IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2170 of 2007()
1. AZIZ @ AZI, AGED 38,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :24/03/2008
O R D E R
J.B. Koshy & K.Hema, JJ.
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Crl. Appeal No. 2170 of 2007
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Dated this the 24th day of March, 2008
Judgment
Koshy,J.
A 29 year old youngster was alleged to be murdered in a
chicken centre run in the heart of Cochin city by the appellant and
nine others and it created a sensation in the city. Out of the ten
accused, accused No.4 died before committal of the crime and
accused No.10 died after committal and eight accused faced trial for
charges under sections 143, 147, 148, 120(B), 109, 365, 342, 323,
324 and 302 of the Indian Penal Code read with section 149 IPC.
Except the first accused, all others were acquitted of all charges and
appellant was convicted and sentenced to undergo life
imprisonment with a fine of Rs.5,000/- for offence punishable under
section 302 IPC. He was also convicted and senteced to undergo
rigorous imprisonment for one year each for the offence punishable
under sections 323 and 342, three years under section 324 and five
years under section 365 IPC. The sentences imposed under the
above sections were ordered to be run concurrently.
Crl. Appeal No.2170/2007 2
2. The charge framed by the court was as follows:
“That you all along with the 4th accused
who is no more, due to your previous enmity
towards deceased Sudheesh, armed with deadly
weapons and forming into an unlawful assembly
entered into a criminal conspiracy to kidnap and
kill Sudheesh by taking him to the Chicken
Centre of the first accused in building
No.C.C.63/1783 and accused Nos.1 and 5 on
4.1.2004 at about 5.30 p.m. riding the motor
cycles bearing Nos.KL-7T/4637 and KL-11/G
9836 reached the pathway at Palaparambu road
and forcibly abducted deceased Sudheesh, who
was found there along with charge witness Nos.
2 and 3 and after having taken deceased
Sudheesh thus to the chicken centre run by the
first accused, you all along with deceased 4th
accused wrongfully confined deceased Sudheesh
in the chicken centre and you all kicked,
stamped and man-handled him continuously till
10 p.m. on 4.1.2004 resulting in the fracture of
his ribs and rupture of his lungs and he died due
to the gravity of the injuries sustained by him
and thereby you all committed the offences u/ss
143, 147, 148, 120B, 109, 365, 342, 323, 324
and 302 r/w 149 IPC.”
This appeal is filed by the first accused who was convicted and
sentenced. The State did not file any appeal regarding acquittal of
the other accused.
3. PW1, brother of the deceased, gave first information
statement. According to him, on 4.1.2004 at about 10.30 p.m. a
friend of the deceased by name Nizar (CW15 – he was not
examined) telephoned him and told that the deceased was seen
Crl. Appeal No.2170/2007 3
dead in the shop of first accused at S.R.M. Road. He immediately
hired a car and went to the above shop along with some of his
friends. PW1 and his friends entered the shop and found his brother
lying dead. According to him, a number of visible injuries were also
seen on the dead body of the deceased. At about 12.30 in the night
he went to Town North Police Station and gave Ext.P1 first
information statement. He also identified a pocket diary alleged to
have been recovered from the first accused at the time of his arrest
as that belonging to the deceased. He also deposed that the
deceased was an accused in a criminal case wherein he is alleged to
have committed acts of violence in the very same chicken centre.
In the first information statement, he also stated that A1 to A5 and
others are the main suspects. PWs 2 and 3 are the friends of the
deceased. They were examined by the prosecution to prove that
deceased was found in their company on the evening of 4.1.2004 at
about 5.30 p.m. when he was kidnapped by accused Nos.2 and 5,
but, PWs 2 and 3 denied these suggestions and they were declared
hostile. No part of their examination was helpful to the prosecution.
PWs 4 and 5 are husband and wife. They are running a petty shop
adjacent to the railway line from where the deceased was alleged to
have been adbucted by the assailants. They were cited by the
Crl. Appeal No.2170/2007 4
prosecution to prove that they found the deceased being forcibly
dragged by accused Nos.1 and 5 to the chicken centre of the first
accused, but, all these witnesses also did not support the
prosecution and they were also declared hostile.
4. PW5 participated in the identification parade. In the
identification parade, he identified accused No.5, but, he did not
identify him in the court. PW6 supported to the prosecution to the
extent that on 4.1.2004 at about 5.30 p.m. he found the deceased
being forcibly dragged by two persons through the railway line
adjacent to his residential house. But, he did not identify those
persons in court, but, in the identification parade, he identified
accused Nos.5 and 7. So, his evidence also will not connect the first
accused, the appellant in this case, with the incident. PW7 is a
friend of the deceased. He was examined by the prosecution to
prove the case that the deceased was forcibly taken to the shop of
A1 on the evening of 4.1.2004, but, he only deposed before the
court that he saw two persons dragging the deceased forcibly
through the railway line. According to him, one among the
miscreant was the eighth accused in the dock and he stated that he
is not in a position to identify the other. So, PW7 also did not
identify A1 as the person who has forcibly taken the deceased to the
Crl. Appeal No.2170/2007 5
chicken shop and he also did not say that the first accused was
conducting the chicken shop where the deceased was dragged and
killed.
