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IN THE COURT OF SESSION, KOZHIKODE DIVISION


Present : R.Narayana Pisharadi, Special Additional Sessions Judge
(Marad Cases), Kozhikode.
Tuesday, the 28th day of January, 2014
(8th 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.

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.

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.

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.

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.

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

4) Plea of the accused


5)

Finding

6) Sentence or order

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.

Not guilty.

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.

(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

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.

(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. He was under
detention during the period from 16.05.2012 to
23.08.2012. This period shall be set off against
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

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).

Sri. M. Suhaib,

8) Name of the committing


Magistrate

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

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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.
11) Date of Service of copy
to the accused.

28.01.2014

JUDGMENT

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.

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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 Honble
High Court and as there was a direction by the Honble 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
Honble 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

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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 object of which was to commit murder of
T.P.Chandrasekharan?
(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

20

number plate 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 murder of T.P.Chandrasekharan, assisted the first accused to
conceal/abscond with the intention of screening the first accused from legal
punishment ?
(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

25

conducted autopsy on the body of 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

30

jeep.
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. PW1 would say that there was
also bright moon light at the time of the incident.
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 bloodstains 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.
Testimony of Ramesan @ Dinesan (PW2)
39.

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

32

the road. 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. The assailants got into the Innova car
and left the place.
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.

33

41. PW2 has identified 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)
44.

PW3 Maneesh Kumar is yet another eye-witness to the murder.

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 KainattiKuttiadi 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.
49. PW3 has also testified that he could not at that time identify the person

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. He went to his
house after the incident.

He came to know that the person 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. It is also contended that they are highly interested and partisan witnesses
and their evidence regarding the incident cannot be accepted as reliable and
trustworthy.
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.
57. Ext.P11(a) is the relevant page in Ext.P11 minutes book which contains

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
the date of the anniversary of the club as 05.05.2012.

The very fact that Ext.P11

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 eyewitness 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).
62. PW1 is a person residing in the locality. It is true that he was not a

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.
Absence of Details in the Remand Reports
63. Learned Senior Counsel Sri. M.K. Damodaran and Sri. B. Raman Pillai
would 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 eyewitnesses to the incident.
68. Ext.C11 is the remand report filed by Dy.S.P Santhosh (PW166) on

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. The names of PW1 and CW2 are not
mentioned in Ext.C8 report.
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). The names of PW1 and CW2 are not
mentioned in Ext.C9 report.
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. Noncompliance 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 officers at a later stage to project the
prosecution case in a partisan manner.

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)
84.

Manoj Kumar (PW125) was a Civil Police Officer of Vatakara Police

49

Station on the date of the incident. 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 substations 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 Honble 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

53

to by the witness or not.


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.
107. In Marwadi Kishor Parmanand Vs State of Gujarat : (1994) 4 SCC 549, it

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.
nightmarish experience.

He had a

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 can be placed upon his
testimony.
Reliability of the Evidence of PW2
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

67

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
on 05.05.2012, the tower locations of the mobile phone number 8086149223 at various
times were Vellikulangara, Madappalli, Kozhikode, Payyoli, Vadakara and Orkatteri and
from 06.05.2012 to 09.05.2012, almost all the time, it was Vellikulangara. On the basis
of this data, it is contended by the accused that PW2 was at Kozhikode on 05.05.2012
and he was at his house during the period from 06.05.2012 to 09.05.2012.

The

evidence of PW2 shows that his house is at Vallikkad. As noticed earlier, there is no
evidence as to under which mobile phone tower of Vodafone Company the place
Vallikkad is situated. PW2 is alleged to have stayed at the house of his relative at
Karthikapally from 05.05.2012 to 09.05.2012. There is also no evidence as to under
which mobile phone tower of Vodafone Company the place Karthikapally is situated.
Moreover, there is no evidence that PW2 was carrying the mobile phone having the
number 8086149223 with him when he went to the place Karthikapally. Further, the
service connection of that cellphone, according to PW2, is in the name of his co-worker
Dhanesh.

PW2 has given evidence that Dhanesh was also using the aforesaid

cellphone. In these circumstances, on the basis of Ext.D26 call data record, the defence
could not establish that PW2 was present in his house and its locality during the period
from 05.05.2012 to 09.05.2012 and that his presence at the place Karthikapally during
that period is highly improbable.

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127. Before analysing the evidence of PW2 any further, what happened
during his cross examination has to be adverted to. Examination-in-chief of this witness
was held on 12.02.2013 and it was continued on 15.02.2013. He was cross-examined
on 15.02.2013 itself. When his cross-examination was resumed after lunch-break on
that day, PW2 found it difficult to properly answer the questions put to him. Learned
counsel Sri. B.Raman Pilla who was conducting cross-examination then submitted that it
appeared to him that the witness had consumed alcohol.

The court then sent the

witness for medical examination. The witness was admitted in the Medical College
Hospital, Kozhikode. Medical examination of PW2 on 15.02.2013 showed that he was
not drunk.

The medical certificate issued from the hospital showed that he had

symptoms of chest discomfort and decreased verbal output. Further cross examination
of PW2 was conducted only on 23.04.2013 after he was discharged from the hospital.
128. The aforesaid facts have been adverted to here in the context that some
of the answers given by PW2 during the cross-examination on the two days, that is,
15.02.2013 and 23.04.2013, are at variance with each other.
129. A specific suggestion was made to PW2 in the cross-examination that he
was an activist of R.M.P but he denied it. During his examination on 15.02.2013 PW2
has deposed that he was not aware whether his brother Balan is an activist of R.M.P.
However, during the examination on 23.04.2013 he would say that Balan is an activist of
R.M.P. PW2 denied the suggestion made to him that he was the election agent of
T.P. Chandrasekharan in the Lok Sabha elections held in the year 2009. During the
examination on 15.02.2013, PW2 has deposed that he does not know Sadasivan. He
would say that he does not remember whether Sadasivan had contested the

69

Panchayath election in Ward No.4 of the Chorode Panchayath in which he is residing.


He denied the suggestion made to him that he was the election agent of Sadasivan. He
would say that he had not acted as booth agent in any election. However, during his
examination on 23.04.2013, PW2 would say that he does not remember whether he had
acted as poling agent or booth agent of R.M.P. He would then say that he does not
remember and that he is not aware whether Sadasivan was a candidate in Ward No.4 of
Chorode Panchayath. PW2 denied the signature shown to him in the list of polling
agents (marked as Ext.D63 later).
130. DW8 Dolly is the Assistant Director of Agriculture, Vatakara. As per the
summons issued from the court, DW8 produced before the court the account of paper
seals used in the election booth in Varisakkuni U.P. School in Ward No.4 of Chorode
Panchayath which was kept in her office. She produced two such documents which
have been marked as Exts. D63 and D64. These documents contain a list of polling
agents with their signature.
131. The plea of the defence is that PW2 was a polling agent of Sadasivan, a
candidate of R.M.P, in the Panchayath election in Ward No.4 of Chorode Panchayath
and that PW2 has signed Exts.D63 and D64 documents as polling agent in his name
Dineshan.
132. DW8 had no occasion to see PW2 putting his signature in Exts.D63 and
D64 documents. Her evidence does not help the defence to prove that PW2 has put his
signature in these documents as polling agent of any candidate.
133.

DW9 Vasu has deposed that he was the polling agent of C.P.I(M)

candidate T.M. Rajan in Ward No.4 of Chorode Panchayath.

He has stated that

K.K. Sadasivan was the candidate of R.M.P in that ward. DW9 has also deposed that

70

PW2 is his neighbour and that he is an active worker of R.M.P. DW9 identified his
signature in Exts.D63 and D64 documents which was put by him in his capacity as
polling agent. DW9 has stated that the polling agents signed the aforesaid documents
after the election on 23.10.2010. DW9 would also say that PW2 is the person who has
signed in Exts.D63 and D64 documents as the fifth person.
134. DW9 has stated in the cross-examination that Sadasivan had contested
the election as an independent candidate but he was a candidate of R.M.P. It is to be
noted that R.M.P had not obtained recognition as a political party then and therefore, the
candidates of that party could have contested the election only as independent
candidates. DW9 has asserted that PW2 had signed Exts.D63 and D64 documents
before the Presiding Officer by writing his name as Dinesh.
135. It is true that defence did not take any steps to cause production of the
appointment letter given by the candidate to the Presiding Officer which would show
appointment of PW2 as the polling agent of Sadasivan. However, there is no sufficient
reason to disbelieve the evidence of DW9 that PW2 was the polling agent of Sadasivan
who was the candidate of R.M.P in Ward No.4 of Chorode Panchayath.

PW2 has

admitted that his name shown in the voter's list is Dineshan. It is only probable that he
had signed Exts. D63 and D64 documents by writing his name as Dinesh.

In this

context it is to be remembered that PW2 had at first deposed that he did not know
Sadasivan. Subsequently, he would say that he does not remember whether Sadasivan
was a candidate in Ward No.4 in the election. It is to be remembered that PW2 is a
person residing in Ward No.4 of Chorode Panchayath. PW2 would at first say that he
had never acted as a booth agent in any election. Subsequently, he would say that he
does not remember whether he was a polling agent or booth agent of R.M.P. On a

71

reading of the deposition of PW2 as a whole, the impression one could form is that he is
a sympathizer or activist of R.M.P but he is reluctant to admit that fact.
136. PW2 would at first say that he does not know whether his brother Balan
is an activist of R.M.P. Subsequently, he would concede that Balan is an R.M.P worker.
He has deposed that Balan was attacked and injured by some persons but he does not
know who had attacked Balan. A specific question was put to PW2 whether in his
presence the wife of Balan had given statement to the police. PW2 would say that he
does not remember. He has stated that he had gone to the hospital to see Balan. He
has deposed that he was not present when the police recorded the first information
statement in that case and that he does not know who had given the first information
statement in that case.
137.

Ext.P569 is the certified copy of the F.I.R in crime no.66/2012 of

Edacherry Police Station registered under sections 143, 147, 148, 324, 452, 307 and
427 read with 149 I.P.C. This case relates to the attack made on Balan, the brother of
PW2. The first information statement attached to Ext.P569 F.I.R shows that the case
was registered on the basis of the statement given to the police at the hospital by the
wife of Balan in the presence of PW2. Yet, PW2 has expressed ignorance about it. The
incident mentioned in Ext.P569 F.I.R was on 21.02.2012.
138. Ext. P569 F.I.R would show that the first accused in that case
is K.C. Ramachandran who is accused no.8 in the present case.

Admittedly,

K.C. Ramamchandran (A8) is a local leader of C.P.I(M).


139. In the aforesaid circumstances, it cannot be found that PW2 is a totally
disinterested and independent witness.

On the other hand, the contention of the

defence that he is a partisan and interested witness who has got political enmity towards

72

the local leaders of C.P.I(M) deserves acceptance.


140. The fact that PW2 is an interested and partisan witness does not mean
that his evidence has to be rejected in toto. There is no doubt that when a criminal court
has to appreciate evidence given by witnesses who are partisan or interested, it has to
be very careful in weighing such evidence. Whether or not there are discrepancies in the
evidence, whether or not evidence strikes the court as genuine, whether or not the story
disclosed by the evidence is probable, are all matters which must be taken into account.
But, evidence should not be discarded only on the ground that it is evidence of partisan
or interested witnesses. Mechanical rejection of such evidence would invariably lead to
failure of justice (Masalti Vs. State of U.P : A.I.R 1965 SC 202). Evidence is to be judged
by the yardstick of probabilities and its intrinsic worth. If the materials show that there is
partisan approach, the court has to analyse the evidence with care and caution.
141. A careful scrutiny of the evidence of PW2 shows that there are vital
omissions in his testimony with regard to the incident of murder. He has deposed before
the court that three persons jumped out of the car for the second time and two of them
were holding swords and the other person was carrying a round object in his hand.
PW2 has also deposed that the two persons who were holding swords who had jumped
out of the car on the second occasion cut on the face and other parts of the body of the
vicrim. However, he had not stated to the police that any person who jumped out of the
car on the second occasion had attacked the victim. PW2 has deposed before the court
that something was written in Arabic letters on the front and the rear glasses of the car.
He had not stated to the police that the car in which the assailants came had any such
identification marks. A specific question was put to him in examination-in-chief as to
whether he had seen the persons who attacked the victim and the person who was

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driving the car and PW2 gave answer in the affirmative.

PW2 also identified the

accused Anoop (A1) in the court stating that he was the driver of the car. But PW2 had
not stated to the police that he had seen the driver of the car and that he could identify
him. PW2 would say that on 22.06.2012, at the camp office of S.I.T, he had pointed out
to the police the driver of the car. On the other hand, it has come out in the evidence of
the investigating officer that the police had pointed out a person to PW2 and told him
that his name was Anoop.
142. The omissions referred to above in the testimony of PW2 cannot be
ignored as irrelevant or immaterial. According to the prosecution case, three persons
who first jumped out of the car with swords and two of the three persons jumped out of
the car subsequently had attacked the victim with swords. Though PW2 would depose
before the court in tune with the prosecution case he had not stated to the police that
two out of the three persons who jumped out of the car on the second occasion had
attacked the victim in any manner. This omission in the statement given to the police by
PW2 is with regard to a very crucial aspect of the actual incident of murder. PW2
identified the car KL-58/D 8144 which was parked in the compound of the court as the
car in which the assailants came.

He had not stated to the police that there was

something written in Arabic letters on the front and the rear glasses of the car. PW2 has
stated that the driver of the car did not get out of the car at the time of the incident. He
had not stated to the police that he had seen the driver of the car. He had not stated to
the police that he could identify the driver of the car.

In such circumstances,

identification of the accused Anoop (A1) in the court by PW2 as the driver of the car
lacks credibility.
143. When omissions amount to material contradictions creating a serious

74

doubt about the truthfulness or creditworthiness of the witness, his evidence


becomes unacceptable. Then it will not be safe to rely upon such evidence. Serious
contradictions and omissions which materially affect the substratum of the prosecution
case have to be understood in clear contradistinction to mere marginal variations in the
statement of the witnesses.
144. While appreciating the evidence, the court has to take into consideration
whether the contradictions/omissions are of such magnitude that they may materially
affect the creditworthiness of the witness. In terms of the explanation to section 162
Cr.P.C. which deals with an omission to state a fact or circumstance in the statement
given to the police by a witness, such omission may amount to contradiction if the same
appears to be significant and otherwise relevant having regard to the context in which
such omission occurs and whether there is any omission which amounts to contradiction
in a particular context shall be a question of fact. If a significant omission is made in the
statement of a witness under section 161 Cr.P.C, the same may amount to contradiction.
Where the omission amounts to a contradiction, creating a serious doubt about the
truthfulness of a witness, it would not be safe to rely upon such evidence.

Mere

marginal variations in the statements cannot be dubbed as improvements as the same


may be elaborations of the statement made by the witness earlier. But, the omissions
which amount to contradictions in material particulars which go to the root of the case
render the testimony of the witness liable to be discredited (Sunil Kumar Sambhudayal
Gupta Vs. State of Maharashtra: 2010 AIR SCW 7049).
145. The omissions in the statement of PW2 which amount to material
contradictions discredit his testimony with regard to the particulars of the incident. At
any rate, in the light of the contradictions mentioned above, it is not safe to rely upon his

75

testimony regarding the incident, especially in view of the finding that he is a partisan
witness. On a reading of the testimony of PW2 as a whole, it does not inspire
confidence.
Presence of PW3 at the Scene of the Incident.
146. The evidence of Sooraj Kumar (PW10), the Secretary of Brothers Club,
would show that PW3 was also one of the persons engaged in the work of decorating
the club and its premises in connection with its anniversary. But, it does not mean that
PW3 was present at the scene of the incident when it occurred.
147. A specific suggestion was made to PW3 in the cross-examination by
counsel for A1 to A3 that on the night of 04.05.2012 he was attending a farewell party in
the house of one Valsan and that he had reached his house only at about 23.00 hours.
PW3 denied this suggestion. No evidence was adduced by the defence to prove that at
the time of the incident PW3 was attending any function in the house of Valsan.
148. PW1 has stated that the number of his mobile phone is 9496682127.
He is a person residing at Vallikkad. The service provider of his cell phone connection is
B.S.N.L. PW158 is the Nodal Officer of B.S.N.L. Ext.D29 is the call data record of the
cell phone number 9496682127. B.S.N.L has mobile phone tower at Vallikkad. The
evidence of PW158 and Ext.D29 show that the tower location of the cell phone of PW3
from 21.40.17 hours till the end of that day was Vallikkad. Therefore, on the basis of the
call data record of the cell phone of PW3, the defence cannot contend that he was not at
Vallikkad at the time of the incident.
PW3 A Partisan Witness?
149. PW3 has admitted that he is a worker of R.M.P. ''Revolutionary Youth'' is
the name of the youth wing of R.M.P. PW3 used to attend the meetings of

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''Revolutionary Youth''. He is a red volunteer of R.M.P. He was one of the Red


Volunteers who had held the dead body of T.P.Chandrasekharan when it was brought to
the Town Hall, Kozhikode. Before being a member of R.M.P, PW3 was a worker of
C.P.I(M).
150. PW3 has admitted that he had contested the Panchayath election from
Ward No.19 of Chorode Panchayath.
151. Ext.D3 is the certified copy of the final report (charge sheet) filed by the
police in crime no.167/12 of Vatakara police station. Ext.D4 is the copy of the first
information statement given to the police by one Rasheed, a worker of R.M.P, the
person who was injured in the incident and Ext.D1 is the copy of the memorandum of
evidence (list of witnesses) in that case. The allegation in that case is that the accused
therein who were workers of C.P.I (M) had attacked and made attempt to cause death of
Rasheed due to political animosity. Ext.D1 shows that PW3 has been cited as an eyewitness in that case.
152. Ext.D5 is the certified copy of the F.I.R in crime no.1275/08 of Vatakara
police station. Ext.D2 is the copy of the memorandum of evidence (list of witnesses) in
that case. The allegation in that case is that the accused therein who were workers of
C.P.I (M) had attacked and caused grievous injury to one Sineesh, a worker of R.M.P.
Ext.D2 shows that PW3 has been cited as a scene mahazar witness in that case.
153. In the aforesaid circumstances, it cannot be found that PW3 is a totally
disinterested and independent witness.

On the other hand, the contention of the

defence that he is a partisan and interested witness who has got political animosity
towards C.P.I(M) deserves acceptance.
154. As observed earlier, the fact that a witness is partisan and interested

77

does not mean that his evidence has to be rejected . The court has to weigh such
evidence carefully. The court has to assess the intrinsic worth of the evidence after
scrutiny of it with care and caution.
Conduct of PW3 and Delay in Recording His Statement
155. PW3 had given statement to the police regarding the incident only on
09.05.2012. His evidence shows that he had gone to the Medical College Hospital,
Kozhikode on the morning of 05.05.2012 and that he had accompanied the dead body
of T.P.Chandrasekharan as a Red Volunteer. His evidence is that on 06.05.2012 he went
to the house of his sister near Vatakara and stayed there. He is a person working as
gold appraiser in a bank. He went to the bank on 07.05.2012 and 08.05.2012 from the
house of his sister. His evidence is that on 09.05.2012 he went to the office of the
Dy.S.P, Vatakara and gave statement regarding the incident. PW3 has deposed that it
was on account of fear that he went to the house of his sister and stayed there.
156. PW3 would say that there was no hurdle to go to the office of the
Dy.S.P, Vatakara on 07.05.2012 and to give statement but he was scared. He has
stated that he did not tell the incident to anybody or made phone call to the police
because he was frightened. He had met many R.M.P workers when he went to
Kozhikode on 05.05.2012 but he did not tell anybody that he had seen the incident. He
had gone to Kozhikode in a jeep. Red Volunteers of R.M.P were the passengers of the
jeep. They were in uniform. It was a local leader of R.M.P by name C.M.Reji who had
asked him to come to Kozhikode in the uniform of Red Volunteer. He did not tell
C.M.Reji that he saw the incident. PW3 did not tell any of them regarding the incident.
Before giving statement to the police, he did not tell any leader or worker of R.M.P
regarding the incident. On 09.05.2012, PW3 did not go to any police station but

78

voluntarily went to the office of the Dy.S.P, Vatakara.


