,  he

admitted that though he had interrogated the people

near the place of occurrence, he did not include them

as  witness.  PW6  is  the  doctor  who  conducted  post

mortem  on  the  deceased.  PW18  is  the  doctor  who

examined the dead body of deceased Ayyappan Kutty

(A2). According to him the cause of death was due to

hanging.  In  the  report  he  mentioned  that  in  the

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stomach  portion  there  were  few  unidentified  food

particles  in  a  brownish  fluid  medium  emitting  an

insecticide smell. He also expressed the view that there

can be death of  the person or unconsciousness after

consuming  insecticide.  Evidently  there  were  16  ante

mortem injuries  on  his  body  and was  found hanging

from a tree with his feet touching the ground. There is

no  investigation  or  explanation  put  forth  by  the

prosecution for these injuries.  

16. The crucial evidence of DW1 is that on the evening

of 5.3.2000, he saw Rajesh (deceased) scuffling with an

Auto Rickshaw driver when A2 interfered and separated

them taking the side of Auto Rickshaw driver. Later in

the midnight, Rajesh (deceased) holding a liquor bottle

in one hand and knife in the other hand, attacked A2. At

that point of time, when people started gathering, 2-3

people had taken away Ayyappan Kutty (A2) from there.

The next  day at  9.30 am the body of  A2 was found

hanging from a tree with his legs touching the ground.

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17. In the backdrop of these facts and circumstance a

closer look at the evidence of prosecution witnesses, in

particular  PW2,  PW4  PW5,  PW11,  PW12,  PW21  and

PW22, would reveal that these witnesses are not cogent

and trustworthy to form basis to convict the appellant.

Admittedly the incident had taken place in the midst of

several hundred people and the prosecution witnesses

in  equivocal  terms  stated  that  the  police  personnel

were present. There is nothing on record to show that

the police constables available at the scene of offence

were examined or  that  they have played any role  in

preventing  the  accused.  The  conduct  of  PW2  in  not

accompanying the accused to the second hospital, not

giving the complaint to the police and not getting his

injuries treated raises serious doubts and supports the

case of the defense that PW2 is the king pin who has

implicated  the  accused  with  the  help  of  his

brother-in-law who is in the police department. Above

all  when  the  High  Court  disbelieves  the  presence  of

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PW2, at the scene of offence, it ought not to have taken

into consideration his evidence to convict the appellant.

The  prosecution  has  not  taken  minimum  care  to

examine the independent witnesses in support of their

case  and  particularly  when  it  is  nobody’s  case  that

independent witnesses were not available.

18. We  feel  that  non  examination  of  credible

independent witnesses in this case is very much fatal to

the prosecution’s case. Particularly when it is their own

case that there were several shops and houses in the

vicinity  and  several  people  were  present.  It  is  not

necessary that in each and every case on the ground of

non examination of independent witnesses the case of

the prosecution has to be brushed aside, if the evidence

of  prosecution  witnesses  is  consistent,  cogent  and

corroborated by other evidence it can be safely relied

upon, but  it  is  not  so in the case at  hand.  The High

Court  disbelieved  the  presence  of  PW2,  PW3  turned

hostile,  statements  of  PW4,  PW5 and  PW 22  do  not

inspire  confidence.  No  other  independent  witness  is

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examined.  PW11  the  panchwitness  for  recovery  of

weapon has also turned hostile  and deposed that  he

signed without reading the same. Moreover there is no

evidence to show any results of forensic examination of

the weapon so recovered. In our considered opinion the

High Court, while convicting the appellant, should have

been  more  cautious  while  weighing  the  evidence  of

these prosecution witnesses.

19. It  is  to  be  noted  that  the  High  Court  has

undertaken a scientific hypothesis to conclude that the

difference of time of death, between the deceased A2

and Rajesh, were not connected. High Court’s reliance

on conjectural  premise built  upon the timing of  rigor

mortis,  when  the  surrounding  circumstances  were

suspicious, would not be safe to be followed. The next

important  aspect  which  requires  our  consideration  is

non-explanation of the injuries on the body of deceased

A2.  The  death  of  deceased  A2  as  per  ocular  and

medical  evidence  appears  to  be  under  suspicious

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circumstances. It is a clear case of latches on the part

of prosecuting agency in conducting investigation goes

to the root of the matter. Non-explanation of the serious

injuries  on  the  body  of  the  accused  A2  by  the

prosecution is fatal in this case.

20. In  this  case the High Court  while  convicting the

accused has  overlooked settled  principles  of  criminal

law and in a mechanical way based its conclusion on

the premise that the injuries were not sustained in the

process of the same incident. In a case of this nature,

where the investigating agency utterly failed in its duty

to thoroughly investigate and find out the reasons for

the death of A2 who is alleged to be the prime accused

in  causing  the  death  of  the  deceased,  convicting  an

accused would not be safe.

21. The other ground put forth by the learned senior

counsel is in respect of motive. According to him the

motive attributed to the accused is that he had cut the

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rubber trees belonging to the brother of the accused

four  (4)  years  prior  to  the  incident  and  it  is  not  a

sufficient  motive  to  commit  such  a  heinous  crime.

Needless to say that in this case the motive is a double

edged sword, as it can be a reason for crime and at the

same time a reason for false prosecution specially when

the motive alleged is  of ill-will  and bad blood.  In the

present  case  evidence  on  record  does  not  inspire

confidence. Therefore, reliance on the motive would not

be safe and as such serves no purpose.   

22. The other glaring aspect is non-conduction of the

test identification parade. This aspect gains relevance

as PW4 and PW5, who are cited as eye witnesses to the

incident,  deposed  that  they  have  not  mentioned  the

names of the accused and that they did not know the

accused.  

23. Therefore  we  find  that  the  prosecution  case  is

filled  with  infirmities  and  lacunas,  therefore  the  only

possible  and  probable  course  left  open  is  to  grant

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benefit  of  reasonable  doubt  to  the  appellant  herein.

Resultantly,  the impugned judgment  is  set  aside and

the appeal is allowed. The bail bonds of the appellant

stands discharged.

..................................J (N. V. RAMANA)

.................................J (PRAFULLA C. PANT)

NEW DELHI DATED:  April 21, 2017