5. PWs 8 and 9 were also examined by the prosecution
to prove its case that the accused was the owner of the shop at
S.R.M. Road. They did not support the prosecution case before the
court and they failed to identify the persons who dragged the
deceased. PW8 identified A5, A7 and A8 in the test identification
parade. He also did not give any evidence to connect the first
accused with the incident. PW10 is another friend of the deceased.
He gave evidence to the effect that PW11 told him that A1 and A2
dragged the deceased through the railway line to the chicken
centre. He got the information from PW11 at 4.30 p.m. PW10
suspected that the deceased was taken to the chicken centre. He
also deposed that he went to the friends of the deceased and told
them that first accused and his associates were seen in front of the
chicken centre. But, we have already seen that PW8 did not support
such a case of the prosecution. According to PW10, he,
accompanied by other friends of the deceased, came to the shop
and found that all the lights in the shop were switched off and the
front gate was locked. He along with PW12 entered the chicken
Crl. Appeal No.2170/2007 6
shop from behind and found the deceased lying dead inside the
shop. He identified the deceased in the light of his mobile phone.
PW10 also deposed that three or four persons were running from
the compound of the chicken centre by climbing over the wall, but,
they could not identify who are those persons due to darkness.
PW11 deposed that he saw deceased Sudheesh at 4.30 p.m. on
4.1.2004 by the side of the railway track. According to him, when he
came to the nearby petty shop after having participated in a football
match, PWs 2 and 3 came to him and told that they found Sudheesh
being forcibly taken away by accused Nos.1 and 2 through the
railway line. So, he had also only hearsay information and evidence
of PWs 2 and 3 show that they had not seen A1. According to him,
he immediately passed on the information to PW10 with whom he
went to the nearby place to inform the matter to the other friends of
Sudheesh. He also deposed that along with PW10, he also came to
the chicken centre at 9.30 p.m. and found Sudheesh lying dead in
the chicken centre near the railway track. According to PW12, at
about 6.30 p.m. PWs 10 and 11 together came to him and told that
first accused and his associated kidnapped Sudheesh and thereafter
PW10 proceeded to the chicken centre. He also deposed that PW8
Sachin came to him and told that he was called to the chicken
Crl. Appeal No.2170/2007 7
centre by A1 and made the witness to see the deceased in a
pathetic condition lying inside the chicken centre. PW8 has no such
case when he was examined. PW13 was examined by the
prosecution to prove that the chicken centre was being run by the
first accused in partnership with PW13, but, he refused to support
the prosecution case. PWs 14 and 15 were examined by the
prosecution to prove the case regarding the criminal conspiracy
allegedly hatched by accused Nos.1 to 9. They became completely
hostile to the prosecution and their evidence were of no help to the
prosecution. PW16 was examined by the prosecution to prove its
case that on the evening of 4.1.2004, he found accused Nos.1 to 9
together in the chicken centre of the first accused, but, he did not
support the prosecution case. PW17 is the father-in-law of the first
accused. He was also examined to prove that the chicken centre
was run by the first accused, but, he deposed that the chicken
centre was owned by his son Noufal who, at the time of incident,
was working at abroad. He further deposed that the chicken
centre at that time was entrusted to fourth accused and he was
running the shop. He categorically deposed that at no point of
time the first accused was given possession of the chicken centre.
He was also declared hostile. His evidence is also damaging to the
Crl. Appeal No.2170/2007 8
prosecution. During cross-examination, he also stated that his
daughter while studying for MBBS was married to A1 against his
consent and they are not in good terms. PWs 18, 19 and 20 are
only mahazar witnesses and their evidence has nothing to connect
A1 with the incident.
6. PW21 deposed that he was residing at Coimbatore
and on 11.1.2004 at about 7.30 p.m. while he was walking along the
road he found the jeep of Kerala police and a crowd adjacent to it.