157. In Acharaparambath Pradeepan Vs State of Kerala : 2007 (1) KLT 249
(SC), the Honble Supreme Court has observed as follows:
We although appreciate that in a case of this nature the witnesses must gather
courage over a period of time to come out with their part of story but we are not very
sure that the same standard should be applied to PWs 7 and 8. They were members of
a political party. PW7 was a sympathizer of the Bharatiya Janata Party. He came to learn
about the incident on the same day at about noon. He even went to the house of the
deceased. Police officers were present there. He must have talked to others that the
accused persons committed the murder but still he had not opened his mouth.
158. In the present case, regarding the non-disclosure of the incident for four
days after the murder, the standard applied to the conduct of PW1 cannot be applied to
PW3. The conduct of PW3 stands on a different footing. He is a staunch supporter of
R.M.P. The person murdered was his leader. PW3 was a member of Revolutionary
Youth, the youth wing of R.M.P. He was a Red Volunteer of that party. He had
accompanied the dead body of T.P.Chandrasekharan in the uniform of Red Volunteer.
His testimony that he was scared and therefore he did not tell the police and any other
person about the incident for four days on account of fear cannot be accepted as
plausible and convincing explanation for the delay. It cannot be believed that though he
was a member of Revolutionary Youth, the youth wing of R.M.P. and a Red Volunteer
of that party, he did not get courage to divulge the incident to anybody, even to the
leaders of R.M.P with whom he had occasion to come into contact on 05.05.2012. The
principle that there cannot be uniformity in human reaction has to be certainly kept in
mind. But, when the conduct of the witness is so unnatural and is not in accord with

79

acceptable human behaviour allowing variations, then his testimony becomes


questionable (Lahu Kamalakar Patil Vs State of Maharashtra : ( 2013 ) 6 SCC 417).
Reliability of the Testimony of PW3
159. Scrutiny of the evidence of PW3 with care and caution, especially in
view of the fact that he is a partisan witness and that there was undue delay in
disclosing the incident to the police or any other person, reveals vital and crucial
omissions and inconsistencies in his testimony with regard to the incident of murder. As
in the case of PW2, he had not stated to the police that any person who jumped out of
the car on the second occasion had attacked the victim. He has reiterated in the crossexamination that he saw five persons chopping the victim. PW3 has deposed before the
court that something was written in Arabic letters on the front and the rear glasses of the
car. He had not stated to the police these facts. He has deposed that the driver of the
car did not get out of it. He had no opportunity to see the driver of the car. PW3 identified
the accused Anoop (A1) in the court only as one of the persons involved in the incident.
He did not identify him in the court as the driver of the car. The evidence of PW3 shows
that even during the investigation of the case he had no occasion to identify the first
accused as the driver of the car. In examination-in-chief PW3 has only stated that on
22.06.2012, at the office of the S.I.T, he understood the name of Anoop (A1) and two
other accused. He has not given evidence that he identified Anoop (A1) at the office of
the S.I.T as the driver of the car or even as a person involved in the incident. PW3 had
not stated to the police that he had seen the driver of the car and that he could identify
him.
160.

The inconsistencies and the omissions referred to above in the

testimony of PW3 cannot be ignored as irrelevant or immaterial. They amount to

80

material contradictions creating a serious doubt about the truthfulness and


creditworthiness of the witness and his evidence becomes unacceptable. It is not safe
to rely upon his evidence regarding the incident. The contradictions/omissions in the
testimony of PW3 materially affect his creditworthiness. His evidence does not inspire
confidence.
161. The fact that evidence of PW2 and PW3 is found to be not reliable does
not mean that the evidence of PW1 who has spoken to with regard to their presence at
the scene of the incident is also liable to be rejected . This court has not altogether ruled
out the presence of PW2 and PW3 at the scene of the incident.

This court has only

found that the evidence of PW2 and PW3 does not inspire confidence and that it is not
safe to place implicit reliance upon their testimony regarding the incident.
Identification of Assailants by PW1
162. PW1 had deposed that he could identify the persons who jumped out of
the car with swords and attacked the victim and the person who was holding the round
object and also the driver of the car.

As per the direction of the court, the accused

stood in a line in ' U ' shape in the court. PW1 identified the accused Anoop (A1) and
Sijith (A6) from the witness box. He was allowed to go near the accused to identify the
others. Then he identified the accused Manoj Kumar (A2), Sunil Kumar (A3), Rajeesh
(A4), Muhammed Shafi(A5) and Shinoj (A7). PW1 specifically identified the accused
Anoop (A1) as the person who was driving the Innova car. He specifically identified the
accused Manoj Kumar (A2) as the person who was holding the round object in his hand.
He has deposed that the other five accused identified by him were the persons who
hacked the victim with swords.
163. It is true that the witness was able to identify only two accused by

81

standing in the witness box. He had to go near the accused to identify the other persons.
In this context it is to be noted that there were about 57 accused in the court and they
were sitting in the court at a distance of about 35-40 metres from the witness box in
several rows. The witness could not have identified the accused-assailants in a crowd
from such a distance. It was in such circumstances that the court directed all the
accused to stand in a line in the court and allowed the witness to go near them for
identifying the culprits.
164. In Simon Vs State of Karnataka : A.I.R 2004 SC 2775 , it has been held
as follows:
"Another contention urged is that though PWs 63 to 66 and other similar
witnesses have deposed to have seen the appellants at the place of occurrence about
8 years back, but none of them including PW97 could identify them, except by going
near them in the court hall. It was pointed out that the evidence of these witnesses
shows that each of the witness had to go close to the accused and then alone it was
possible to identify them. We find no substance in the contention. The reason for going
near the accused was that out of a large number of 50 accused present in the court,
only the four appellants were identified and it was proper to identify them by going near
them. It is quite difficult to identify an accused from a distance in a court hall by pointing
out a finger towards the accused by the witness when the accused are large in number.
It is in this context that the trial court has recorded that after going near the accused, the
witness has identified them. It does not mean that testimony of witnesses in court
becomes doubtful on their having identified the accused after going near them''.
165. In view of the aforesaid decision of the Apex Court it cannot be found
that it was improper for the witness to go near the accused and identify them. It does not

82

create any doubt on the testimony of PW1 regarding the identification of the accused in
the court.
166. It is trite that substantive evidence is the evidence of identification in
court. The facts, which establish the identity of the accused persons, are relevant under
Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness
is the statement made in court. The evidence in order to carry conviction should
ordinarily clarify as to how and under what circumstances he came to pick out the
particular accused person and the details of the part which the accused played in the
crime in question with reasonable particularity.
167. When a witness identifies an accused in court, his evidence in that
regard

has to be appreciated

in the light of its intrinsic worth, other evidence,

circumstances and probabilities. If the witness knew him previously it is a matter of


recognition; if not, it is a matter of identification. Recognition of a familiar person is
certainly more reliable than identification of a stranger. When a witness identifies an
accused in court who was a stranger to him prior to the incident, the court, by way of
caution and prudence would seek some assurance before accepting the identification as
correct. A witness might have had a fair opportunity to see the accused, of noting his
appearance and features. There might have been something in the context, manner and
circumstance of the incident which would render it easy for the appearance of the
accused to fix itself in the memory of the witness. Something might have taken place
shortly after the incident which would enable the witness to easily remember the
physical appearance of the culprit. Such circumstances would lend assurance to the
mind of the court in placing reliance upon the evidence of identification made in the
court.

83

168. The witness may have a good opportunity to see the assailants and the
incident may leave an indelible impression on his mind. The power to identify
undoubtedly varies according to the power of observation and memory of the witness.
Sometimes a witness may not be able to describe or explain what created an impression
in his mind of the assailants whom he saw during the incident. He may not be always
able to formulate and give reasons for the identification. But, the court must be satisfied
that the witness had sufficient opportunity to see the accused at the time of occurrence.
169. PW1 has stated that accused 1 to 7 were persons not known to him
prior to the incident. PW1 has identified the accused Anoop (A1) in the court as the
driver of the Innova car in which the assailants came. He has deposed that the driver of
the car did not get out of it during the incident. Even in examination-in-chief he has
stated that when the car came from behind and took a turn and proceeded to Orkatteri
side, he noticed the driver. He has stated that the door glasses of the car had been
lowered at that time. He would say that the driver of the car had combed his uncurled
hair in a unique style. PW1 has also deposed that there was street light there and also
there was bright moon light enabling him to identify the person who was driving the car.
170.

PW1 has identified the accused Manoj Kumar (A2) in the court as the

person who got out of the car at the scene of the incident holding a round object in his
hand. He identified A3 to A7 as the persons who hacked the victim with swords. Out of
them, PW1 had noticed the accused Rajeesh (A4) even at the time the car took a turn
on the road as the fat and bald-headed person who was sitting inside the car on the left
side of the driver.
171. The fact that PW1 had not stated to the police the physical features of

84

A2, A3 and A5 to A7 is not a sufficient ground to discard his evidence of identification. A


witness may not always be able to describe the physical features of the assailants
though he had noticed them.
172. In Sajeevan Vs State of Kerala : 1994 Cri.L.J 1316, the Hon'ble High
Court has held as follows:
''It is true that P.W. 1 or 2 could not point out any special identification mark
of the accused. Nobody has a case that any of the accused has any special feature to
be observed. Persons possessing special identification features are far and few
between - one is able to remember another man's face not always because of any
special mark or features. The image of an assailant or a thief or a burgler can leave the
impression in the mind of the viewer or the victim which can remain in the mind without
fading out for a reasonable period. There are untranslatable factors by which such
retention is possible. The viewer need not count or notice any special mark or feature for
retaining the image of the assailant in his mind. Hence we are not disposed to reject the
testimony of P.W.1 and P.W. 2 merely because they did not enumerate the features or
marks of the accused.''
173. PW1 has deposed that the whole incident was over within one or two
minutes. Learned counsel for the accused would contend that the witness had no
sufficient time to get an impression of the physical features of the assailants within such
short duration. There is no force in this contention. In the first place, the duration of the
incident spoken to by PW1 need not be accurate or exact. Sense of time of rustic or
even urban persons can only be a rough estimate. In the second place, the victim had
sustained large number of incised injuries. It would have taken some time for the
assailants to inflict those injuries.

85

174.

In Subhash Krishnan Vs State : A.I.R 2012 SC 3003, the Hon'ble

Supreme Court has observed as follows:


''As regards the time factor, it cannot be held that since the incident
happened within 4-5 minutes, it was not possible for the witnesses to have noted the
participation of the accused in the crime. It is relevant to note that according to PW-9, as
many as 36 injuries were found in the body of the deceased which were caused by the
blunt side of the talwar, knife as well as danda. In inflicting so many injuries, the time
taken would have been sufficient enough for the witnesses to have made an observation
as to the role played by the accused in the crime. Therefore, on that score as well there
is no scope for doubting the version of witnesses as regards the participation of the
appellant in the crime.''
175. In the present case, Ext.P179 postmortem certificate shows that the
deceased had sustained 27 injuries and out of them 10 are incised wounds, many of
them multiple incised wounds. Some of these injuries are a combination of incised
wounds, most of them on the head. The time taken in inflicting so many injuries would
have been sufficient enough for the witness to observe the assailants.
Presence of Light at the Scene of the Incident
176. Learned counsel for the accused would contend that the prosecution
has not proved that there was sufficient light at the scene of the incident enabling any
person to identify the assailants. PW1 has deposed that there was light from the League
House building and the C.W.S.A building in the vicinity. He has also deposed that the
engine and the lights of the Innova car had not been put off and there was also bright
moon light at the time of the incident. There is no sufficient ground to disbelieve his

86

evidence in this regard.


177.

A suggestion was made to PW1 in the cross examination that there

was no electric connection at all in the C.W.S.A building at that period. DW6 was
examined by the defence to prove this plea. He was the treasurer of Concrete Workers
Supervisors Association (C.W.S.A) . He has given evidence that the Association had
taken the building on rent as per Ext.D58 agreement and that there is no electric supply
in the room taken on rent. He would say that the room taken on rent by the Association
is in the upstair portion of the building and there is no electric supply in any room on the
upstairs. However, DW6 has stated in the cross examination that aluminium fabrication
work is being conducted in one of the three rooms in the lower floor of the building and
that there is electric connection in the downstair portion of the building. Therefore, the
evidence of DW6 itself would prove the prosecution case that there was electric light
available at the scene of the incident from the aforesaid building.
178. The assailants who came in the car would have been in a hurry to leave
the place after executing their task. Therefore, it is probable that they would not have put
off the engine and the lights of the car. It is also pertinent here to note that the driver of
the car had not got out of the car. Therefore, the evidence of PW1 that there was light at
the scene of the incident from the headlights of the car merits acceptance.
179. PW1 has deposed that there was bright moon light at the time of the
incident. On verification of the calendar it is seen that Pournami was on 06.05.2012.
The incident took place at about 22.12 hours on 04.05.2012. Therefore, there cannot be
any doubt that there would have been bright moon light at the time of the incident.
180. In Jit Singh Vs State of Punjab : A.I.R 1976 S.C 1421, it has been held
as follows:

87

"In this connection, the first thing to be noticed is that at the relevant time
there was sufficient moon light. The calendar tells us that on the 10th Feb. 1968, moon
arose at 2.5 p.m. and set at 4.11. A. M. on the 11th February. The night of full moon was
only two nights ahead.It was not rainy reason. It is nobody's case that it was a cloudy
night. Thus, even if it is assumed that the occurrence took place around 8 P. M., there
would be bright moon shedding its light on the scene of occurrence which was an open
place. In that bright moonlight it could not be difficult for a person to recognise another
known to him from a distance 45 or 50 ft. One infirmity in the reasoning of the trial court
was that it assumed. without any basis whatever, that it must have been pitch dark at the
time and place of occurrence. It completely overlooked the fact that the scene of
occurrence must have been sufficiently lit by moon-light ''.
181. Recognition of unknown persons can be made in strong moon light from
a distance of 10 to 12 yards (Digamber Singh Vs State : 1990 Cri.L.J 489).
182. In Mohammed Vs State of Kerala :1962 K.L.T 120, it has been held that
even making allowance for the increase in the distance in tropical countries, the distance
of moonlight recognition cannot go from twelve yards or seventeen yards to 45 yards
and 52 yards as in that case but any general standard applicable in all cases cannot be
fixed. In Chellappan Nair Vs State of Kerala: 2006(1) K.L.T 499, the incident took place
more than 50 yards away and so it was held that the possibility of the eye-witness
seeing the accused was remote and that the witnesses could not have identified the
weapon used. In Kunjayyappakutty Vs State of Kerala: 1993(2) K.L.T 64, it has been
held that it would not have been possible for the witnesses to identify the assailants from
a distance of 20 to 25 meters. In State of U.P. Vs. Ashok Kumar ; A.I.R 1979 SC 874,

88

the opinion of Dr.Gross that "By moonlight one can recognise, when the moon is at the
quarter, persons at a distance of from 21 feet, in bright moon-light at from 23 to 33 feet;
and at the very brightest period of the full moon, at a distance of from 33 to 36 feet. In
tropical countries the distances for moonlight may be increased." was quoted and it was
held by the Apex Court that it was not possible for the witnesses to have identified the
accused even in moonlight from a distance of about 150 yards.
183.

On going through the evidence given by PW1, it can be seen

that he was standing at a distance of only ten metres, that is, about 33
feet

from

the

scene

of

the

incident

when

he

witnessed

it.

Moreover, there was light from the nearby buildings and also the light from the
headlights of the car. Therefore, PW1 could have clearly seen the assailants from where
he was standing. The contention raised by the defence that it was not possible for PW1
to have a proper identification of the assailants does not gain ground.
184.

In Kedar Singh

Vs. State of Bihar: A.I.R 1999 SC 1481, it was

observed as follows:
''It has also to be observed that even on a full dark night there is never total
darkness. There can be other means to identify another through the shape of his body,
clothes, gait, manner of walking etc. etc. Identification possible by voice too. That apart,
we have the positive evidence that the temple light was on with the aid of which PW-2
claims to have identified the assailants. It is noteworthy that the occurrence took place at
about 8.00 p.m. a time in the month of September when normally a place of worship
becomes a visiting point. Thus neither can the presence of PW 2 at the spot be doubted
nor can his ability to identify the assailants be questioned when he was stated to be 50
yards away from the temple and by the means of the light he could have certainly

89

identified the assailant, his perception having sharpened. We thus are of the view that
he was rightly believed by the Courts below.
185. In Apren Joseph Vs State of Kerala : A.I.R 1973 SC 1, it has been
observed as follows:
''It is not disputed and indeed both the courts below have found that on
December 12, 1970, there was full moon and as such there was moonlight at the time of
the occurrence. The nearest street light is also stated to be about 130 ft. towards the
west and the nearest electric post on the eastern side was about 90 ft. away from the
place of occurrence. The light of the lorry also helped the eye witnesses to clearly see
who the assailants were.''
186. In Ram Gulam Chaudhury Vs State of Bihar : A.I.R 2001 SC 2842, it
has been held as follows:
''It must be remembered that the incident had taken place in a village. As has
been held by this Court in the case of Kalika Tiwari v. State of Bihar, the visible capacity
of urban people who are acclimatized to fluorescent lights or incandescent lamps is not
the standard to be applied to villagers whose optical potency is attuned to country-made
lamps. It has been held that the visibility of villagers is conditioned to such lights and
hence it would be quite possible for them to identify men and matters in such light ''.
187. In Karnail Singh Vs State of Punjab : A.I.R 1971 SC 2119, it has been
observed as follows:
''Apart from electric lights, there was bright moon-light. On the night between
28th and 29th July 1969, there was the full moon. On the night of occurrence the moon
was up at about 9-35 P.M. and about the time of occurrence there was bright moon-light.
Moreover, the accused persons were all known to the eye-witnesses which makes

90

problem of identification much easier. The peepal tree or its shadow also did not then
cause obstruction to the vision. The contention of the appellants that in moonlight
visibility does not go beyond about 36 feet on a full moon-light is met by the fact that
there were quite a few electric lights in the vicinity of the spot. We do not think there is
any substance in the argument that light was not sufficient.''
188. In the present case, PW1 was standing at a distance of only 10 metres
from the place where the assailants were and he had sufficient opportunity to identify
them. There was light from the C.W.S.A building at the scene of the incident. There was
also light from the headlights of the car. Further, there was bright moon light as it was a
night two days prior to the full moon day. There is no force in the contention of the
defence that there was no sufficient light at the scene of the incident enabling any
person to identify the assailants.
Absence of Test Identification Parade for A2,A3,A5 and A6.
189. Learned counsel for the accused would strongly assail the evidence of
PW1 identifying A2, A3, A5 and A6 in the court on the ground that in the absence of a
test identification parade conducted for these accused, his evidence of identification of
them

at the trial for the first time is of no value. Test

identification parade was

conducted for PW1 only in respect of A1, A4 and A7. It is contended that identification of
the accused for the first time in the court is,from its very nature, inherently of a weak
character.
190. It is

considered a safe rule of prudence to generally look for

corroboration of the sworn testimony of witnesses in court as to the identity of the


accused who are strangers to them, in the form of earlier identification proceedings. This

91

rule of prudence, however, is subject to exceptions. Absence of test identification parade


is not fatal to the prosecution case when the court is impressed by a particular witness
on whose testimony it can safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation. There is no provision in the
Code of Criminal Procedure which obliges the investigating agency to hold or confers a
right upon the accused to claim a test identification parade. They do not constitute
substantive evidence and they are essentially governed by section 162 of the Code.
Failure to hold a test identification parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such identification is a matter to be
decided by the court on the facts and circumstances of the case.In appropriate cases it
may accept the evidence of identification even without insisting on corroboration.
191. In Kanta Prasad Vs Delhi Administration :A.I.R 1958 SC 350, a point
was made regarding non-holding of test identification parade by the police and the Apex
Court observed:
"It would no doubt have been prudent to hold a test identification parade with
respect to witnesses who did not know the accused before the occurrence, but failure to
hold such a parade would not make inadmissible the evidence of identification in court.
The weight to be attached to such identification would be a matter for the courts of
fact .....''
192. In Harbhajan Singh Vs State of Jammu and Kashmir : (1975) 4 SCC
480, though a test identification parade was not held, tthe Apex Court upheld the
conviction on the basis of the identification in court corroborated by other circumstantial
evidence.
193.

In Jadunath Singh Vs.

State of U.P : A.I.R 1971 SC 363, it was

92

observed as follows:

''The fact that Munshi Ram did not disclose the names of the two accused to
the villagers only shows that the accused were not previously known to him and the
story that the accused referred to each other by their respective names during the
course of the incident contains an element of exaggeration. The case does not rest on
the evidence of Munshi Ram alone and the corroborative circumstances to which we
have referred to above lend enough assurance to the implication of the appellant."
194. In Vaikuntam Chandrappa Vs State of A.P : A.I.R 1960 SC 1340, it has
been held as follows:
''It is also true that the substantive evidence is the statement in court; but the
purpose of test identification is to test that evidence and the safe rule is that the sworn
testimony of witnesses in court as to the identity of the accused who are strangers to the
witnesses, generally speaking, requires corroboration which should be in the form of an
earlier identification proceeding. There may be exception to this rule where the court is
satisfied that the evidence of a particular witness is such that it can safely rely on it
without the precaution of an earlier identification proceeding.''
195. In Malkhansingh Vs State of M.P : A.I.R 2003 SC 2669, it has been
held as follows:
''The identification parades belong to the stage of investigation, and there
is no provision in the Code of Criminal Procedure, which obliges the investigating
agency to hold, or confers a right upon the accused to claim, a test identification parade.
They do not constitute substantive evidence and these parades are essentially governed
by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification

93

parade would not make inadmissible the evidence of identification in Court. The weight
to be attached to such identification should be a matter for the Courts of fact. In
appropriate cases it may accept the evidence of identification even without insisting on
corroboration.''
196. In the present case, PW1 has deposed that A1 to A7 were strangers to
him prior to the incident. It would no doubt have been prudent to hold a test identification
parade with respect to A2, A3, A5 and A6 also for PW1 who did not know them before
the occurrence, but failure to hold such a parade does not make inadmissible his
evidence of identification in the court.This is not a case where PW1 had only a fleeting
glimpse of the assailants on a dark night. He had abundant opportunity to notice their
features. In fact ,on account of seeing a shocking murder, the faces of the assailants
must have got imprinted in his memory and there was no chance of him making a
mistake about their identity. There is no reason why he should falsely identify A1 to A7
as the perpetrators of the crime if they had not actually committed the offence.In these
circumstances, identification of A1 to A7 by PW1 in the court does not require further
corroboration.
197. Even otherwise, regarding the participation of A1 to A7 in committing the
crime, there is corroboration available by other facts and circumstances which shall be
discussed later. Identification parade is not the only type of corroborative evidence which
can be tendered to confirm the evidence of a witness regarding the identification in the
court. Identity can be fixed by circumstantial evidence. Assurance of identity of offenders
can be available from other facts established in a case.
198. It is also relevant here to note that PW1 had occasion to identify A2,
A3, A5 and A6 before the police. PW1 has deposed that on 23.05.2012, at the office of

94

the S.I.T. he pointed out one of the persons involved in the incident and then the police
told him that the name of the aforesaid person was Sijith@ Annan Sijith (A6). PW1 has
also stated that on 19.06.2012, at the office of the S.I.T. he pointed out three persons
and then the police told him that the names of the aforesaid persons were Muhammed
Shafi (A5) , Manoj (A2) and Suni (A3).
199. In Dastagir Sab Vs State of Karnataka: A.I.R 2004 SC 2884, it has been
held as follows:
''It is also not in dispute that the accused were arrested on 6-11-1993 and
according to the Investigating Officer they were shown to her to ensure that they have
arrested the correct persons and in that view of the matter it was impracticable to hold a
Test Identification Parade. In view of the peculiar facts and circumstances of this case
we are of the opinion that non-holding of a Test Identification Parade cannot be said to
have vitiated the trial.''
200. When a witness identified the accused before a police officer, in so far as
the police officer seeks to prove the fact of such identification, such evidence of his
would attract the operation of section 162 Crl.P.C and would be inadmissible in
evidence. But, the evidence sought to be given by the identifier himself in regard to his
mental act of identification which he would be entitled to give by way of corroboration of
his identification of the accused at the trial is admissible (See Ramkishan Mithanlal
Sharma Vs State of Bombay : A.I.R. 1955 SC 104).
201. In Sajeevan Vs State of Kerala : 1994 Cri.L.J 1316, it has been held as
follows:
''If the police officer has revealed to a witness names of the assailants whom
the witness pointed out or described to the police no impropriety can be imputed to the

95

police on account of it. That cannot affect the evidence of identification because the
witness is identifying the accused in court by looking at him although the witness came
to know of his name in the meanwhile. We are, therefore, not impressed by the said
argument.''
202. In view of the decisions referred to above, it cannot be found that an
illegality was committed by the police in getting some of the accused identified by PW1
at the office of the S.I.T during the investigation of the case.
Identification Parade of A1, A4 and A7
203. PW1 has deposed that in the identification parade conducted on
11.06.2012, he had identified the accused T.K.Rajeesh (A4). He had identified the
accused Anoop (A1) in the parade conducted on 14.06.2012 and the accused Shinoj
(A7) in the parade held on 12.07.2012.
204.

PW1 has stated on cross examination that before the identification

parade he had not seen the photographs of the accused in the newspapers. He could
not tell how many Muslims were among the non-suspects in the identification parade of
Anoop (A1). He would add that all of them were of the same type. PW1 denied the
suggestion made to him that before the parade, the police had shown him the accused
and their photographs at the office of the S.I.T. He has stated that during the parade,
the accused Rajeesh (A4) was wearing a mundu having the colour of ochre and a shirt.
He has deposed that all persons who had participated in the parade were wearing the
same type of shirt.He would say that they were of the same age. He denied the
suggestion that he identified the accused in the parade because the police had shown
them and their photographs before the parade and they were wearing different dress. He
has stated that he identified the accused in the parade because he had seen them at the

96

time of the incident. PW1 has stated that police had told him nothing regarding
identification of the accused during the parade.He has stated that during the parade of
Shinoj (A7), the persons standing in the line were wearing same type of clothes.
205.

The

identification

parades

in

the

case

were

conducted

by

Sri.P.T.Prakashan, Judicial First Class Magistrate-I, Kozhikode (PW159) in the District


Jail, Kozhikode. He has deposed that in the identification parade held on 11.06.2012, the
witness Praseed identified the accused T.K.Rajeesh (A4) and on 11.06.2012, the same
witness identified the accused Anoop (A1) and on 12.07.2012, the same witness
identified the accused Shinoj (A7).
206. Ext.P335 is the proceedings and Ext.P336 is the memorandum and
Ext.P338 is the list of persons participated in the identification parade conducted on
11.06.2012. Ext.P339 is the proceedings and Ext.P340 is the memorandum and
Ext.P341 is the list of persons participated in the identification parade conducted on
14.06.2012. Ext.P342 is the proceedings and Ext.P343 is the memorandum and
Ext.P344 is the list of persons participated in the identification parade conducted on
12.07.2012.
207. PW159 has deposed that before conducting the parade, he had taken
precautions to prevent the witnesses seeing the suspects. He has stated that he had
asked the suspects whether they had any complaint regarding the parade. After the
parade, he had not asked the suspects whether they had any complaint. He had told the
suspects who were the witnesses participating in the parade. A specific suggestion was
made to PW159 that the accused Rajeesh (A4) had told him that he was shown to the
witnesses in police custody and that his colour photo was published in the newspapers
but he (PW159) told him (A4) to raise that grievance in the trial court. PW159 denied this

97

suggestion. He also denied the suggestion that the accused Rajeesh (A4) was the only
person who was bald-headed who participated in the parade.
208. A specific suggestion was made to PW159 in the cross examination that
the accused Anoop(A1) and Shinoj (A7) had made a complaint to him that at the police
station they were shown to the witnesses and their photographs were also shown to the
witnesses but he (PW159) did not record it. PW159 denied this suggestion. He has
stated that the witness was kept in the room of the Welfare Officer in the jail before the
parade and he was brought to the place where the parade was conducted only after
selecting the non-suspects and putting the accused among them. PW159 has also given
evidence that the witnesses had touched the body of the accused and identified them
but he has recorded that they pointed out the accused.
209. The learned counsel appearing for A1, A4 and A7 have strenuously
argued that there were serious infirmities in holding the test identification parade and
no reliance can placed on the identification of the accused made by the witness in the
parade. It is also argued that it is the duty of the prosecution to establish that the test
identification parade was conducted properly and that the accused has no obligation to
prove the contrary.
210. It is well settled position of law that the evidence given by the witnesses
before the court is substantive evidence. It is to lend assurance to the testimony of the
witnesses in the court that evidence in the form of an earlier identification is tendered. If
the accused persons are got identified by the witnesses soon after their arrest and such
identification does not suffer from any infirmity, that circumstance lends corroboration to
the evidence given by the witness before the court. The test identification parade is part
of the investigation. The purpose of the identification parade is to satisfy the

98

investigating officer that certain person, not previously known to the witnesses, was
involved in the commission of the crime. It is also designed to furnish evidence to
corroborate the testimony which the witness concerned tenders before the court. It is not
substantive evidence. It can be used only to corroborate the substantive evidence given
by the witness in the court regarding identification of the accused.
211. The identification parades belong to the investigation stage. They are
generally held during the course of investigation with the primary object of enabling the
witnesses to identify persons concerned in the offence, who were not previously known
to them. This serves to satisfy the investigating officers of the bona fides of the
prosecution witnesses and also to furnish evidence to corroborate their testimony in
court. Identification proceedings in their legal effect amount simply to this: that certain
persons are brought to jail or some other place and make statements either express or
implied that certain individuals whom they point out are persons whom they recognise
as having been concerned in the crime. They do not constitute substantive evidence.
These parades are essentially governed by section 162 Crl.P.C. Keeping in view the
purpose of identification parades the Magistrates holding them are expected to take all
possible precautions to eliminate any suspicion of unfairness and to reduce the chance
of testimonial error. They must, therefore, take intelligent interest in the proceedings,
bearing in mind two considerations : (i) that the life and liberty of an accused may
depend on their vigilance and caution and (ii) that justice should be done in the
identification. Those proceedings should not make it impossible for the identifiers who,
after all, have, as a rule, only fleeting glimpses of the person they are supposed to
identify. Generally speaking, the Magistrate must make a note of every objection raised
by an accused at the time of identification and the steps taken by him to ensure fairness

99

to the accused, so that the court which is to judge the value of the identification evidence
may take them into consideration in the appreciation of that evidence. The identification
to be of value should also be held without much delay. The number of persons mixed up
with the accused should be reasonably large and their bearing and general appearance
not glaringly dissimilar. (Budhsen Vs. State of U.P: A.I.R 1970 SC1321).
212.

Every care has to be taken by the Magistrate in arranging test

identification parade. He must ensure that the witnesses do not get an opportunity to
see the accused. He must ensure the total absence of any situation where witnesses
could be prompted by anyone by word, gesture or otherwise to identify the accused.
Suspects must be mixed up among adequate number of non-suspects who must be
more or less similar in appearance to that of the suspect and must be dressed more or
less similarly. In other words the exercise must be free from unfairness. Nothing should
be done which would facilitate a false witness from making a correct identification.
Identification parade must be arranged at the earliest possible opportunity so as to
inspire confidence in the court. The value of test identification evidence is determined by
the effectiveness of precautions taken, the expedition in conducting it and the attendant
circumstances.
213. The following are some of the safeguards to be taken while conducting
test identification parade: (i) The parade shall be held without undue delay when the
impressions are fresh in the mind of the witness and other influences are less likely to
have operated on him. (ii) The witness shall not be given any opportunity to see the
accused or to acquaint himself with his features with the aid of photographs or pictures.
(iii) The investigating officer shall take precaution to see that the accused is not paraded
or exhibited before the public so that any photographer can take photo of the accused

100

and publish the same in newspaper. (iv) The accused shall be mixed with persons of the
same culture, age, height etc so that he is not easily picked out by reason of any of the
aforementioned characteristics. (v) The accused shall be allowed to select his own
positions in the line. (vi) The distinguishing marks of the accused, if any, shall be
concealed. (vii) The identifying witnesses shall not be permitted to communicate with
others who are yet to identify while they are leaving after the parade. (viii) The parade
shall be held free from the influence of the police or the prosecuting agency (See
Pradeepan Vs State of Kerala : 2005 (3) K.L.T 1075).
214. The accused Anoop (A1) was arrested at 18.00 hours on 11.06.2012.
He was produced before the Judicial First Class Magistrate, Vatakara on 12.06.2012.
The evidence of Dy.S.P Jossy Cherian (PW165) shows that he was produced before the
Magistrate with his face covered and remand report was made with a specific request
that visitors shall not be allowed in the jail. On 12.06.2012 itself an application was made
before the Chief Judicial Magistrate, Kozhikode to take action to conduct test
identification parade of the first accused by the witness Praseed (PW1). The Chief
Judicial Magistrate, as per order dated 13.06.2012, authorised PW159 to conduct the
parade. Identification parade of the accused Anoop (A1) was conducted by PW159 on
14.06.2012.
215. Ext.P339 report and Ext.P340 memorandum of the identification parade
prepared by PW159 show that summons had been issued to PW1 to appear before the
court at 2 p.m on 14.06.2012. PW159 reached the District Jail at 02.15 p.m and the
witness was brought to the jail at 2.30 p.m by the Chief Ministerial Officer of the court
and the witness was kept in the room of the Welfare Officer in the ground floor of the jail
under the surveillance of the C.M.O. of the court. It is specifically stated in Ext.P340

101

report that the window and the door of the Welfare Officer of the jail were closed to
prevent a view from outside and inside and that the accused Anoop (A1) was in the cell
and that it was not possible to get a view of the cell from the office of the Welfare
Officer.Ext.P340 report shows that PW159 selected nine non-suspects who resembled
the accused Anoop (A1) in stature and status and having approximately the same age
from among the undertrial prisoners.They were then brought to the corridor of the first
floor of the jail and asked to stand in a row. Then the accused Anoop was brought there.
Ext.P340 report shows that the accused and the non-suspects were clad in ordinary
shirts and suffron dothies and none of them was wearing any conspicuous
garments.The accused Anoop and the non-suspects then stood in a row in the corridor
of the first floor of the jail. The evidence of PW159 and Ext.P340 report show that the
accused was asked whether he had any objection to the parade and he answered that
he had no objection. The witness was then brought to the first floor by the peon of the
Magistrate. The witness identified the accused Anoop (A1) thrice. Before identification of
the accused for the second and the third time, the row was re-shuffled and the accused
was allowed to change his shirt. PW159 ascertained from the witness whether he had
any previous acquaintance with the non-suspects.
216.

The accused T.K.Rajeesh (A4) was arrested at 17.00 hours on

07.06.2012. He was produced before the Judicial First Class Magistrate, Vatakara on
08.06.2012.The evidence of Dy.S.P Santhosh (PW166) shows that he was produced
before the Magistrate with his face covered and on that day itself, an application was
made before the Chief Judicial Magistrate, Kozhikode to take action to conduct test
identification parade of that accused by the witnesses Praseed (PW1) and
Ramachandran (CW2). The Chief Judicial Magistrate, as per order dated 08.06.2012,

102

authorised PW159

to conduct the parade. Identification parade of the accused

T.K.Rajeesh(A4) was conducted by PW159 on 11.06.2012.


217. Ext.P335 report and Ext.P336 memorandum of the identification parade
prepared by PW159 and his evidence would show that identification parade of the
accused Rajeesh (A4) was conducted almost in the same manner as referred to in the
case of the accused Anoop(A1). The witnesses Praseed (PW1) and Ramachandran
(CW2) had participated and 13 non-suspects were included in that parade.
218. The accused Shinoj (A7) had surrendered before the Judicial First Class
Magistrate, Vatakara on 10.07.2012.The evidence of Circle Inspector Benny (PW163)
shows that an application (Ext.P366) was made to the court for covering the face of that
accused and for not allowing any visitors in the jail. On 11.07.2012, an application was
made before the Chief Judicial Magistrate, Kozhikode to take action to conduct test
identification parade of that accused by the witnesses Praseed (PW1) and
Ramachandran (CW2). The Chief Judicial Magistrate, as per order dated 11.07.2012,
authorised PW159 to conduct the parade. Identification parade of the accused Shinoj
(A7) was conducted by PW159 on 12.07.2012.
219. Ext.P342 report and Ext.P343 memorandum of the identification parade
prepared by PW159 and his evidence would show that identification parade of the
accused Shinoj (A7) was also conducted almost in the same manner as referred to in
the case of the accused Anoop(A1). The witnesses Praseed (PW1) and Ramachandran
(CW2) had participated and 11 non-suspects were included in that parade.
220. Two main objections raised with regard to the conducting of

test

identification parade of the accused Anoop (A1) are (i) non-suspects of the same age
were not included in the parade and (ii) most of the non-suspects participated in the

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parade were Muslims and therefore, it was easy for the witness to pick out the accused
from them.
221.

The accused Anoop (A1) was aged 30 years at the time of the

identification parade. Ext.P341 list shows that the nine non-suspects participated in the
parade were aged 24, 27, 27, 21, 28, 24, 30, 42 and 32 years respectively. PW159 has
given evidence that the non-suspects selected by them were having similar physical
appearance as that of the accused. Therefore, the difference in the age of the nonsuspects participated in the parade is inconsequential.
222. Learned counsel for the first accused would point out that out of the
nine non-suspects participated in the identification parade of that accused, six were
Muslims and therefore it was easy to identify the accused Anoop (A1) among them.
There is nothing to find that the non-suspects who were Muslims had worn the dothies
to the left side. During the cross examination by counsel for A4 and A5, PW159 has
deposed that all non-suspects were wearing the dothies to the right side as per the
direction given by him. He has also stated that on account of physical appearance, it
would not have revealed that they were Muslims. In these circumstances, the infirmity
pointed out in conducting the test identification parade by including Muslim persons
does not deserve consideration.
223. The infirmities alleged in conducting the test identification parade of the
accused Rajeesh (A4) on the same grounds as referred to above do not merit
consideration for the same reasons as stated above. As far as the identification parade
of the accused Rajeesh (A4) is concerned, an additional ground raised to challenge the
reliability of the parade is that the only bald-headed person participated in that parade
was the accused himself and no one else. PW159 has given evidence that it is incorrect

104

to say that the only bald-headed person participated in the test identification parade of
the accused Rajeesh (A4) was the accused himself.
224.

The infirmity alleged with regard to the identification parade of the

accused Shinoj (A7) is that he had visible marks on his face and that the learned
Magistrate did not take steps to cover those marks before conducting the parade. There
is no material to find that Shinoj (A7) had visible marks on his face making it easy for the
witness to identify him. No suggestion was made to PW1 in the cross examination that
it was on account of any visible marks on the face of Shinoj (A7) that he was able to
identify him during the parade.
225. The evidence of PW159 shows that he had taken all reasonable
precautions to prevent PW1 from seeing the accused before the identification parade.
His evidence shows that the non-suspects selected by him resembled the accused in
physical appearance. At the time of conducting the parades, the accused and the nonsuspects were wearing the same type of dress in the same manner. Before conducting
the parade, the accused had not made any complaint to PW159.

PW159 has

specifically denied the suggestion made to him that the accused had made complaint to
him that they had been shown to the witness and their photographs had also been
shown to the witness at the office of the S.I.T or the police station. The accused were in
judicial custody before conducting the identification parade and there would have been
no occasion for the police to show them to the witnesses before the parade. PW159
has stated in re-examination that if the accused had made any complaint to him, he
would have definitely recorded it. There is no reason to disbelieve the evidence of
PW159 in this regard.
226. It has come out in the evidence of PW159 that he had obtained the

105

signature of the non-suspects in blank paper and subsequently incorporated their name
and address in it at his office. The learned Magistrate should have avoided such a
practice. There is no need to obtain the signature of the non-suspects in the list showing
their name and address. After collecting the name and address of the non-suspects
who participated in the parade from the jail, he could have prepared the list at his office
without their signature in it. However, this irregularity committed by the learned
Magistrate does not in any way affect the validity of the identification parades conducted
by him.
227. Learned counsel for the accused have contended that PW1 had only
touched the body of the accused or pointed out the accused in the identification parades
and that he had not told the Magistrate the role played by the accused or the overt act
committed by the accused.
228. The Magistrate has no duty to interrogate the witnesses who take part in
the test identification parade or elicit facts. In Budhsen Vs State of U.P: A.I.R 1970 SC
1321, it has been held as follows:
''We may here appropriately point out that Shri Pratap Singh (P.W. 20) was called
upon as a Magistrate only to conduct the identification proceedings and it was beyond
his duty to interrogate the witnesses for eliciting other facts or to require them to make
any statement beyond mere identification.''
229. The process of identification by the identifying witnesses involves the
statement by the identifying witnesses that the persons identified were concerned in the
offence. This statement may be express or implied. The identifier may point out by his
finger or touch the person identified, may either nod his head or give his assent in
answer to a question addressed to him in that behalf or may make signs or gestures

106

which are tantamount to saying that the particular person identified was concerned in
the offence. All these statements express or implied including the signs and gesturers
would amount to a communication of the fact of identification by the identifier to another
person (See Ramkishan Mithanlal Sharma Vs State of Bombay: A.I.R. 1955 SC 104).
230. A contention is raised by the defence that the accused were shown to
PW1 at the police station before the identification parade. As noticed earlier, the
accused were in judicial custody when the parades were conducted.Therefore, this
contention has no basis. In Radha Ballabh Vs State of Uttar Pradesh: 1995 (4) JT 206:
1995 SCC(Cr) 797, it has been held as follows:
''The reasoning given by the trial court for discarding these identification
parades is that there was ample time and opportunity for showing the accused to the
witnesses. It must be remembered that the identification is only a part of the
investigation and unless there are good reasons to doubt the proceedings, the same
cannot be rejected on mere suspicion that the accused might have been shown to the
witnesses. We do not find any reason to discard the identification proceedings.
Therefore, the fact that these witnesses have identified the accused during the
identification parades itself is a strong corroborative circumstance to the identification of
the accused made by them in the court.''
231. In 1976 KLT SN 25 (Case No. 57), it has been held as follows:
However we are not satisfied that these omissions would render the identification
parade unacceptable. This can be done only if we reject the evidence of the Magistrate.
We have gone through the evidence carefully. The Magistrate has deposed that she was
satisfied that none of the witnesses knew the non-suspects beforehand. She has also
deposed that all necessary safeguards were taken to prevent easy identification by the

107

witnesses. Under these circumstances, the identification done by P.Ws. 1 to 5 at the


identification parade has to be accepted in corroboration of the evidence of
P.Ws. 1 to 5".
232. Learned counsel for the defence have seriously assailed the validity and
utility of the test identification parade on the ground that the witness had opportunity to
see the photographs of the accused in newspapers and television channels and it is
contended that identification of the accused in the parade is tainted.The counsel
contended that PW1 had seen photographs of the accused

in newspapers and

therefore the identification parade conducted by the Magistrate (PW159) was only a
farce.
233. The impact of newspaper reports on test identification parade has been
considered in various decisions of the Hon'ble High Court and the Apex Court.