He approached the gathering and found that first accused was with
the Kerala Police. Police recovered Ext.P2 pocket diary from the
possession of the first accused and he signed Ext.P17 mahazar. This
is the only evidence brought through PWs 1 to 17 to connect the
first accused with the crime, but, in cross-examination, PW21 stated
that he was a close friend of PW1. He did not come to the court for
giving evidence on receipt of summons, but, as requested by PW1
he had attended the court proceedings on all days and even when
this case was taken up in court. He also deposed that he and PW1
were friends and he was residing at Coimbatore about 10 k.ms.
away from the place where the recovery was made and his work
place is 20 k.m. away. He had no explanation why at 7.30 p.m. he
was at that place where the police arrested the accused. The
Crl. Appeal No.2170/2007 9
suggestion put forward by the defence was that Ext.P17 mahazar
was signed at the Ernakulam North Police Station. Even though
large number of people gathered there when A1 was arrested, no
local residents were made as witnesses. No evidence was also
adduced to show that at the relevant time PW 21 was residing at
Coimbatore. It is also pertinent to note that his address is not
written in the mahazar, it is very difficult to believe that A1 who is
alleged to have forcibly taken the deceased to the chicken centre
and killed him and also inflicted injuries on the deceased and kept
the pocket diary of the deceased in his pocket for one week so that
at the time accused was arrested police can recover the same. It
shows that evidence of PW21 and recovery of diary from the pocket
of first accused is artificial and on that basis alone the accused
cannot be connected with the crime.
7. PW25 conducted postmortem of the body of the
deceased and issued Ext.P21 certificate which clearly shows that
several injuries were inflicted on the accused. There were a total of
33 abrasions and contusions including fracture on the body of the
deceased. Information as to the cause of death was injuries to the
chest. He also stated that injury Nos.30 and 31, namely:
Crl. Appeal No.2170/2007 10
“31. Contusion of chest wall 10 x 8 c.m. on
left side. Fracture of ribs on left side at multiple
places involving ribs 3 to 10. Left lung collapsed’
Lung laceration 3 x 1 x 0.5 c.m. involving lower
lobe left side. Left chest cavity contained two
hands full of fluid blood; and
32. Fracture of ribs 3 and 7 on right side
close to starnum and lungs normal.”
are sufficient in the ordinary course of nature to cause the death of
the deceased. Doctor also gave evidence that those fatal injuries
can be caused by hitting with a weighing lock of two kilograms
which is produced before the court and marked as MO9. Evidence
of the doctor clearly shows that the deceased was stamped, kicked
and battered with MO9 weighing block and he died due to the
gravity of such injuries sustained by him. Evidence of the doctor
also shows that the dead body was found at the chicken centre at
S.R.M. road. The other documents relied on by the prosecution to
connect the first accused to the incident other than Ext.P2 pocket
diary were Exts.P45 and 46. Ext.P45 is the first information
statement given by the first accused regarding an attack by the
deceased in the chicken centre on 10.4.2003. Ext.P46 is the
charge sheet in the above case. It is contended by the learned
counsel for the accused that the above FIR and the final charge
report cannot be relied on as it was not proved by examining the
Crl. Appeal No.2170/2007 11
investigating officers in that case. The person who recorded the
first information statement and who filed the final charge sheet
were not examined. Therefore, contents of Exts.P45 and P46 cannot
be relied on. Further, it is submitted that shop number given in the
above first information statement and the number of the chicken
shop where the incident took place is also different. As far as first
accused is concerned, there is no evidence to connect the first
accused in the crime. Prosecution also failed to prove that the
chicken centre was conducted by the first accused. On the basis of
Exts.P45 and P56, he cannot be treated as the person who was
conducting the shop at the relevant time. According to PW9, the
shop was conducted by A4. PW17 also confirmed the same. Fourth
accused died before trial. None of the witnesses has stated that
they have seen accused No.1 among the persons who dragged the
deceased through the railway line to the chicken centre. Even if the
chicken centre was conducted by A1, it cannot be stated that he has
got anything to do with the murder of the deceased. Prosecution
also failed to produce Corporation licence, ownership details etc.
regarding the chicken centre. Apart from surmises, there is
absolutely no evidence to connect the first accused with the crime.
It is well settled law that unless the prosecution proves the case
Crl. Appeal No.2170/2007 12
beyond doubt, nobody can be convicted for an offence. In this case,
absolutely there is no evidence to connect the first accused with the
crime. Mere suspicion is not enough for convicting an accused
especially for serious offence punishable under section 302 IPC.
8. After consideration of the evidence, we are of the
opinion that prosecution has failed to prove beyond reasonable
doubt that appellant/accused No.1 is guilty of any of the charges
levelled against him. In the above circumstances, we set aside the
conviction and sentence imposed on the appellant/accused No.1.
The judgment of the trial Judge is set aside. Therefore, the
appellant/accused No.1 is acquitted and he should be set free
forthwith if he is not required in any other case.
J.B.Koshy
Judge
K. Hema
Judge
vaa
Crl. Appeal No.2170/2007 13
J.B. KOSHY
AND
K.HEMA ,JJ.
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Crl.Appeal No. 2170 of 2007
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Judgment
Dated:24th March, 2008