In

Suryamoorthi Vs Govindaswamy : (1989) 3 SCC 24: A.I.R 1989 SC 1410, the Hon'ble
Supreme Court has observed as follows:
"It is, however, in evidence that before the identification parades were held the
photographs of the accused persons had appeared in the local daily newspapers.
Besides, the accused persons were in the lock-up for a few days before the identification
parades were held and therefore the possibility of their having been shown to the
witnesses cannot be ruled out altogether. We do not, therefore, attach much importance
to the identification made at the identification parades.''
234. The aforesaid decision of the Apex Court was distinguished by the
Hon'ble High Court in Appu Vs State of Kerala : 1990 Cri.L.J 2281 stating as follows:
"We do not understand these observations as laying down any principle of law
to the effect that in all cases where a witness had seen photograph of an accused in

108

newspapers his evidence has no efficacy. The observations were made in the context of
facts and circumstances of that case. Appreciation of evidence in any case rests upon
the facts, circumstances, peculiarities and probabilities of that case. In the case in hand
the Investigating Officer did not show photographs of accused to witnesses.It is not as if
witnesses had only a fleeting glimpse of the accused. The occurrence witnessed by
P.Ws. 1 to 3 and 5 must have occupied appreciable period of time and the witnesses
would have had ample opportunity to notice the assailants and their features. The
meeting which P.W. 4 had with the assailants must have been an impressive one and he
must have left an indelible impression on his mind and he must have made a good look
at them.Assuming that some of these witnesses accidentally saw photographs of
accused, that could very well have triggered recognition. At any rate, the mere fact that a
witness might have accidentally seen photographs of accused in newspapers,
particularly in the absence of evidence regarding captions or descriptions given in
newspapers, cannot lead to rejection of identification of accused made by witnesses.''
235. In Sajeevan Vs State of Kerala: 1994 Cri.L.J 1316, it has been held as
follows:
''If the idea of conducting a test identification parade is to test the ability of
a witness to identify a particular person, then photograph of the suspect should not be
shown to him in advance. Otherwise the parade becomes only a farce. But that is
different from the Press publishing photos of the accused in newspapers. It is not the
work of the investigating agency, but the exercise of journalistic calibre. Investigating
agency has, normally, no control over such journalistic adventures. Hence such
publication cannot be prevented by the police in a society where freedom of press is
guaranteed. It has become very usual that in sensational criminal cases newspapers

109

would display enthusiasm to publish photos of different facets including photos of the
accused. It is not necessary that witnesses should see such photos in the newspapers.
Even if a witness happens to see the photo of a particular accused in a newspaper we
are not inclined to sideline his evidence regarding identification on that score alone. It
must be remembered that Kerala is a State where there is proliferation of newspapers.
How can a witness be made responsible if newspapers publish the photographs of the
accused? If we are to lay down a proposition that identification evidence of a witness is
liable to be thrown overboard in cases where newspapers published the photo of the
accused, a good number of witnesses in Kerala would be exposed to the peril of being
disbelieved on account of the journalistic adventure and high density of print media in
this State. Of course, it is open to the court to decide whether a witnesses evidence
regarding identification was really influenced by such publication.''
236. The observations made by the Honble High Court nearly two decades
ago with respect to print media are now applicable also to the visual media in Kerala.
This is an era of fierce competition among visual media. Every effort is made by the
visual media in sensational criminal cases to bring to the notice of the public minute
details of investigation. If photographs of the accused had appeared in the television
channels, the investigating officers cannot be blamed for it. It is seen from the records
that they had taken steps to ensure that the faces of the accused who had to participate
in the identification parade were covered when they were produced before the court.
237. In Suman Sood Vs State of Rajasthan: A.I.R 2007 SC 2774, it has
been held as follows:
''It is true and admitted by the prosecution witnesses that the photographs of the
accused were shown on television as also were published in newspapers. That,

110

however, does not in any way adversely affect the prosecution, if otherwise the evidence
of prosecution witnesses is reliable and the Court is satisfied as to identity of the
accused. Even that ground, therefore, cannot take the case of the appellants further. ''
238. In Saji Vs State of Kerala : I.L.R 2007(2) Kerala 335, the decision in
Sajeevan's case was followed and it was held as follows :
''As a matter of fact, all the witnesses denied seeing the photographs in the
newspapers. But even otherwise there is no case that these photographs if at all
published, was at the instance of the investigating officer. If at all photographs have
been published, the responsibility will lie only with the publisher of the newspaper and
not that of the investigating agency. Even otherwise, going by the principles stated by
this court in the decision reported in Sajeevan v. State of Kerala (1993 (1) KLT 712) the
evidence given by the witnesses identifying the accused in the identification parade
cannot be rejected solely on the ground that photographs of the accused were published
in the newspapers. This court and the Honourable Supreme Court have clearly held that
simply because of that reason the evidence cannot be eschewed.''
239. Ext.D9 is the Kerala Kaumudi Daily dated 08.06.2012. In the front page
of this news paper, a small photograph of the person alleged to be T.K.Rajeesh (A4) is
given. No other newspaper containing the photograph of the accused Anoop(A1),
Rajeesh (A4) or Shinoj (A7) has been tendered in evidence by the defence . PW1 is a
coolie worker. He has given evidence that he has not subscribed to any news paper. He
has stated that he had not seen the photographs of the accused in the news papers
before the identification parade. Ext.D9 news paper was shown to PW1 and he has
deposed that he could not say whether it contains the photograph of Rajeesh (A4). He
has stated that he has no habit of reading news papers but he read them occasionally.

111

PW1 has stated in re-examination that after 08.06.2012, he had not seen the
photograph of Rajeesh (A4) or any other accused in any news paper. He would say that
he had not read any news paper at all. May be his statement to that effect is an
exaggeration. But, the fact remains that the defence has not tendered in evidence any
news paper containing the photographs of the accused Anoop (A1) and Shinoj (A7).
Apart from Ext.D9 news paper, one English news paper and the news paper 'Flash'
containing the photograph of Rajeesh (A4) were produced by the defence. There is
nothing to find that PW1 had occasion to see these newspapers before the identification
parade held on 11.06.2012 in respect of Rajeesh (A4). Therefore, the contention that the
identification parades conducted in the case have no value does not merit acceptance.
Recovery and Identification of Weapons
240. The recovery of MO1 series swords was made on the basis of the
disclosure statement made by the accused Pradeepan(A31). Except the evidence of
PW1 identifying MO1 series swords as the weapons used by the assailants, there is
nothing in evidence to connect the recovery of the swords with accused 1 to 7.
241.

PW1 has not made any direct statement before the court that MO1

series swords in the court are the weapons used by the assailants in the incident on
04.05.2012. His evidence is that at the time of recovery of the swords he identified
them as the swords which were used in the incident on 04.05.2012. Thereafter, PW1
has identified the swords in the court as the sowrds recovered by the police from a well.
242. Dy.S.P Shoukathali (PW164) has given evidence that at 13.00 hours on
15.05.2012, he arrested the accused Pradeepan (A31) at the office of the Dy.S.P,
Vatakara.Pradeepan (A31) made a statement to him that if he was taken, he would show
the place where the swords were at first kept and the well in which the swords were

112

hidden

subsequently.

Ext.P370

is

the

disclosure

statement

of

the

accused

Pradeepan(A31). PW164 has stated that he made available the assistance of two
government officers as witnesses for recovery. He also made available the assistance of
a person who had got experience in getting inside wells. He made arrangements to
procure the presence of Praseed (PW1) and Ramachandran (CW2). PW164 has stated
that as led by the accused Pradeepan(A31), together with the persons mentioned
above, he reached near Vasudeva Service Center in Chokli. The accused Pradeepan
(A31) pointed out a well behind the Vasudeva Service Center. Rajesh (PW33) got
inside the well and searched . He took out five swords and got them out of the well.
PW164 has stated that Praseed (PW1) and Ramachandran (CW2) identified the swords
as the weapons used by the assailants. PW164 took measurements of the swords, got
them dried, packed them in brown paper and sealed and affixed label on them which
contained his signature and the signature of the witnesses. PW164 has stated that he
seized the swords as per Ext.P28 mahazar. He identified in the court the swords (MO1
series) recovered from the well and seized by him as per Ext.P28 mahazar.
243.

Rajesh (PW33) has given evidence regarding the recovery of the

swords from the well. He is a person doing the work of digging wells. He has given
evidence that as per the direction given by the Dy.S.P, Thalassery, he reached the office
of the Dy.S.P and accompanied the Dy.S.P (PW164). He identified the accused
Pradeepan (A31) and stated that Pradeepan was with them. PW33 has given evidence
that Pradeepan (A31) pointed out a well behind the Vasudeva Service Center. PW33
has stated that the Dy.S.P directed him to get inside the well and to inspect. He got
inside the well and searched . He obtained five swords from the mud. He placed them
in a bucket and got them outside. PW33 identified MO1 series as the swords took out

113

by him from the well.

244. There is no sufficient ground to disbelieve the evidence of PW33. He


was an accused in a criminal case in which the allegation was that he had attacked
C.P.I (M) workers. It is not a sufficient ground to disbelieve his tesimony regarding the
recovery of MO1 series swords at the instance of the accused Pradeepan (A31).
245. PW34 Sasidharan Pillai is working as Junior Superintendent in the Taluk
Office, Thalassery. He has given evidence that as per the direction of the Thahasildar,
on 15.05.2012 he had gone to the office of the Dy.S.P alongwith U.D.Clerk Shaleesh
(CW61). They

accompanied the Dy.S.P (PW164). PW34 identified the accused

Pradeepan (A31) and stated that Pradeepan was with them. PW34 has given evidence
that Pradeepan (A31) pointed out a well behind a work shop and stated that it was in the
well. As per the direction of the Dy.S.P, a person got inside the well and made search in
the water and took out five swords. PW34 identified MO1 series as the swords took out
from the well. PW34 has stated that the Dy.S.P

took measurements of the swords,

packed and sealed them and seized them as per a mahazar. PW34 identified his
signature in Ext.P28 mahazar.
246. There is absolutely no reason to find that PW34 has given false
evidence against the accused. His testimony regarding the recovery of MO1 series
swords at the instance of the accused Pradeepan (A31) is absolutely trustworthy.
247. The fact that Ext.P28 mahazar was not attested by persons from the
locality is not a sufficient ground to discard the evidence of recovery of MO1 series
swords at the instance of the the accused Pradeepan (A31). In this context it is apposite
to refer to the decision of the Apex Court in State of Gujarat Vs Raghunath Vamanrao

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Baxi : A.I.R 1985 SC 1092 in which it has been held as follows :


In appreciating oral evidence, the question in each case is whether the witness is a
truthful witness and whether there is anything to doubt his veracity in any particular
matter about which he deposes. Where the witness is found to be untruthful on material
facts that is an end of the matter. Where the witness is found to be partly truthful or to
spring from tainted sources, the Court may take the precaution of seeking some
corroboration, adequate and reasonable to meet the demands of the situation, but a
court is not entitled to reject the evidence of a witness merely because they are
government servants, who, in the course of their duties or even otherwise, might have
come into contact with investigating officers and who might have been requested to
assist the investigating agencies. If their association with the investigating agencies is
unusual, frequent or designed, there may be occasion to view their evidence with
suspicion. But merely because they are called in to associate themselves with the
investigation as they happened to be available or it is convenient to call them, it is no
ground to view their evidence with suspicion. Even in cases where officers who, in the
course of their duties, generally assist the investigating agencies, there is no need to
view their evidence with suspicion as an invariable rule. For example, in rural areas,
investigating officers would ordinarily think of calling in the village officers, such as, the
Headman, the Patel or Patwari to act. as punch witnesses, as they are expected to be
respectable persons of the locality. It does not mean that their evidence should be
viewed with suspicion because they are government servants or because they are
generally associated with investigating agencies whenever there is a crime in the village.
For that matter it would be wrong to reject the evidence of police officers either on the
mere ground that they are interested in the success of the prosecution. The court may

115

be justified in looking with suspicion upon the evidence of officers who have been,
demonstrated to have displayed excess of zeal in the conduct and success of the
prosecution.
248.

The decision referred to above shows that the act of government

officers assisting the investigating officers cannot be viewed with suspicion. Their
evidence cannot be discarded for the reason that they are government officers.
249. There is also no force in the plea of the defence that non-attestation of
Ext.P28 mahazar by independent witnesses from the locality makes the recovery
suspicious.The evidence relating to recoveries is not similar to that contemplated under
Section 103 of the Criminal Procedure Code where searches are required to be made in
the presence of two or more inhabitants of the locality in which the place to be searched
is situate. Recovery could be proved even by the solitary evidence of the investigating
officer if his evidence could otherwise be believed (H.P. Administration Vs Om Prakesh :
A.I. R 1972 SC 975).
250. When recovery of an object is made pursuant to the information given by
the accused, there is no obligation on the investigating officer to call independent
witnesses from the locality to witness the recovery or to attest the recovery mahazar. It
is relevant here to make reference to the dictum laid down by the Hon'ble Supreme
Court in State Vs. Sunil : 2001 Cri.L.J 504, which reads as follows:
In this context we may point out that there is no requirement either under
Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure,
to obtain signature of independent witnesses on the record in which statement of an
accused is written. The legal obligation to call independent and respectable inhabitants
of the locality to attend and witness the exercise made by the police is cast on the police

116

officer when searches are made under Chapter VII of the Code. Section 100(5) of the
Code requires that such search shall be made in their presence and a list of all things
seized in the course of such search and of the places in which they are respectively
found, shall be prepared by such officer or other person "and signed by such witnesses".
It must be remembered that search is made to find out a thing or document which the
searching officer has no prior idea where the thing or document is kept. He prowls for it
either on reasonable suspicion or on some guess work that it could possibly be ferreted
out in such prowling. It is a stark reality that during searches the team which conducts
search would have to meddle with lots of other articles and documets also and in such
process many such articles or documents are likely to be displaced or even strewn
helter-skelter.The legislative idea in insisting on such searches to be made in the
presence of two independent inhabitants of the locality is to ensure the safety of all such
articles meddled with and to protect the rights of the persons entitled thereto. But
recovery of an object pursuant to the information supplied by an accused in custody is
different from the searching endeavour envisaged in Chapter VII of the Code.
251.

There is no sufficient ground to discard the evidence of PW164

regarding the recovery of MO1 series swords from a well at the instance of the accused
Pradeepan(A31) as per Ext.P28 mahazar. His evidence in that regard is corroborated by
the evidence of PW33 and PW34. It is also to be noted that Ext.P28 mahazar and MO1
series swords as per Ext.P371 property list had reached the Court of the Judicial First
Class Magistrate, Vatakara at 1.30 p.m on 16.05.2012 , without any delay.
252. The plea of the accused Pradeepan(A31) is that he had not given any
confession statement to PW164 and that no recovery of any weapon was effected as
per Ext.P28 mahazar. There is no reason to disbelieve the evidence of PW33 and PW34

117

regarding the recovery of the swords from the well as per Ext.P28 mahazar. These
witnesses have got no axe to grind against the accused Pradeepan (A31). Discovery of
the fact of concealment of the swords inside the well is confirmed by the recovery of the
swords from the place pointed out by the accused to PW164.
253. It is the usual contention of the accused during the trial of a case that he
has not made any disclosure statement to the investigating officer. It is an archaic notion
that actions of police officers should be approached with initial distrust. The court cannot
start with the presumption that police records are untrustworthy. As a proposition of law,
the presumption should be the other way around. When a police officer gives evidence
in court that a certain article was recovered by him on the strength of the statement
made by the accused it is open to the court to believe the version to be correct if it is not
otherwise shown to be unrealiable. It is for the accused, through cross-examination of
witnesses or through any other materials, to show that the evidence of the police officer
is unreliable or at least unsafe to be acted upon. (State Vs. Sunil : 2001 Cri.L.J 504
(SC)).
254. In the instant case, recovery of the swords was made from the water in a
well. Even with greatest possible care, the police would not have been able to recover
them unless clue was furnished by the accused Pradeepan (A31). This circumstance by
itself, appears to be sufficient guarantee of the truth and the authenticity of the recovery
of swords on the basis of the information furnished by the accused. The police would not
have known, unless told by Pradeepan (A31), that the swords were lying under water
inside a well. The defence has no case that PW164 planted or put the swords inside the

118

well and the recovery of them as per Ext.P28 mahazar was a drama enacted by PW164.
No such suggestion was made to PW164 in the cross examination.

255. It is true that Ext.P370 disclosure statement does not show that the
accused Pradeepan (A31) had told PW164 that he was the person who concealed the
swords in the well. Authorship of concealment is not stated in Ext.P370. However, the
contention that the accused had not in first person singular stated to PW164 that he had
concealed the swords in the well does not appear to be too relevant now after the
decision of the Full Bench of the Hon'ble High Court in Ajayan Vs State of Kerala (2011
(1) K.L.T 8). Disclosure of authorship of concealment is no longer sine qua non to
entitle/justify admission of information under section 27 of the Evidence Act. Moreover,
Pradeepan (A31) has significantly not offered any explanation as to how he knew of
such concealment. His plea is of total denial. The inference is irresistible, in the absence
of better explanation, that he who knew of the fact of concealment was also responsible
for such concealment. This view gains support from the decision of the Apex Court in
State of Maharashtra Vs Suresh: 2000 SCC (Cri) 263 wherein it is stated as follows:
"We too countenance three possibilities when an accused points out the place
where a dead body or an incriminating material was concealed without stating that it was
concealed by himself. One is that he himself would have concealed it. Second is that he
would have seen somebody else concealing it. And the third is that he would have been
told by another person that it was concealed there. But, if the accused declines to tell
the criminal Court that his knowledge about the concealment was on account of one of
the last two possibilities the criminal Court can presume that it was concealed by the
accused himself. This is because the accused is the only person who can offer the

119

explanation as to how else he came to know of such concealment and if he chooses to


refrain from telling the Court as to how else he came to know of it, the presumption is a
well-justified course to be adopted by the criminal Court that the concealment was made
by himself. Such an interpretation is not inconsistent with the principle embodied in
Section 27 of the Evidence Act."
256.

The authenticity of the recovery of swords and fairness of investigation can

be inferred from another fact. Pradeepan (A31) was the first person to be arrested in the
case. Though the incident had taken place on 04.05.2012, till 15.05.2012, the
investigating officers could not arrest any person who was involved in the incident. If the
recovery of swords was fabricated, on the basis of such recovery, it would have been
very easy for the investigating officers to falsely implicate Pradeepan (A31) in the case
as an assailant who had chopped the victim to death. The very fact that he is implicated
in the case only as a person who concealed the weapons of offence indicates the truth
and the fairness of investigation.
257. Thus, recovery of MO1 swords on the basis of Ext.P370 disclosure
statement made by the accused Pradeepan (A31) stands proved beyond doubt.
258. PW1 has given evidence that on 15.05.2012, alongwith Ramachandran
(CW2), he went to the office of the Dy.S.P, Thalassery.
accompany the jeep of the Dy.S.P (PW164).

They were directed to

PW1 has deposed that the accused

Pradeepan (A31) pointed out a well behind Vasudeva Service Station near the C.M.C
Hospital, Chokli and stated that the swords were in that well. As per the direction of the
Dy.S.P, a person got into the well and took out five swords. PW1 has deposed that he
identified those swords as the weapons used by the assailants in the incident on
04.05.2012. PW1 identified Pradeepan (A31) in the court. PW1 also identified the five

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swords (MO1 series) in the court.


259. It is true that PW1 has not identified MO1 series swords in the court as
the weapons used by the assailants to inflict injuries on the victim. However, his
evidence shows that he was present when the swords were recovered from the well as
per Ext.P28 mahazar and then he identified them as the weapons used by the
assailants in the incident on 04.05.2012. Therefore, his evidence indirectly amounts to
identification of MO1 series swords as the weapons used by the assailants to inflict the
fatal injuries on the victim.
260. It is true that PW1 or CW2 has not attested Ext.P28 mahazar. It is not
even mentioned in Ext.P28 mahazar that they were present at the time of recovery of
the swords from the well. It is also not mentioned in Ext.P28 mahazar that they had
identified the swords as the weapons of offence. However, there is no sufficient ground
to disbelieve the evidence of PW1 and PW164 regarding identification of the swords as
the weapons of offence by PW1 at the time of recovery of the swords from the well as
per Ext.P28 mahazar.

It has come out in evidence that PW164 had recorded the

statement of PW1 and CW2 on 15.05.2012 regarding the identification of the swords as
the weapons of offence. In fact, the evidence of PW1 that he identified the swords as
the weapons of offence at the time when they were recovered from the well has not
been successfully challenged in the cross examination.
261. In fact, in Narpal Singh Vs. State of Haryana : A.I.R 1977 SC 1066, the
Apex Court had cautioned investigating officers not to associate any eye-witness with
recovery memos because that partakes of an attempt to make the witness omnibus.
262. There are two circumstances which would corroborate the evidence of
PW1 that MO1 series swords are the weapons used by the assailants.

The first

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circumstance is the nature of the fatal injuries sustained by the deceased and the
opinion of the doctor who conducted the autopsy.

PW136, the doctor who conducted

autopsy, has opined that injuries 1 to 7 and 10 to 14 noted in Ext.P179 postmortem


certificate (sharp cut injuries) could be caused by the sharp edge of MO1 series swords.
He has also opined that multiple and transverse nature of the injuries suggest multiple
chopping action with heavy sharp long cutting weapons. Therefore, the multiple incised
wounds sustained by the deceased suggest the use of MO1 series swords to inflict
them.
263. The second circumstance indicating the use of MO1 series swords by
the assailants is the presence of blood on them. Ext.P574 report obtained from the
Forensic Science Laboratory, Thiruvananthapuram shows that there was blood on the
five swords (MO1 series) but it was not sufficient to determine its origin and group.
(Admissibility of Ext.P574 report in evidence without examining the person who issued it
shall be discussed later).
264. It is true that there is no proof that the blood on MO1 series swords was
human blood. But, absence of proof regarding origin of blood does not deter the court
from making an inference that MO1 series swords are the weapons of offence.
265. In State of Rajasthan Vs Teja Ram : A.I.R 1999 SC 1776, it has been
held as follows:
''Failure of the Serologist to detect the origin of the blood, due to
disintegration of the serum in the meanwhile, does not mean that the blood stuck on the
axe would not have been human blood at all. Sometimes it happens, either because the
stain is too insufficient or due to haematological changes and plasmatic coagulation that
a Serologist might fail to detect the origin of the blood. Will it then mean that the blood

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would be of some other origin? Such a guess work that blood on the other axe would
have been animal blood is unrealistic and farfetched in the broad spectrum of this case.
The effort of the criminal court should not be to prowl for imaginative doubts. Unless the
doubt is of a reasonable dimension which a judicially conscientious mind entertains with
some objectivity no benefit can be claimed by the accused. ''
266. In R. Shaji Vs State of Kerala: A.I.R 2013 SC 651, it has been held as
follows:
''It has been argued by the learned counsel for the appellant, that as the blood
group of the blood stains found on the chopper could not be ascertained, the recovery of
the said chopper cannot be relied upon. A failure by the serologist to detect the origin of
the blood due to dis-integration of the serum, does not mean that the blood stuck on the
axe could not have been human blood at all. Sometimes it is possible, either because
the stain is insufficient in itself, or due to haematological changes and plasmatic
coagulation, that a serologist may fail to detect the origin of the blood in question.
However, in such a case, unless the doubt is of a reasonable dimension, which a
judicially conscientious mind may entertain with some objectivity, no benefit can be
claimed by the accused in this regard.''
267. In the absence of any explanation offered by the accused Pradeepan
(A31) regarding the presence of blood on MO1 series swords and in the absence of any
plea raised by him that it is not human blood, absence of proof of origin of the blood is
inconsequential .
268. Thus, it stands proved that MO1 series swords are the weapons used
by the assailants to inflict the fatal injuries on the deceased.
Identification of Innova Car

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269.

PW1 identified the Innova car KL-58/D 8144 which was parked in the

compound of the court as the car involved in the incident.


270. PW1 has given evidence that he had noticed the car at the time of the
incident.He would say that there was something written in Arabic language on the front
and the rear glasses of the car.He has stated that at the time of the incident, the number
of the car was KL-18A-5964.
271. PW1 has also given evidence regarding the seizure of the Innova car
which was

found abandoned at the place Punathilmukku.

He has stated that on

05.05.2012, at about 11.00 hours, he was standing near the scene of the incident and
talking to Ramachandran (CW2). Then he heard two policemen on duty there saying
that the car involved in the incident was found abandoned near Chokli.

Alongwith

Ramachandran, he approached the Dy.S.P, Vatakara (PW165) who was present there
and told him that they could identify the car involved in the incident. PW1 has stated
that 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 language on the front
and the rear glasses 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.
272. The evidence of Dy.S.P Jossy Cherian (PW165) regarding the seizure

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of the car is also relevant here. PW165 has given evidence that at about 11.30 hours on
05.05.2012, when he was near the scene of the incident, Panoor Circle Inspector Jayan
Dominic (PW149) called him over phone and informed him that an Innova car was seen
being abandoned at the

place Punathilmukku. PW165 then directed the

Circle

Inspector to find out the registered owner of the car and to bring him with spare key of
the vehicle. PW165 has stated that then Praseed (PW1) and Ramachandran (CW2)
approached him and told him that they could identify the Innova car in which the
assailants travelled and that they had seen the incident. PW165 then made arrangments
to make available the assistance of forensic experts, dog squad etc. Then he proceeded
to Punathilmukku with Praseed (PW1) and Ramachandran (CW2). When they reached
there, they saw the car KL-58D-8144 at the northern side of the canal road there.
PW165 has stated that then Praseed (PW1) and Ramachandran (CW2) identified the
aforesaid vehicle as the car which was involved in the incident. Using the spare key
given by Naveen Das (PW7), the registered owner of the car, it was opened. The car
was then got inspected by the dog squad. Finger print experts and Scientific Assistant
(PW148) also inspected the car. PW165 has stated that he seized the articles found
inside the car and also the car as per Ext.P1 mahazar. PW165 identified the Innova car
KL-58/D 8144 which was parked in the compound of the court as the car seized by him
as per Ext.P1 mahazar.
273.

Jayan Dominic (PW149), the Circle Inspector of Panoor has given

evidence that on 05.05.2012, at about 10.00 hours, he got information that an Innova
car was seen being abandoned at the place Punathilmukku. He immediately went to
that place with police party. He saw the car KL-58D-8144 near the canal road there in a

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locked condition. He conveyed the information to the Dy.S.P, Vatakara (PW165). As per
the direction given by the Dy.S.P, Vatakara (PW165), he collected information from the
cyber cell that Naveen Das (PW7) was the registered owner of the car. He took steps to
bring Naveen Das (PW7) to the place with the spare key of the car. After some time,
Dy.S.P, Vatakara (PW165)

reached there. The two persons who were with Dy.S.P,

Vatakara (PW165) identified the vehicle as the car which was involved in the incident on
the previous day. Then Naveen Das (PW7) came with the spare key of the car. PW149
has also deposed that the car was then subjected to necessary examination by the
experts.
274. Naveen Das (PW7) is the registered owner of the car KL-58D-8144. He
has given evidence regarding the renting out of the car. He has also stated that on
05.05.2012, at about 11-11.30 hours, the police came to his house and asked him about
the registration particulars of the vehicle and they demanded the spare key of the car.
PW7 has stated that he went with them with the spare key of the car and reached the
place Punathilmukku. There he saw his Innova car in an abandoned manner. He
entrusted the spare key of the car with the police. PW7 has stated that then he saw
sticker in Arabic language on the front and the rear glasses of the car. He also saw that
paint from the right side of the bumper of the car was removed. PW7 also identified the
Innova car KL-58/D 8144 which was parked in the compound of the court as the car
mentioned in his evidence.
275. There is overwhelming evidence to find that the car KL-58D-8144 was
found abandoned at the place Punathilmukku on the morning of 05.05.2012. The
evidence of PW1, PW7, PW149 and PW165 proves that fact beyond any doubt. There

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is no sufficient ground to disbelieve their testimony in that regard. The evidence of


Jeevan George (PW111), Sub Inspector of Nadapuram police station who had reached
there and removed the car to Edacherry police station as per the direction of PW165
corroborates their evidence in that regard.
276. The crucial question is whether the vehicle involved in the incident was
the Innova car KL-58D-8144 which was found abandoned at the place Punathilmukku
on the morning of 05.05.2012. Can identification of that vehicle by PW1 as the car which
was involved in the incident be accepted as reliable and trustworthy?
277. The evidence of PW1 is that at the time of the incident the number of
the car in which the assailants came was KL-18A-5964. The number of the car found
abandoned at the place Punathilmukku and the number of the car identified by PW1 in
the court is

KL-58D-8144 . Therefore, on the basis of the number of the vehicle,

identification of the car by PW1 as the car involved in the incident cannot be accepted.
278. PW1 has deposed that the Innova car involved in the incident was
having light colour. Learned counsel for the accused have vehemently attacked the
evidence of PW1 in this regard contending that there is no such colour as light colour.
There is no force in this criticism. When the colour cannot be specifically stated as red,
green, yellow etc, and when the colour is light and it could not be specifically named, a
layman would describe it generally as light colour. The law of evidence cannot be far
apart from the law of life. Courts in dealing with ordinary human beings, prone to error
and make innocent mistakes, cannot import a rigour of discipline alien to day-to-day life,
merely because the person speaks as a witness. A realistic approach, counselled by
ordinary probabilities of life and informed by experience of life, must enter judicial

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evaluation of facts. Realistic diversity, and not rigid uniformity, is the law of life.
Trivialities cannot be the touch-stone to test evidence. (See Narayanan Vs State of
Kerala : I.L.R 1991 (3) Ker 197). Ext.P349 is the registration particulars of the vehicle
KL-58D-8144 issued by the Joint R.T.O, Thalassery (PW161). It shows that the colour of
that vehicle is champagne mica metalic. PW1 could not have known about a colour
having that name. One cannot expect him to state that name as the colour of the car
which he saw during the incident. He could have only stated that it was a car having light
colour that he saw at the time of the incident. There is no infirmity in his evidence in that
regard.
279. It is relevant here to extract the observations made in State of Sikkim v.
Rakesh Rai : 2012 Cri.L.J 2737 which read as follows:
''Doubt was also expressed as to the identity of the Maruti Car WNC-525 in view of
the differing colours stated by the prosecution witnesses. In our view, this question is not
so grave as to affect the substance of the prosecution evidence. The various witnesses
who have described the colour of the vehicle are P.W.15 as per whom it was 'steel gray',
P.W.16 as 'ash colour', P.W.30 as 'blue', P.W.45 as 'sky blue' and P.W.46 as 'ash colour'.
These descriptions in any case do not detract from the fact that each of the witnesses
had identified the Maruti Car Exhibit MO-I when shown to them during the course of their
examination. The colours in any case are quite uniform and not conflicting as they are
almost of the same shade. The contention, therefore, stands rejected.''
280. The specific thing which would have enabled PW1 to identify the car
involved in the incident at a later time was the sticker in Arabic letters on the front and
the rear glasses of the car. PW1 has given evidence that when he saw the car

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KL-58D-8144 at the place Punathilmukku on 05.05.2012, the writing in Arabic letters on


the front and the rear glasses of the car was there on it. Therefore, PW1 could have
easily identified it as the same car which he saw at the time of the incident.
281. The car was seized by PW165 as per Ext.P1 mahazar. In Ext.P1 it is not
mentioned that there was writing in Arabic letters on the front and the rear glasses of the
car. It can only be an omission. True, it is omission of an important fact in Ext.P1
mahazar. But, there is other evidence to find that when the car was found at the place
Punathilmukku on 05.05.2012 , there was writing in Arabic letters on the front and the
rear glasses of the car. PW7 has given evidence that when he found his car at the place
Punathilmukku on 05.05.2012, he had seen sticker in Arabic language on the front and
the rear glasses of the car. He has stated that after he got the car on interim custody
from the court, when he removed the cooler film of the car, he had removed the
aforesaid sticker also from the car. Ext.C1 is the bond executed by PW7 on 20.09.2012
for getting the car on interim custody. Ext.C2 series are the photographs of the car taken
for getting it on interim custody and Ext.C3 is the compact disc containing the images of
those photographs. Two photographs in Ext.C2 series show that there was sticker in
Arabic language on the car . In these circumstances, there cannot be any doubt with
regard to the fact that when the car was produced in the committal court, the aforesaid
sticker was on it.
282. There was no undue delay in producing Ext.P1 mahazar and the car in
the committal court.The initials of the Magistrate with the date 07.05.2012 on Ext.P1
mahazar shows that it had reached him on that day. (06.05.2012 was a Sunday). The
endorsement of the Magistrate on Ext.P386 property list shows that the car and the

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articles seized from it were produced before him at 21.00 hours on 07.05.2012.

283. Police Photographer Raghavendran (PW146) has given evidence that


he had taken photographs of the car KL-58D-8144 found at the place Punathilmukku on
05.05.2012. Dy.S.P Santhosh (PW166) has given evidence that PW146 produced
before him the aforesaid photographs and the compact disc containing the images and
that he seized them as per Ext.P194 mahazar. Ext.P456 series are the photographs and
Ext.P457 is the compact disc. They were produced in the committal court on
23.05.2012. Ext.P456 and Ext.P456 (c) photographs reveal that there was sticker
containing Arabic letters on the front and the rear glasses of the car which was found
abandoned at the place Punathilmukku on 05.05.2012 .
284. In the aforesaid circumstances, identification of the car KL-58D-8144 in
the court by PW1 as the car involved in the incident can be accepted as reliable and
trustworthy.
285. Learned counsel for the accused would point out that Ext.D24 call data
record of the mobile phone number of PW1 shows that on 05.05.2012 his cell phone
was never under the territorial limits of any tower in Kannur District and it would indicate
that he was not present at the place Punathilmukku in Kannur District on that day. It is
also pointed out that the call data record of the cell phone of PW1 would show that he
was at various places in Kozhikode District on that day. This plea cannot be accepted.
PW1 has stated that the cell phone is being used not only by him but also by his wife.
The defence has not brought out in the cross examination any admission from PW1 that

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he was carrying the cell phone with him when he went to the place Punathilmukku with
the Dy.S.P (PW165).

Without ascertaining that fact from him and without making

any suggestion to him that he was at various places in Kozhikode District, his
creditworthiness cannot be impeached.
286. In Laxmibai Vs Bhagwantbuva : A.I.R 2013 SC 1204, It has been held
as follows:
Furthermore, there cannot be any dispute with respect to the settled legal
proposition, that if a party wishes to raise any doubt as regards the correctness of the
statement of a witness, the said witness must be given an opportunity to explain his
statement by drawing his attention to that part of it, which has been objected to by the
other party, as being untrue. Without this, it is not possible to impeach his credibility.
Such a law has been advanced in view of the statutory provisions enshrined in Section
138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a
witness as regards information tendered in evidence by him during his initial
examination in chief, and the scope of this provision stands enlarged by Section 146 of
the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his
veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the
reason that it is impossible for the witness to explain or elaborate upon any doubts as
regards the same, in the absence of questions put to him with respect to the
circumstances which indicate that the version of events provided by him, is not fit to be
believed, and the witness himself, is unworthy of credit. Thus, if a party intends to
impeach a witness, he must provide adequate opportunity to the witness in the witness
box, to give a full and proper explanation. The same is essential to ensure fair play and

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fairness in dealing with witnesses.


287. There are other circumstances which corroborate the evidence of PW1
regarding the identification of the car. Ajeesh Thekadavan (PW148) is the Scientific
Assistant who had inspected the car and the motor cycle involved in the incident.
PW148 has given evidence that he examined the car KL-58D-8144

at the place

Punathilmukku on 05.05.2012 and collected blood-stains from the back cover of the
middle seat of the car. He had produced the sealed packet containing the blood-stains
before the Dy.S.P (PW165) on 05.05.2012 itself. It was seized by the Dy.S.P as per
Ext.P382 mahazar. It was produced before the Magistrate on 07.05.2012 as per
Ext.P390 property list. Ext.P574 report of the Forensic Science Laboratory,
Thiruvanathapuram shows that the blood-stains thus collected from the car (shown as
item no.11 in the report) contained human blood belonging to group A. The scene of the
incident had been inspected by Scientific Assistant K.K.Ramya ( PW142). She has given
evidence that on 05.05.2012 she had inspected the scene of the incident and collected
five items which included soil containing reddish brown stain and packed them
separately and entrusted them with the investigating officer (PW163). The sealed
packets produced before the Dy.S.P( PW165) were seized as per Ex.P383 mahazar.
They were produced before the Magistrate on 07.05.2012 as per Ext.P391 property list.
Ext.P574 report shows that the aforesaid two items thus collected from the scene of the
incident (shown as items no.29 and 30 in the report) contained human blood belonging
to group A. Scientific Assistant Ajeesh Thekadavan (PW148) has given evidence that he
had collected blood-stain from the scene of the incident. Ext.P574 report shows that the
stains thus collected from the scene of the incident (shown as item no.18 in the report)
contained human blood belonging to group A. At the time of the incident the deceased

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was travelling on the motor cycle KL-18A-6395. PW148 had collected blood-stains from
the number plate and the visor of the motor cycle KL-18A-6395. Ext.P574 report shows
that the stains thus collected from the motor cycle (shown as item no.20 in the report)
contained blood but the origin and group of it could not be determined. Ext.P571 report
of D.N.A analysis shows that the blood collected from the Innova car by Scientific
Assistant Ajeesh Thekadavan (shown as item no.11 in page 13 of Ext. P571 report) is a
mixture of the blood belonging to the deceased and the accused Sijith (A6). Ext.P571
report of D.N.A analysis further shows that soil containing reddish brown stain collected
from the scene of the incident by Scientific Assistant K.K.Ramya (shown as items 29
and 30 in page 14 of the report) contains blood belonging to the deceased .
288. The presence of blood belonging to the deceased T.P.Chandrasekharan
inside the car KL-58D-8144 which was seen abandoned at the place Punathilmukku on
05.05.2012 and also the same type of blood at the scene of the incident is a clinching
piece of evidence to find that it was the car involved in the incident and used by the
assailants.
289. Scientific Assistant Ajeesh Thekadavan (PW148) has given evidence
that he collected the paint flakes found on the front tyre of the motor cycle KL-18A-6395
and packed and sealed the packet and entrusted it with the Dy.S.P, Vatakara. Circle
Inspector V.V.Benny (PW163) has given evidence that when he prepared Ext. P20
scene mahazar, he saw paint flakes at the scene of the incident and that he collected
them and packed and sealed the packet and seized it as per Ext. P20 mahazar.
Ext.P573 report of the Forensic Science Laboratory, Thiruvanathapuram shows that on
comparison of the aforesaid paint flakes (shown as items 10 and 19 in the report) with

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the paint of the Innova car KL-58D-8144, it was found that the paint flakes collected
from the front tyre of the motor cycle KL-18A-6395 belonged to the right front lower
bumper of the Innova car KL-58D-8144 and that the paint flakes collected from the
scene of the incident were similar to the paint of the Innova car KL-58D-8144. This is
another clinching piece of evidence to find that it was the car involved in the incident and
used by the assailants.
290. Salim Vijayakumar (PW103) was the Motor Vehicles Inspector in the
R.T.O Office, Vatakara. His evidence shows that on 01.06.2012, at 13.00 hours, he had
inspected the Innova car KL-58D-8144 at the premises of Edacherry police station. His
evidence and Ext.P104 certificate issued by him show that the car had the following
damages: (1) Front bumper slightly dislocated at the left side end (2) Front bumper
dislocated at the right side end (3) Bumper mounting bracket at right side bottom bent
(4) Scratches on bottom portion of the front bumper at the middle of right half (5) Broken
out the painting with filler compound at bottom right side corner of the bumper (6) Right
side door panels slightly scratched along 15cm at the middle of both doors.
291. PW103 had inspected the motor cycle KL-18A-6395 at 16.00 hours on
01.06.2012 at the premises of Vatakara police station. His evidence and Ext.P105
certificate issued by him show that the motor cycle had the following damages: (1)Front
left side indicator broken (2) Headlight visor scratched at bottom right side (3) Front both
sides shock absorber stems slightly bent (4) Right side shock absorber dust cup broken
(5) Front crash guard bent at right side (6) Front left side footrest bent (7) Rear
indicators on both sides broken.
292. The damages mentioned above, especially the breaking of paint at the

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bottom right side corner of the bumper of the car, also indicate the involvement of the
Innova car KL-58D-8144 in the incident.
293. Thus, the prosecution has proved beyond reasonable doubt that the car
KL-58D-8144 was the car involved in the incident and used by the assailants.
294.

The evidence of PW165 shows that finger print experts had lifted

chance prints from the Innova car KL-58D-8144 when it was found abandoned at the
place Punathilmukku. The evidence of PW144, a finger print expert, shows that he had
lifted chance prints from the plastic bottle found inside the car and the rear view mirror of
the car. PW146, a police photographer, has given evidence that he had taken
photographs of the finger impressions found in the Innova car. PW145, a Test Inspector,
has given evidence that PW146 had entrusted to him the photographs of the chance
prints. PW145 would say that he entrusted the photographs with the Dy.S.P and they
were seized as per Ext.P192 mahazar. PW147, a finger print expert, has given evidence
that he received from the investigating officer the photographs of the chance prints and
finger print slips of 21 accused involved in the case for comparison. PW147 has stated
on cross examination that the chance prints lifted from the Innova car did not tally with
the finger print of the accused. Dy.S.P Santhosh (PW166) has given evidence that no
report was received regarding the chance prints lifted from the Innova car.
295. The prosecution has not produced the report of the finger print expert
showing the result of the comparison of the chance prints lifted from the Innova car
KL-58D-8144 with the finger print slips of the accused. The contention of the defence is
that the chance prints obtained from the Innova car tallied with the finger prints of some
other persons and therefore, the prosecution has suppressed that report. The defence

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did not take any steps to cause production of this report by the prosecution. Inspite of
such steps taken by the defence if the prosecution failed to produce the report of the
finger print expert, then adverse inference should have been drawn against the
prosecution. Even if there was report of the result of comparison of the chance prints
lifted from the Innova car with the finger print slips of the accused, without an application
by the defence, the prosecution is not bound to produce it since the prosecution does
not rely upon such report to prove the case against the accused. In Sidhartha Vashisht
Vs State : A.I.R 2010 SC 2352, the Apex Court has held that the investigating officer is
entitled to collect all the material, what in his wisdom is required for proving the guilt of
the offender. Where section 91 read with section 243 Crl.P.C says that if the accused is
called upon to enter on his defence and produce his evidence there he has also been
given the right to apply to the court for issuance of process for compelling the
attendance of any witness for the purpose of examination, cross-examination or the
production of any document or other thing for which the court has to pass a reasoned
order. The accused has the right to receive all documents and statements as well as to
move an application for production of any record or witness in support of his case. The
concept of fair disclosure would take in its ambit furnishing of a document which the
prosecution relies upon whether filed in court or not. Even in the cases where during
investigation a document is bona fide obtained by the investigating agency and in the
opinion of the Prosecutor is relevant and would help in arriving at the truth, that
document should be disclosed to the accused. The right of the accused with regard to
disclosure of documents is a limited right but is codified and is the very foundation of a
fair investigation and trial. On such matters, the accused cannot claim an indefeasible
legal right to claim every document of the police file. In that case, the Apex Court found

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that no prejudice had been caused to the right of the accused to fair trial and nonfurnishing of the copy of one of the ballistic reports had not hampered the ends of
justice.
296. Ext.P198 is the report of PW147 showing the result of comparison of
the chance prints developed from the Nano car KL-58G-3238 with the finger print slips
of the accused. There is no evidence that the Nano car KL-58G-3238 was used by any
of the accused for commission of any offence alleged against them in the case.
Therefore, Ext.P198 report has no relevancy in the case.
Circumstantial Evidence Against Accused 1 to 7
297.

The evidence of Rajeevan (PW15) shows that on the night of

02.05.2012, he had occasion to see the accused Manoj Kumar (A2) and Muhammed
Shafi (A5) and the Innova car KL-58D-8144 near the industrial estate at the place Koroth
Road. He has stated that on that day, after his work, he had gone to watch a local
football match. After the match, he saw one Ravi and talked with him for some time.
Thereafter, at about 21.00 hours , while he was proceeding through the industrial estate
road, he saw the Innova car KL-58D-8144 parked on the eastern side of the road. He
saw four persons standing near the car. He had acquaintance with two of them,
Rameesh (A28) and Dipin (A29). PW15 identified in the court the accused Rameesh
(A28) and Dipin (A29). PW15 has stated that he saw them putting into the car a sack
bundle. There was bright moon light at that time. He had seen the other two persons
subsequently at the office of the Dy.S.P, Vatakara. PW15 identified in the court the
accused Manoj Kumar (A2) and Muhammed Shafi (A5) as the two other persons who
were seen by him as standing near the Innova car KL-58D-8144. PW15 also identified

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the Innova car KL-58D-8144 parked in the compound of the court as the car seen by
him on that day.
298. PW15 has admitted that he is a follower of R.M.P. It is not a sufficient
ground to disbelieve his testimony. His presence at the place and time stated by him
cannot be doubted. There is also no reason to find that there was no moon light then.
Identification of the accused Manoj Kumar (A2) and Muhammed Shafi (A5) as the
persons seen by him and standing near the Innova car KL-58D-8144 can be accepted
as reliable and trustworthy. PW15 has admitted that he had seen the accused Manoj
Kumar (A2) and Muhammed Shafi (A5) in television channels and it was then he came
to know their names. There is nothing unusual about it. The investigating officer had
recorded the statement of PW15 at first on 12.05.2012 and thereafter on 24.06.2012
when he identified the accused Manoj Kumar (A2) and Muhammed Shafi (A5) at the
S.I.T. Camp Office. PW15 had occasion to see Rameesh (A28) and Dipin (A29), two
persons known to him, in the company of two unknown persons, in suspicious
circumstances.The odd nature of the meeting would certainly have impressed his mind.
Subsequently, during the next week, when he saw news in the television channels and
the news papers about the Innova car and later about the arrest of Manoj Kumar (A2)
and Muhammed Shafi (A5), it would have rekindled his memory of meeting with the
accused which took place earlier.
299. The evidence of Subodh (PW17) proves use of the

Innova car

KL-58D-8144 by the accused T.K.Rajeesh (A4) and Sijith (A6) on the date of the murder.
PW17 has stated that on 04.05.2012, at about 21.00 hours, when he was returning from
a shop near Mahe railway station alongwith with his friend Sreejesh Kumar (CW37) and

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when he reached the road near the old age home at Koroth, he saw an Innova car
parked there and six or seven persons standing around the car. Dilshad (A20) and
Fasalu (A21), persons previously known to him, were among them. He saw them talking
to the other persons and three or four persons taking things like swords into the car.
Among the strangers seen by him there, one was a fat and bald-headed person and
another was a fat person having dark complexion. PW17 has stated that he saw the
persons in the moon light and also in the light of the motor cycle on which he and
Sreejesh Kumar (CW37) were travelling. PW17 identified in the court T.K.Rajeesh (A4)
and Sijith (A6) as the aforesaid persons. He also identified in the court Dilshad (A20)
and Fasalu (A21). PW17 has stated that there was something written in Arabic language
on the front and the rear glasses of the Innova car seen by him there. He later identified
the aforesaid car at the Edachery police station. PW17 also identified the Innova car
KL-58D-8144 parked in the compound of the court.
300. An attempt was made by the defence in the cross examination of PW17
to show that he is an R.M.P worker or follower but without any success. There is
absolutely nothing to suggest against the acceptability of the evidence of this witness.
He has no motive to depose against the accused.There is no sufficient ground to discard
the testimony of PW17 that on 04.05.2012, at about 21.00 hours, he saw T.K.Rajeesh
(A4) and Sijith (A6) with the Innova car KL-58D-8144.
301. PW18 Santhosh is the other witness examined by the prosecution to
prove the connection between the assailants and the Innova car KL-58D-8144. He has
deposed that on 04.05.2012, at 16.00 hours, alongwith his friend Rameshan(CW35), he
reached the taxi stand in Chokli in a jeep which was driven by Rajeevan. They parked

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the jeep near the taxi stand and waited for the arrival of a marriage broker. They were
going to Kaviyoor in connection with a marriage proposal for Rameshan(CW35). PW18
has deposed that about seven persons then alighted from an Innova car in front of the
jeep and stood near the jeep. Out of them, Sunil Kumar @ Kodi Suni (A3), Muhammed
Shafi (A6) and Pradeepan (A31) were persons known to him for two or three years.
PW18 was sitting in the front seat of the jeep and Rameshan(CW35) was sitting in the
back seat. Kodi Suni (A3) and Muhammed Shafi (A6) asked them what was their
purpose. PW18 has deposed that Muhammed Shafi (A6) pulled his shirt and threw away
his mobile phone. Kodi Suni (A3) and others inspected the rear portion of the jeep. Kodi
Suni (A3) and Muhammed Shafi (A6) asked them whether they were persons from
Poyiloor and wanted them to leave the place immediately. Thereafter they left the place
in the Innova car. The number of the Innova car was KL-58D-8144. PW18 knew that
Kodi Suni (A3) and Muhammed Shafi (A6) were accused in many murder cases and
other cases. Therefore, apprehending that there would be some problem, PW18 went to
the office of Panoor Circle Inspector and gave Ext.P17 complaint. The Circle Inspector
was not in the office. PW18 identified in the court Sunil Kumar @ Kodi Suni (A3),
Muhammed Shafi (A6) and Pradeepan (A31). He also identified the accused Anoop
(A1) as one of the persons who had threatened him on the evening of 04.05.2012. He
would say that he could not identify the other persons. PW18 also identified the Innova
car KL-58D-8144 parked in the compound of the court.
302. Admittedly, PW18 is a local leader of R.S.S. He has stated that he has
got no personal enmity towards any C.P.I (M) activist but there is political enmity. PW18
also admiied that he considers Kodi Suni (A3) and Muhammed Shafi (A6) as goondas of

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C.P.I (M).

303. Political animosity entertained by PW18 towards some of the accused in


the case is not a sufficient reason to distrust his testimony. He had given Ext.P17
complaint regarding the incident that took place in the Chokli taxi stand on 04.05.2012
itself. The evidence of PW149, Panoor Circle Inspector shows that he had forwarded
Ext.P17 complaint to the Chokli police station. Ext.P208 petition register of Chokli police
station shows that Ext.P17 complaint had been entered in it. There is no basis for the
contention of the defence that it is a complaint created subsequently.The recitals in
Ext.P17 complaint substantially corroborate the testimony of PW18 regarding the
incident that took place in the Chokli taxi stand on 04.05.2012.In such circumstances,
the fact that PW18 was an accused in four criminal cases is also not a sufficient ground
to discard his testimony as unreliable. Criminal antecedents of a witness, for that reason
alone, do not render him unworthy of credit. In this case it is also to be noted that the
criminal cases against PW18 were on account of his involvement as member of a
particular political faction. The evidence of PW18 proves that on 04.05.2012, at about
16.00 hours, Kodi Suni (A3) and Muhammed Shafi (A6) were found in Chokli taxi stand
in the Innova car KL-58D-8144.
304. Pramod (PW22) is a carpenter by profession. He has stated that on
26.04.2012 he was doing work in the furniture shop of one Asokan near A.K.G.Centre at
the place Nadapuram Road. He was in that shop from 09.00 hours to 17.00 hours.
PW22 has stated that at about 16.00 hours on that day, he saw N.M.Sanoop (A22), a
person known to him for about ten years, getting out of an Innova car. A bald headed

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person of dark complexion was sitting in the front seat of the car. After Sanoop (A22)
got down from the car, it was driven away. PW22 identified in the court T.K.Rajeesh (A4)
as the person seen by him in the front seat of the car. He also identified Sanoop ( A22)
in the court.PW22 also identified the Innova car KL-58D-8144 parked in the compound
of the court as the car in which Sanoop ( A22) came.
305. PW22 has admitted that he is an R.M.P worker. He has stated that it
was when he read about the arrest of Sanoop (A22) in the news paper that he
remembered that he had seen Sanoop (A22) coming in an Innova car. He would also
say that he had seen the photo of the Innova car in the television channels. Yet, he
gave statement to the police only on 13.07.2012. Even when he saw the photo of the
Innova car in the television channels he did not think it proper or necessary to inform
the police about seeing that car on 26.04.2012. He would say that it was on account of
fear that did not go to the police station. His explanation regarding the delay in giving
statement to the police is not convincing. It appears that he is a staunch supporter and
worker of R.M.P. He was the eighth accused in the case registered by the police alleging
that R.M.P workers had made attempt to murder P.Mohanan Master (A14). He is also
accused in the case registered by the police alleging that he had attacked Sanoop (A22)
with deadly weapons. There is also case registered against Sanoop (A22) in which
PW22 is the defacto complainant. In these circumstances, it is not safe to place implicit
reliance upon the testimony of PW22, not for the mere reason that he is a partisan
witness, but also for the reason that he has got every reason to swear against the
accused on account of acute animosity.
306. Radhakrishnan (PW35) is conducting a book stall at K.S.E.B road in

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Orkatteri Town. He had started the book stall on 14.05.2012. He had decided to start the
book stall on 07.05.2012 but the inauguration had to be postponed. PW35 has stated
that from 02.05.2012 onwards he had started arranging articles in the shop. PW35
would say that on 04.05.2012 from 18.00 hours to 22.00 hours he was in his shop. He
has deposed that on 04.05.2012, at about 21.15 hours, he was bringing books to his
shop from Akshara Books near the jeep stand. Then he saw the Innova car bearing the
number KL-18A-5964 parked in the jeep stand. The colour of the car looked like light
silver colour. There were five or six persons inside the car. PW35 has stated that he
saw two persons getting out of the car and talking. One of them was a person of short
stature and dark complexion. The other was a tall and lean person. He saw them in
street light. PW35 has stated that on 14.06.2012, at the S.I.T camp, he identified the
aforesaid persons and then he came to know their names from the police.

PW35

identified in the court Muhammed Shafi (A5) and Manoj Kumar (A2) as the aforesaid two
persons. He also identified the Innova car KL-58D-8144 parked in the compound of the
court as the car he had seen on the night of 04.05.2012.
307. PW35 has admitted that he was the Secretary of the Eramala Local
Committee of R.M.P. He was earlier a member of the C.P.I(M) but he left that party.
308. PW35 has stated on cross examination that his house is at a distance of
three kilometres from Orkatteri. He has stated that on the night of 04.05.2012 he had
returned to his house on the motor cycle of his friend by name Rajan. He would say that
the number that motor cycle is KL-18E-1414. Subsequently he would say that it is a
scooter. A specific suggestion was made to him in the cross examination that the vehicle
having the registration number KL-18E-1414 is not a scooter but it is an Innova car.

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PW35 did not deny this suggestion but he would only say he does not know about it.
Ext.D27 is the copy of the registration particulars of the vehicle having the number
KL-18E-1414. Ext.D27 shows that it is an Innova car. This is a circumstance sufficient to
impeach the creditworthiness of PW35.
309. PW35 has stated that he saw the car and the two persons who got out of
the car in the street light. His evidence is that he saw them at 21.15 hours. A specific
suggestion was made to him in the cross examination that there was load shedding in
Orkatteri area from 21.00 hours to 21.30 hours. PW35 did not deny this suggestion but
he would only say that he does not know about it. He has no case that he saw the car
and the two persons in moon light.DW7 is the Assistant Executive Engineer of K.S.E.B
220 KV Sub Station, Orkatteri. Ext.D59 is the copy of pages 200 to 207 of the Operators
Diary kept in his office. The evidence of DW7 alongwith the entries in Ext.D59 shows
that on 04.05.2012 there was load shedding in the town feeder of Orkatteri from 21.00
hours to 21.30 hours. DW10 is the Assistant Engineer of K.S.E.B Electrical Section,
Orkatteri. His evidence shows that Orkatteri jeep stand is a place coming under the town
feeder of Orkatteri. Therefore, the evidence of PW35 that on 04.05.2012 at 21.15 hours
he saw the car and the two persons at the jeep stand in Orkatteri in the street light
cannot be believed.
310. PW35 has stated that the photograph of the Innova car had been shown
in the television channels and the news papers from 05.05.2012 onwards. Still, it was on
14.05.2012 that he gave statement to the police. The investigating officer did not show
him the car and got it identified by him. But, he voluntarily went to Edacherry police
station and saw the car.

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311. In the aforesaid circumstances, it is not safe to rely upon the testimony
of PW35 that he saw the Innova car and the accused Muhammed Shafi (A5) and
Manoj Kumar (A2) at the jeep stand in Orkatteri Town at 21.15 hours on 04.05.2012.
312.

Dy.S.P Santhosh (PW166) has stated that on 28.05.2012 at 15.30

hours, he conducted search of house no.14/12 of Mahe Municipality and seized MO85
washing machine as per Ext.P41 search list. PW46 Anoop is a witness to the search.
He admitted his signature in Ext.P41 search list. But he would say that when he signed
it, it was blank. The house searched by PW166 allegedly belonged to Manoj Kumar
(A2). PW46 would admit that he saw police vehicle being stopped near the reading
room at the place Panthakkal. Though PW46 has turned hostile to the prosecution there
is no sufficient ground to disbelieve the evidence of PW166 that he conducted search of
the aforesaid house and seized MO85 washing machine as per Ext.P41 search list.
313. Scientific Assistant Ajeesh Thekadavan (PW148) has given evidence
that he had inspected the washing machine forwarded from the Court of the Judicial
First Class Magistrate, Vatakara in the laboratory. PW148 identified MO85 washing
machine in the court. As per Ext.P205 report given by PW148, MO85 washing machine
contained blood but it was insufficient to determine the origin and group.
314. Even assuming that the blood found on MO85 washing machine was
human blood, it is not sufficient to find that the blood-stained clothes of any assailant
were washed in that machine.
315. Sheeja (PW49) is working as a nurse in the Chokli Medical Centre. She
has stated that on 04.05.2012 she was on duty in that hospital. She has deposed that
on 04.05.2012, at 23.30 hours, a person who had sustained injury on his hand was

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brought to the hospital. PW49 has deposed that the doctor dressed the injury. Injection
was also given to the patient. PW49 has stated that the injured and the person brought
him left the hospital without paying the bill. PW49 has also deposed that subsequently
she saw the aforesaid person who had sustained injury on the hand at the office of the
Dy.S.P, Vatakara. The police then told her that the name of the aforesaid person was
Sijith. But, PW49 failed to identify the accused Sijith (A6) in the court.
316. Simi (PW51) is working as Pharmacist in the Chokli Medical Centre.
She has stated that she was on duty in the hospital on 04.05.2012. She has stated that
it was her duty to give medicines from the pharmacy and to prepare the bill. She
identified Ext.P42 bill and stated that it was prepared by her. It is a bill generated at
23.32 hours on 04.05.2012. PW51 has also deposed that the name shown in Ext.P42
bill is the name told by the person who came to buy the medicine.
317. Captain Kunhikannan (PW50) is the General Manager of Chokli Medical
Centre.

He has no direct knowledge regarding the incident that took place in the

hospital on the night of 04.05.2012. He has given evidence that he produced Ext.P42
bill before the police.
318. It is true that PW49 did not identify Sijith (A6) in the court as the person
who came to the hospital with injury on the hand. But her evidence shows that she had
seen that person at the office of the Dy.S.P, Vatakara and then the police told her that
the name of that person was Sijith. There is no sufficient reason to disbelieve her
evidence in that regard. Evidence regarding subsequent events would confirm that it
was Sijith (A6) who availed treatment from the Chokli Medical Centre at 23.30 hours on
04.05.2012.
319.

Dy.S.P Santhosh (PW166) has stated that on 22.05.2012, at 17.00

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hours, he arrested Sijith (A6) at the office of the Dy.S.P, Vatakara. Ext.P458 is the arrest
memo and Ext.P459 is the inspection memo prepared at that time. PW166 has also
given evidence that after medical examination, Sijith (A6) was produced before the
committal court and that the court remanded him to police custody from 16.20 hours on
23.05.2012 till 11.00 hours on 06.06.2012.
320. Dr. Shalina Padman (PW107) has given evidence that on 23.05.2012 at
14.15 hours, she had examined Sijith (A6). PW107 has stated that on his examination,
she found a healing wound on the right hand near the base of thumb. There were
markings of four sutures and two of them had been removed by the patient himself.
PW107 has opined that the age of the aforesaid wound was more than five days.
PW107 has stated on cross examination her opinion in that regard was made by her on
visual examination of the wound.
321.

Dy.S.P Santhosh (PW166) has given evidence that Sijith (A6) was

produced in the Medical College, Kozhikode for ascertaining the age of the wound on
his right hand. Dr. Cyriac Job (PW105) has stated that on 01.06.2012 at 15.05 hours,
he had examined Sijith (A6) as per the requisition received from the Dy.S.P (PW166).
PW105 has stated that he found the following injuries on the body of Sijith (A6): (1) A
healing wound, without any scab on the thenar eminence of right palm, V shaped, with
the angle facing inwards and the distance between the ends of the limbs 2cm. The
lower outer end 9cm above tip of thumb in line with outer margin of nail bed. The upper
limb was 1.3cmx0.7cm with swollen end of 0.8 x 0.8cm. The lower limb was 1.7x0.7cm.
The scar was reddish with thickening for a width of 1cm. Marks of four sutures seen.
(2) Healing superficial incised wound 1x0.2cm, oblique on the thenar eminence of right
palm 2.7cm inner to the lower end of injury no.1 and the upper end of this injury was

147

2cm inner to the injury no.1. This injury was of the same age.

322. More important is the history and cause of the injuries sustained by
Sijith (A6). It is mentioned in Ext.P107 wound certificate that the history and cause of the
injury as stated by the subject is Happened on May 4, by the impact of the sword of
another person, while entering into the vehicle. PW105 has stated that the cause of the
injury was stated to him by Sijith (A6).
323. There is no sufficient ground to disbelieve the evidence of the doctor
(PW105) that it was Sijith (A6) who told him the cause of the injury. PW105 denied the
suggestion made to him that the cause of the injury noted in the wound certificate is
based on the contents of the requisition given by the Dy.S.P. PW105 has stated that he
has recorded the history of the injury in the words of the person examined by him.
324. There is nothing to suspect that information regarding the cause of the
injury mentioned in Ext.P107 wound certificate was collected by the doctor from the
police. If fabrication had to be done, it could have been done perfectly. It could have
been stated in the wound certificate that the accused told the doctor that he sustained
the injury while chopping the victim. That has not been done. The cause of the injury
stated in Ext.P107 certificate by itself has a ring of truth.
325. It is stated in Ext.P107 wound certificate that the injuries found on the
body of Sijith (A6) could be caused as alleged (in the manner and date of infliction).
There is no reason why the evidence of the doctor in this behalf cannot be accepted,
though the accused denied it.
326. It is stated in Ext.P107 certificate that written informed consent was
obtained for the examination of the accused. PW105 has stated that it would be in the

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original file kept in the Department of Forensic Medicine.


327. Learned counsel for the accused contended that the accused was sent
to the doctor by PW166, the investigating officer, while the accused was in police
custody and when the doctor examined the accused, he was in police custody and
therefore the statement given by the accused to the doctor is

inadmissible under

section 26 of the Evidence Act.


328. Section 17 of the Evidence Act defines "admission" as a statement, oral
or documentary, which suggests any inference as to any fact in issue or relevant fact,
and which is made by any of the persons, and under the circumstances mentioned
"hereinafter". Section 21 states that admissions are relevant and may be proved as
against the person who makes them, or his representative-in-interest. Therefore,
statement made by the accused to the doctor containing admission regarding the cause
of injuries sustained by him is admissible under that section.
329. Sections 24 to 26 of the Evidence Act render confessions inadmissible.
Confession caused by inducement, threat or promise is irrelevant. Section 26 states
that no confession made by any person while he is in the custody of a police officer,
unless it be made in the immediate presence of a Magistrate, shall be proved as against
such person. If the statement made by the accused Sijith (A6) to the doctor is regarded
as confession and if it was made by the accused while in the custody of police officer,
section 26 of the Evidence Act would be attracted.
330. But the question is whether the statement made by the accused Sijith
(A6) constitutes confession. Confession is not defined in the Indian Evidence Act. Every

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admission is not a confession. The Privy Council in Narayana Swami Vs Emperor : A.I.R
1939 PC 47 : 1939 (40) Cri LJ 364 explained that a confession must either admit in
terms the offence, or at any rate substantially all the facts which constitute the offence.
An admission of a gravely incriminating fact, even a conclusively incriminating fact, is
not a confession. This view has been followed consistently by the Hon'ble Supreme
Court. (See Palvinder Kaur Vs State of Punjab : A.I.R 1952 SC 354 and A. Negesia Vs
State of Bihar : A.I.R 1966 SC 199) .
331. In Kanda Padayachi Vs State of Tamil Nadu : A.I.R 1972 SC 66, the
accused had injuries and while in police custody he told the doctor that the injuries were
caused by the deceased. The admissibility of this statement was challenged but the
Hon'ble Supreme Court held that it was properly admissible in evidence and should be
relied upon as an admission under Section 21 of the Evidence Act and it cannot be
excluded under Section 26 of the Evidence Act. It was held that the statement made by
the accused to the doctor did not amount to confession. If a statement falls short of such
a plenary acknowledgment of guilt, it would not be a confession even though the
statement is of some incriminating fact which taken along with other evidence tends to
prove the guilt of the accused, such a statement is only an admission but not a
confession.
332. The principle stated in the aforesaid decision of the Apex Court was
followed by the Full Bench of the Hon'ble High Court in

State of Kerala Vs Ammini :

1987 (1) KLT 928. It was approved by the Apex Court in Ammini Vs State of Kerala :
A.I.R 1998 SC 260.
333. In M.A.Antony Vs State of Kerala : (2009) 6 SCC 220, it has been held

150

as follows:

PW-60-Dr. Anila Kumari has supported the case of extra judicial

confession

(Ext. P-48) which records the history of injury and also records the said confession. The
statement made by the independent witness Dr. Anila Kumari has been accepted by
both the courts below. In her examination-in-chief, she has stated that, "I had examined
Antony as per the request of Dy.S.P. of Aluva. There is no material to show that the said
Dy.S.P. (PW-59) was present at the time when the statement was recorded.
Dy.S.P.(PW59) does not state that he had accompanied the accused to Doctor's house.
Secondly, there is no material on record nor is there any suggestion made to PW-60 that
when she had recorded the said confessional statement, any police person was present
with the accused-appellant. Thus, the criticism of the defence that the said statement is
not fit to be accepted as it has been recorded in the presence of the police officers is
without any material on record.
334. In the present case, PW105 doctor has deposed that at the time of
examination, the accused Sijith (A6) was alone with him and the policemen were outside
the closed door. Even otherwise, the statement made by the accused Sijith (A6) to the
doctor amounts to only an admission and not confession and section 26 of the Evidence
Act is not attracted. The admission made by the accused Sijith (A6) is an incriminating
fact which taken along with other evidence tends to prove his guilt .
335. Dr. Shalina Padman (PW107) had collected samples of blood, scalp hair,
body hair and pubic hair from the accused Sijith on 23.05.2012. This is mentioned in
Ext.P112 certificate issued by her. Her evidence shows that she had handed over the
samples to the police officer who brought the accused to her. Sub Inspector

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Premachandran (PW112) has deposed that on 23.05.2012, he had taken Sijith (A6) for
medical examination.

He has stated that Dr. Shalina Padman (PW107) collected

samples of blood and hair from the accused and entrusted with him sealed packets
containing the samples. He would say that he entrusted the sample packets with Dy.S.P
Santhosh (PW166).
336. It is seen from the letter dated 01.06.2012 sent from the Forensic
Science Laboratory, Thiruvananthapuram to the Judicial First Class Magistrate, Vatakara
that though the sealed packets containing samples of blood and hair collected from Sijith
(A6) were forwarded to the Forensic Science Laboratory, they were not incorporated in
the forwarding note and the nature of examination required was not mentioned. These
two items were returned to the investigating officer through C.P.O 8019 as per Ext.P487
letter. These two items produced by C.P.O 8019 were seized by Dy.S.P Santhosh as
per Ext.P168 mahazar. These two sealed packets containing samples of blood and
hairs of Sijith (A6) were produced in the committal court on 14.06.2012 as per Ext.P488
list. They were forwarded to the Forensic Science Laboratory, Thiruvananthapuram as
per Ext.P489 forwarding note.
337.

As noticed earlier, on 05.05.2012, Scientific Assistant Ajeesh

Thekadavan (PW148) had collected blood stains from the back cover of the middle seat
of the Innova car found abandoned at the place Punathilmukku. He had produced the
sealed packet containing the blood before Dy.S.P Jossy Cherian (PW165). The Dy.S.P
(PW165) had seized the sealed packet as per Ext.P382 mahazar on 05.05.2012 itself. It
was produced before the Magistrate on 07.05.2012 as per Ext.P390 property list. It was
forwarded to the Forensic Science Laboratory, Thiruvananthapuram as per Ext.P395

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forwarding note (Item no.7 in the forwarding note).


338. Ext.P571 report of DNA analysis signed by Sri. R. Sreekumar, Joint
Director, Forensic Science Laboratory shows that the blood stain collected from the
Innova car (shown as item no.11 in page 13 of the report) is a mixture of the blood
belonging to the deceased T.P. Chandrasekharan and Sijith (A6). This is a clinching
piece of scientific evidence indicating the involvement of Sijith (A6) in the murder of the
deceased.
339.

DNA evidence is a predominant forensic technique for identifying

criminals when biological tissues are left at the scene of the crime. DNA testing on
samples such as saliva, skin, blood, hair or semen not only helps to convict but also
serves to exonerate. The sophisticated technology makes it possible to obtain
conclusive results. (Thogorani Vs State of Orissa : 2004 Cri.L.J 4003). DNA which is
found in the chromosomes of the cells of living beings is the blueprint of an individual.
Identification on the basis of DNA is hundred percent precise. If the DNA fingerprint of a
person matches with that of a sample, it means that the sample has come from that
person only. The probability of two persons except identical twins having the same DNA
fingerprint is practically zero.
340. Thus, the prosecution has also established certain circumstances
indicating the involvement of accused 1 to 7 in committing the murder of the deceased.
Admissibility of F.S.L Reports
341. Ext.P571 report of D.N.A analysis is signed by Dr.R.Sreekumar, Joint
Director who was in charge of Assistant Director (DNA) , Forensic Science Laboratory,

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Thiruvanathapuram. Ext.P572 report of hair analysis is signed by Dr.R. Vinod Kumar,


Assistant Director (Biology), Forensic Science Laboratory, Thiruvanathapuram. Ext.P573
report regarding paint flakes and paper pieces is signed by B.Arya, Scientific Assistant
(Physics) who was in charge of Assistant

Directior (Physics),

Forensic Science

Laboratory, Thiruvanathapuram. Ext.P574 report of blood analysis is signed by


K.V.Sreevidya,

Scientific

Assistant

(Biology),

Forensic

Science

Laboratory,

Thiruvanathapuram. Ext.P575 report of chemical analysis of rubber mats is signed by


T. Abdul Rasak, Scientific Assistant (Chemistry), Forensic Science Laboratory,
Thiruvanathapuram.
342.

Exts.P572 and P573 reports signed by Assistant Directors

of the

Forensic Science Laboratory, Thiruvanathapuram are certainly admissible under section


293 Cr.P.C without formal proof by the evidence of those experts who have issued them.
Though Ext.P573 report is signed by a Scientific Assistant, she was holding the charge
of Assistant Director and the report signed by her is admissible under section 293
Crl.P.C. Section 293(1) Crl.P.C provides that any document purporting to be a report
under the hand of a Government scientific expert to whom that section applies, upon
any matter or thing duly submitted to him for examination or analysis and report in the
course of any proceeding under the Code, may be used as evidence in any inquiry, trial
or other proceeding under the Code. Sub section (4) of Section 293 Crl.P.C enumerates
certain categories of experts to whom sub section (1) applies. An Assistant Director of
the State Forensic Science laboratory is an expert who comes under Sub section (4) of
Section 293 Crl.P.C.
343. Ext.P571 report of D.N.A analysis is signed by a Joint Director and he

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was also in charge of Assistant Director (DNA) of the Forensic Science Laboratory,
Thiruvanathapuram.

Though Joint Director is not one of the experts mentioned in

section 293(4) Crl.P.C, the report signed by him is admissible without formal proof.

In

Ammini Vs State of Kerala : A.I.R 1998 SC 260, it has been held as follows:
''On true construction of Section 293 (4) Cr. P.C. it has to be held that Joint
Director is comprehended by the expression 'Director'. The amendment made in clause
(e) of Section 293 (4) now indicates that clearly. If the Joint Director was not
comprehended within the expression Director then the Legislature would have certainly
named him while amending the clause and providing that Section 293 applies to the
Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a
State Forensic Science Laboratory. A Joint Director is a higher officer than a Deputy
Director or an Assistant Director and, therefore, it would be unreasonable to hold that a
report signed by Joint Director is not admissible in evidence though a report signed by
Deputy Director or Assistant Director is now admissible. In our opinion the High Court
was right in holding that the report made by the Joint Director was admissible in
evidence and that it deserved to be relied upon.''.
344. Now, the admissibility of the reports signed by the Scientific Assistants of
the F.S.L can be considered. It is true that Scientific Assistant is not an expert who
comes within the various categories of experts enumerated under section 293 (4)
Crl.P.C. However, in view of the decision of the Honble Supreme Court in State of
Himachal Pradesh Vs Mast Ram : A.I.R 2004 SC 5056, it can be found that the report of
government scientific experts other than those mentioned in Section 293(4) Crl.P.C can
be used as evidence without examining the person who signed it. It was a case in which

155

the report of ballistic expert was signed by one junior scientific officer. The High Court in
that case held that a junior scientific officer (Ballistic) is not an officer enumerated under
sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the
absence of his examination such report cannot be read in evidence. The aforesaid
reasoning of the High Court was commented upon by the Apex Court as follows:

This reason of the High Court, in our view, is also fallacious. Firstly, the Forensic
Science Laboratory Report (Ex. P-X) has been submitted under the signatures of a
junior scientific officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh.
There is no dispute that the report was submitted under the hand of a Government
scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins that any
document purporting to be a report under the hand of a Government scientific expert
under the section, upon any matter or thing duly submitted to him for examination or
analysis and report in the course of any proceeding under the Code, may be used as
evidence in any inquiry, trial or other proceeding under the Code. The High Court has
completely over-looked the provision of sub-section (1) of Section 293 and arrived at a
fallacious conclusion that a junior scientific officer is not an officer enumerated under
sub-section (4) of Section 293. What sub-section (4) of Section 293 envisages is that the
court to accept the documents issued by any of six officers enumerated therein as valid
evidence without examining the author of the documents.
The aforesaid decision of the Apex Court was followed by the Honble High Court
in Geetha Vs State of Kerala: 2005 (2) KLT 407. It was contended in that case that the
expert who issued the DNA Finger Printing Report is not the one enumerated under subsection (4) of Section 293 of Cr.P.C. and hence report of DNA finger printing issued

156

cannot be admitted in evidence under Section 293 Cr.P.C without examining the expert.
The Honble High Court held that on a plain reading of Section 293 Cr.P.C. it will appear
that only a report of such government scientific experts who are enumerated in subsection (4) can be used as evidence without examining the expert but in view of the
decision of the Apex Court in Mast Ram`s case the report of DNA finger printing cannot
be rejected on the sole ground that the government scientific expert who issued the
same is not enumerated under sub-section (4) Section 293 of Cr.P.C. and on the other
hand, it has to be admitted in evidence under sub-section (1) of Section 293 as a report
which is issued under the hand of a government scientific expert. The Honble High
Court also repelled the contention that the Apex Court omitted to take note of the fact
that sub-section (1) of Section 293 will apply only to such experts who are enumerated
under Section 293(4) Crl.P.C. stating that it is the mandate of the Constitution as
provided in Article 141 that the law declared by the Supreme Court shall be binding on
all courts within the territory of India.
345. In the light of the decisions referred to above, it can be found that
Exts.P574 and P575 reports issued under the hand of Scientific Assistants of the
Government Forensic Science Laboratory, who are government scientific experts, are
admissible in evidence without examining them.
346. Moreover, Exts.P574 and P575 reports were marked through PW166,
the investigating officer without any objection from the defence. The court has also
recorded that the defence had no objection to mark these reports. It is also to be noted
that if any clarification was required on these reports, the defence could have taken
steps to examine the persons who have issed them but no such step was taken. The

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provisions of section 293 Crl.P.C are intended to save time and avoid needless
examination of government scientific experts mentioned therein, unless, of course, the
court finds it necessary to examine the expert or when the accused request for
examination of the expert. It is further to be noted that section 294 Crl.P.C postulates
that if any document is filed either on behalf of the prosecution or the accused, it shall be
considered as evidence without insisting upon the proof of the signature of the person,
provided the genuineness of such document is not disputed. Section 294 Crl.P.C has
been introduced for the purpose of accelerating the pace of criminal trial by dispensing
with the formal proof of certain documents. Sections 293 and 294 Crl.P.C are obviously
intended to slim the proceedings by dispensing with elaborate and sometimes long
drawn procedure of examining the concerned person when the genuineness of
document is not in dispute. In the instant case, there was no objection from the defence
to the admission of Exts.P574 and P575 reports in evidence.
347. In Phool Kumar Vs Delhi Administration : A.I.R 1975 SC 905, it has
been held as follows:

The clinching evidence against the appellant was his thumb impression on the
kunda of the cash box. It was conclusively proved to be his on the opinion of the expert.
The report of the expert was used as evidence by the prosecution without examining
him in court. Neither the court thought it fit nor the prosecution or the accused filed any
application to summon and examine the expert as to the subject matter of his report.
The court was bound to summon the expert if the accused would have filed any such
application for his examination. That not having been done the grievance of the
appellant apropos the report of the expert being used without his examination in court

158

made in the High Court and repeated in this Court had no substance.
348. In Dalwadi Govindbhai Amarshibhai Vs State of Gujarat : 2004 Cri.L.J
2767, it has been held as follows:

The

record does not show that any request was made by the defence to

summon expert of Forensic Science Laboratory to prove the contents of report. No


challenge to report was made when it was produced on record during the examination of
Investigating Officer, Mr. Mer. Therefore, the argument that xerox copy of report of
Forensic Science Laboratory could not have been relied upon has no substance, and is
hereby rejected.
349. The dictum laid down in the aforesaid decisions squarely applies to the
admission of the reports of the Forensic Science Laboratory in the present case.
Arrest of Accused 1 to 7
350.

Dy.S.P Shoukathali (PW164) has given evidence that the accused

Manoj Kumar @ Kirmani Manoj (A2), Sunil Kumar @ Kodi Suni (A3) and Muhammed
Shafi (A5) were hiding in the hilly area of Mudakozhi and that he arrested them on the
night of 14.06.2012 from the tent in which they were staying there.
351. Dy.S.P Jossy Cherian (PW165) has given evidence that he arrested the
accused Anoop (A1) at 18.00 hours on 11.06.2012 at his office.

Ext.P414 is the arrest

memo and Ext.P415 is the inspection memo prepared at that time.


352. Dy.S.P Santhosh (PW166) has given evidence that he arrested the
accused Rajeesh (A4) at 17.00 hours on 07.06.2012 at the office of the Dy.S.P,
Vatakara. Ext.P480 is the arrest memo and Ext.P481 is the inspection memo prepared
at that time. PW166 has also stated that he arrested the accused Sijith (A6) at 17.00

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hours on 22.05.2012 at the office of the Dy.S.P, Vatakara. Ext.P458 is the arrest memo
and Ext.P459 is the inspection memo prepared at that time.
353. The accused Shinoj (A7) had surrendered before the committal court on
10.07.2012.
354. When examined under section 313 Cr.P.C and in the statement filed
subsequently, accused 1 to 6 have raised a plea that they had been taken into custody
by the police days before the date of recording arrest and that they were tortured and
beaten-up by the police. When produced before the Magistrate for the first time, none of
these accused had made any complaint regarding torture or ill-treatment by police. The
very fact that they did not make any complaint before the Magistrate of any ill-treatment
by the police or as having been taken into illegal custody is sufficient to find that there is
no basis for their plea.
355. The evidence of the investigating officers that they arrested some of the
aforesaid accused at the office of the Dy.S.P, Vatakara would certainly indicate that they
had been taken into custody at somewhere else and brought to the office of the Dy.S.P,
Vatakara and they were questioned there and their arrest was recorded only
subsequently. But, no evidence collected during such custody is relied upon by the
prosecution. Regarding the complaint of torture and ill-treatment by the police in custody,
there is no evidence adduced by the accused except T.K.Rajeesh (A4).
356. The effect of not making any complaint regarding ill-treatment or torture
before the Magistrate was considered by the Honble Supreme Court in Shakila Abdul
Gafar Khan Vs Vasant Raghunath Dhoble : A.I.R 2003 SC 4567 and it was held as
follows:

160

''There is another vital factor which corrodes complainant' plea. If the condition of
the accused was so severe that he was not able to even stand on 15-10-1983 morning
as claimed, it is not explained as to how the Magistrate who granted bail did not notice
the condition or how even no grievance was made by the deceased before him. There is
a requirement under Section 54 of the Code which deals with a right of an arrested
person to bring to the notice of the Court about torture or assault. The provision provides
for an explanation of an arrested person by medical practitioner at the request of the
arrested person and it is a right conferred on the arrested person. As this Court had
noticed that in many cases the arrested persons are not aware of the right, and on
account of ignorance are unable to exercise that right even though they have been
tortured or mal-treated by the police in lock up, a direction was given in Sheela Barse v.
State of Maharashtra, 1983 (2) SCC 96 to the Magistrates requiring them to inform the
arrested persons about this right in case he has any complaint of any torture or
maltreatment in police custody. This apparently was not done by the deceased and it is
a serious flaw to the complainant version. It is not the case of the complainant that such
a grievance was made and the Magistrate did not take note of it.''
357. As regards the accused Rajeesh (A4), complaints had been made by
him and by his mother subsequently regarding illegal custody and ill-treatment.
However, in the instant case, no judicial confession of this accused has been recorded.
No evidence of recovery of any article made on the basis of any confession given to
police by this accused is also relied upon by the prosecution. Therefore, the complaint
made by the accused Rajeesh (A4) regarding illegal custody and ill-treatment by police

161

need not engage the attention of this court any more. If at all he has got any genuine
complaint in that regard, he may prove it in appropriate legal proceedings against the
erring police officials.
358. The plea of the accused Anoop (A1), Rajeesh (A4) and Shinoj (A7) that
they were shown to the witnesses before the identification parade and that their
photographs had been published in newspapers have already been considered while
discussing the value and utility of the identification parades conducted by the learned
Magistrate (PW159).
Registration of F.I.R
359. The evidence of PW4 Sub Inspector has already been referred to. It is
true that at the time of taking the injured into the police jeep, he did not make any effort
to get the details of the incident from PW1 and CW2. He also did not take any steps to
record their statement at that time. But, PW4 was then anxious to see that the injured
was taken to the hospital immediately to save his life. At that time, PW4 may not have
thought of collecting the details of the incident from PW1 and CW2 or recording their
statement. PW4 has stated on cross examination that when he reached the scene of
the incident he did not make any preliminary inquiry but his attempt was to take the
injured immediately to the hospital.
360. PW4 Sub Inspector had taken the injured to the General Hospital,
Vatakara. Dr. C.K. Anandan (PW137) was the doctor on duty there at that time. He has
given evidence that on 04.05.2012, at 22.51 hours, while he was on duty in the hospital,
the body of a person with severe injuries on head and face was brought by the Sub
Inspector (PW4). PW137 has deposed that he examined the injured and found that he

162

was dead. PW137 suggested to the Sub Inspector that the body may be shifted to the
Medical College Hospital, Kozhikode for postmortem examination. PW137 would say
that he did not ascertain the name of the dead person because he was very tense and
anxious at that time. He issued Ext.P181 certificate and gave Ext.P182 intimation.
361. In Ext.P181 certificate and Ext.P182 intimation, the name of the dead
person is not written. In these documents, in the column for filling up the name, it is
written as 'unknown'. PW137 doctor has deposed that as he was tense and anxious, he
did not ascertain the name of the dead person. On cross examination PW137 would
say that he forgot to ask the Sub Inspector the name of the victim. On the other hand,
PW4 Sub Inspector has repeatedly stated in his testimony that he had told the doctor
that the victim was Chandrasekharan. The explanation given by PW137 for making an
entry in Exts. P181 and P182 documents regarding the name of the victim as 'unknown'
is not at all convincing and satisfactory. However, the fault or mistake committed by the
doctor in this regard cannot cast incredibility on the prosecution case.
362. Inspite of mortuary facility available in the General Hospital, Vatakara
PW137 had suggested the Sub Inspector (PW4) to take the dead body to the Medical
College Hospital, Kozhikode for postmortem examination. There was no irregularity in
this procedure. As per the Kerala Medico-Legal Code approved by the Government of
Kerala (vide G.O (MS) No. 232/11/Home dated 22.10.2011), in all cases of murder and
suspicious deaths, postmortem examination should be conducted by Police Surgeons.
Medical officers working in institutions authorized to undertake postmortem examination
have the right to refer requisition for postmortem examination in such cases to the
nearest Police Surgeon.
363.

The evidence of PW4 Sub Inspector shows that immediately on

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returning to the Vatakara Police Station from the hospital, he registered Ext.P2 F.I.R at
23.20 hours on 04.05.2012. It is seen from Ext.P2 F.I.R that it was received by the
Magistrate at 10.30 hours on 05.05.2012.
364. With regard to the sequence of events, it is recorded in Ext.P2 F.I.R that
it was after hurling the bomb that the assailants hacked the victim. PW4 has stated that
it is a mistake committed by him in recording the sequence of events in the F.I.R. He
has stated that what he had understood was that after attacking the victim, the
assailants hurled bomb to scare away the onlookers. In this connection it is to be noted
that the details of the incident recorded in Ext.P2 F.I.R would have been on the basis of
the information obtained by PW4 from PW1 and CW2 during the very short time of
getting the victim into the police jeep for taking the victim to the hospital. Therefore, the
mistake committed by PW4 in recording the sequence of events in Ext.P2 F.I.R is of not
much consequence.
365.

There is also no illegality or irregularity committed by PW4 for not

registering the F.I.R in the case on the basis of the information received in the police
station that some violent incident had taken place at Vallikkad. Senior C.P.O Asokan
(PW135) was on duty in the police station when information was received over
telephone regarding the incident at Vallikkad. PW135 has deposed that at 22.25 hours
on 04.05.2012 somebody made a phone call to the police station and informed that
some violent incident had taken place at Vallikkad but the informer did not reveal his
name. PW135 has also stated that then the Sub Inspector (PW4) came to the police
station after law and order duty and that he conveyed the information to PW4 and he
(PW4) went to the scene of the incident with police party.

There was no legal

requirement of registration of F.I.R on the basis of such vague information received from

164

an anonymous person.
366. The information about the commission of a cognizable offence given "in
person at the Police Station" and the information about a cognizable offence given "on
telephone" are on different pedestals. The rationale for the said differential treatment to
the two situations is that the information given by any individual on telephone to the
police is not for the purpose of lodging a First Information Report, but rather to request
the police to reach the place of occurrence; whereas the information about the
commission of an offence given in person by a witness or anybody else to the police is
for the purpose of lodging a First Information Report. There is objective difference
between the two situations. A cryptic telephonic message of a cognizable offence cannot
be treated as a First Information Report. Merely because the information given on phone
was prior in time would not mean that the same would be treated as the First Information
Report as understood under the Code of Criminal Procedure. A cryptic message given
on telephone by somebody who does not disclose his identity may not satisfy the
requirement of Section 154 of the Code of Criminal Procedure. (Sidhartha Vashisht Vs
State : A.I.R 2010 SC 2352).
367. In Tapinder Singh Vs State of Punjab : A.I.R 1970 SC 1566, it has
been held as follows:
''The telephone message was received by Hari Singh, A. S. I., Police Station,
City Kotwali at 5.35 p.m on September 8, 1969. The person conveying the information
did not disclose his identity, not did he gave any other particulars and all that is said to
have been conveyed was that firing had taken place at the taxi stand, Ludhiana. This
was, of course, recorded in the daily diary of the police station by the police officer

165

responding to the telephone call. But prima facie this cryptic and anonymous oral
message which did not in terms clearly specify a cognizable offence cannot be treated
as first information report. The mere fact that this information was the first in point of time
does not by itself clothe it with the character of first information report. The question
whether or not a particular document constitutes a first information report has, broadly
speaking, to be determined on the relevant facts and circumstances of each case''.
368. In Damodar Vs State of Rajasthan: A.I.R 2003 SC 4414, it has been
held as follows :
''Any telephonic information about commission of a cognizable offence, if any,
irrespective of the nature and details of such information cannot be treated as first
information report. If the telephonic message is cryptic in nature and the officer in
charge, proceeds to the place of occurrence on the basis of that information to find out
the details of the nature of the offence if any, then it cannot be said that the information
which had been received by him on telephone shall be deemed to be a FIR. The object
and purpose of giving such telephonic message is not to lodge the first information
report but to make the officer in charge of the police station to reach the place of
occurrence. On the other hand, if the information given on telephone is not cryptic and
on the basis of that information the officer in charge is prima facie satisfied about the
commission of a cognizable offence and he proceeds from the police station after
recording such information to investigate such offence then any statement made by any
person in respect of the said offence including about the participants shall be deemed to
be a statement made by a person to the police officer in the course of investigation
covered by Section 162 of the Code.''

166

369. In the present case, the information received over telephone in the
police station was only that some violent incident had taken place at Vallikad. The
identity of the informer was not revealed .There was no information regarding any
cognizable offence. Evidently, the purpose of the information was not to lodge any first
information report but to alert the police to reach the scene of the incident without delay.
Inquest

Proceedings

370. The inquest in the case was conducted by Circle Inspector P. Bijuraj
(PW154).

He has deposed that as per the direction of the Dy.S.P, Vatakara he

conducted inquest proceedings on 05.05.2012 in the mortuary of the Medical College


Hospital, Kozhikode. Ext.P22 is the inquest report prepared by him.
371. It has been brought out in the evidence of PW154 that at the time of
inquest, Jaffar (CW31) had told that he was the person who last saw the deceased alive
and it was at about 21.00 hours on 04.05.2012. Nothing turns out on this entry in the
inquest report. It only means that among the persons who were present at the time of
inquest Jaffar (CW31) was the last person to see the deceased alive. Jaffar was not
examined by the prosecution. The defence also did not take steps to examine him.
Without examining Jaffar (CW31), whatever thing told by him to the officer who
conducted inquest, does not amount to legal evidence.
372. In Narpal Singh Vs State of Haryana: A.I.R 1977 SC 1066, it has
been held as follows:
''It is true that the statements of these witnesses have been mentioned in

167

the inquest report, but the statements made by them are clearly hit by Section 162 of the
Code of Criminal Procedure and will, therefore, not be admissible in evidence if they
were not examined as witnesses ............... We would, however, like to indicate that it is
not at all necessary in law to incorporate the statements of the witnesses in the inquest
report. The inquest report is to be made by the Investigation Officer just to indicate the
injuries which he has found on the bodies of the deceased persons. It may be witnessed
by one or two persons but it is not at all necessary for the Investigating Officer to record
the statements of the witnesses or to get the statements of witnesses signed on the
inquest report and incorporate the same in it which introduces an element of chaos and
confusion and demanding an explanation from the prosecution regarding the statements
made therein. ''
373. PW154 has admitted on cross examination that he did not enquire about
eye-witnesses at the time of inquest. He also did not try to obtain any information from
the Sub Inspector Manoj (PW4) at the time of the inquest.
374. An investigation under Section 174 Crl.P.C is limited in scope and is
confined to the ascertainment of the apparent cause of death. It is concerned with
discovering whether in a given case the death was accidental, suicidal or homicidal or
caused by animal and in what manner or by what weapon or instrument the injuries on
the body appear to have been inflicted. It is for this limited purpose that persons
acquainted with the facts of the case are summoned and examined at the time of the
inquest report. The details of the overt acts are not necessary to be recorded in the
inquest report. The question regarding the details as to how the deceased was
assaulted or who assaulted him or under what circumstances he was assaulted or who

168

are the witnesses of the assault is foreign to the ambit and scope of proceedings under
Section 174. Neither in practice nor in law it is necessary for the person holding the
inquest to mention all these details. Contention that non-mention of a person's name in
the inquest report would show that he was not an eye- witness does not merit
acceptance. Similarly, the absence of the name of the accused in the inquest report
cannot lead to an inference that he was not present at the time of commission of the
offence as the inquest report is not the statement of a person wherein all the names
(accused and also the eye-witnesses) ought to be mentioned. Testimony of an eyewitness cannot be discarded on the ground that his name does not figure in the inquest
report prepared at the earliest point of time. The fact that the details about the
occurrence are not mentioned in the inquest report does not mean that the investigating
officer was not sure of the facts when the inquest report was prepared. There is
absolutely no requirement in law of mentioning the details of the FIR, names of the
accused or the names of the eye-witnesses or the gist of their statement in the inquest
rreport nor it is required to be signed by any eye-witness. (Podda Narayana Vs State of
A.P. : A.I.R 1975 SC 1252, Shakila Khader Vs Nausher Gama : A.I.R 1975 SC 1324,
Eqbal Baig Vs State of Andhra Pradesh : A.I.R 1987 SC 923, Khujji @ Surendra Tiwari
Vs State of Madhya Pradesh : A.I.R 1991 SC 1853, George Vs State of Kerala: A.I.R
1998 SC 1376, Amar Singh Vs Balwinder Singh : (2003) 2 SCC 518 : A.I.R 2003 SC
1164 and Radha Mohan Singh Vs State of U.P: A.I.R 2006 SC 951).

Inconsistency Between Medical Evidence and Ocular Evidence

375. The evidence of Dr. Sujith Sreenivas (PW136) who conducted autopsy has
been referred to earlier. In Ext.P179 postmortem report, PW136 has recorded that apart

169

from the incised wounds, the deceased had sustained multiple linear contusions and
also abrasions. The defence would point out that the prosecution has no case that any
stick or other blunt weapon was used to cause the injuries on the victim and medical
evidence is not totally consistent with the testimony of PW1. PW136 has opined that the
linear contusions found on the body of the deceased could be caused by the non-cutting
blunt edge of the blade of MO1 series swords. He has also opined thattheabrasions
foundonthebodyofthedeceasedareconsistentwithslidingcontactwitharough
surface.

376. It is trite that where the eye-witnesses' account is found credible and
trustworthy, medical opinion pointing to alternative possibilities cannot be accepted as
conclusive. Eye witnesses' account would require a careful independent assessment
and evaluation for their credibility should not be adversely prejudged making any other
evidence, including medical evidence, as the sole touchstone for the test of such
credibility. The evidence must be tested for its inherent consistency and the inherent
probability of the story; consistency with the account of other witnesses held to be
credit-worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their
performance in the witness-box; their power of observation etc. Then the probative value
of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
(State Vs Krishna Gopal : A.I.R 1988 SC 2154, State of Madhya Pradesh Vs Dharkole
@ Govind Singh : A.I.R 2005 SC 44) The conflict between oral testimony and medical
evidence can be of varied dimensions and shapes. There may be a case where there is
total absence of injuries which are normally caused by a particular weapon. There is
another category where though the injuries found on the victim are of the type which are
possible by the weapon of assault, but the size and dimension of the injuries do not

170

exactly tally with the size and dimension of the weapon. The third category can be
where the injuries found on the victim are such which are normally caused by the
weapon of assault but they are not found on that portion of the body where they are
deposed to have been caused by the eye-witnesses. The same kind of inference cannot
be drawn in the three categories of apparent conflict in oral and medical evidence
enumerated above. In the first category it may legitimately be inferred that the oral
evidence regarding assault having been made from a particular weapon is not truthful.
However, in the second and third category no such inference can straightaway be
drawn. The manner and method of assault, the position of the victim, the resistence
offered by him, the opportunity available to the witnesses to see the occurrence like
their distance, presence of light and many other similar factors will have to be taken into
consideration in judging the reliability of ocular testimony. (Thaman Kumar Vs State:
A.I.R 2003 SC 3975).Ordinarily, the value of medical evidence is only corroborative. It
proves that the injuries could have been caused in the manner alleged and nothing
more. The use which the defence can make of the medical evidence is to prove that
the injuries could not possibly have been caused in the manner alleged and thereby
discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so
far that it completely rules out all possibilities whatsoever of injuries taking place in the
manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown
out on the ground of alleged inconsistency between it and the medical evidence.
(Solanki Chimanbhai Ukabhai Vs State of Gujarat: A.I.R 1983 SC 484).
377. This is not a case in which the medical evidence completely rules out all
possibilities whatsoever of injuries taking place in the manner stated by PW1. Medical

171

evidence does not show that the injuries could not possibly have been caused in the
manner stated by PW1. It Is not a case of total absence of injuries that could be caused
by MO1 series swords. Injuries in the nature of contusions on the chest, shoulders and
arms and the right side of the forehead

of the deceased

are noted in Ext.P179

certificate. As opined by PW136, these injuries could have been caused by the blunt
edge of MO1 series swords. It is true that PW1 has not in his deposition attributed use
of the blunt edge of the swords on the victim by the assailants. It is not always easy for
an eye witness to a ghastly murder to register the precise number of injuries that were
inflicted by the assailants and the part of the body on which the same were inflicted and
also to say whether the blunt edge of any weapon was also used by them. It is too much
to expect from a witness who has seen a murderous assault by a group of people a
meticulous narration of who hit whom at what precise part of the body causing what kind
of injury. How could it be possible for any person to recount with meticulous exactitude
the various individual acts done by each assailant? Had he stated so, his testimony
would have been criticized as highly improbable and unnatural.

The testimony of

eye-witnesses carries with it the criticism of being tutored if they give graphic details of
the incident and their evidence would be assailed as unspecific, vague and general if
they fail to speak with precision. The golden principle is not to weigh such testimony in
golden scales but to view it from the cogent standards that lend assurance about its
trustworthiness. Nature of the injuries received by the victim may also vary depending
on the standing or lying posture of the victim at the time of the assault. Evidence has to
be approached with a sense of reality and not from an unrealistic angle.
Prosecution Witnesses Chance Witnesses?

172

378. The defence has made an attempt to establish that many of the
witnesses examined by the prosecution, including PW1, are chance witnesses. There is
no sufficient basis for dubbing the witnesses as chance witnesses. The expression
chance witness is of dubious coinage and is not appropriate in the conditions available
in India.
379. In Rana Partap Vs State of Haryana: A.I.R 1983 SC 680, it has been
held as follows:

There were three eye witnesses. One was the brother of the deceased and
the other two were a milk vendor of a neighbouring village, who was carrying milk to the
dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road.
The learned Sessions Judge and the learned Counsel described both the independent
witnesses as chance witnesses implying thereby that their evidence was suspicious and
their presence at the scene doubtful. We do not understand the expression chance
witnesses. Murders are not committed with previous notice to witnesses; soliciting their
presence. If murder is committed in a dwelling house, the inmates of the house are
natural witnesses. If murder is committed in a brothel, prostitutes and paramours are
natural witnesses. If murder is committed in a street, only passers by will be witnesses.
Their evidence cannot be brushed aside or viewed with suspicion on the ground that
they are mere chance witnesses. The expression chance witnesses is borrowed from
countries where every mans home is considered his castle and every one must have an
explanation for his presence elsewhere or in another mans castle. It is most unsuitable
expression in a country whose people are less formal and more casual. To discard the
evidence of street hawkers and street vendors on the ground that they are chance
witnesses even where murder is committed in a street is to abandon good sense and

173

take too shallow a view of the evidence.

380. In Thangaiya Vs State of Tamil Nadu: (2005) 9 SCC 650: A.I.R 2005 SC
1142, it has been held as follows:

In a murder trial by describing the independent witnesses as 'chance witnesses'


it cannot be implied thereby that their evidence is suspicious and their presence at the
scene doubtful. Murders are not committed with previous notice to witnesses; soliciting
their presence. If murder is committed in a dwelling house, the inmates of the house are
natural witnesses. If murder is committed in a street, only passersby will be witnesses.
Their evidence cannot be brushed aside or viewed with suspicion on the ground that
they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from
countries where every man's home is considered his castle and everyone must have an
explanation for his presence elsewhere or in another man's castle. It is quite unsuitable
an expression in a country where people are less formal and more casual, at any rate in
the matter explaining their presence.
381. In Parappurath Cholayil Beeran Vs State:1991 (2) K.L.T 175: 1992
Cri.L.J. 2225, it has been observed as follows;

As the incident happened on the public road it cannot be presumed that P.Ws.
1 and 4 who happened to be at the place of occurrence are not natural witnesses.
There cannot be any controversy regarding the competency of a pedestrian being a
natural witness to an incident happening on the road. Merely because some shops are
there at the place of occurrence it cannot be assumed that if the shop owners are not
examined the evidence of pedestrians like P.Ws. 1 and 4 is open to suspicion. Trust-

174

worthiness of a chance witness is dependent upon the intrinsic quality of his evidence
and so a sweeping generalisation that such evidence is per se inferior cannot be made.
It may often happen that a shop owner engrossed in his business might not have
witnessed an incident which happened near his shop. At the same time a person who
happened to be there might have witnessed the occurrence. Merely on the ground that
he happened to be at the place of occurrence by sheer coincidence to witness the
incident his testimony cannot be discarded for the sole reason that he is only a chance
witness. When a pedestrians evidence that he saw the incident which happened on the
road inspires confidence it cannot be condemned outright characterizing it as the
testimony of a chance witness. Rejection of the evidence of a witness without proper
analysis on the sole score that he is a chance witness is not a healthy practice to be
followed by the Court and has to be shunned.
382. In Sunder Vs State: AIR 1957 All 809: 1957 Cri.L.J.1378, it was
observed as follows:

Another argument of a general nature put forward was that the eye-witnesses
produced by the prosecution were chance witnesses and that natural witnesses were
not produced. Now, a chance witness is a witness who should not normally be where
and when he professes to have been. From that point of view, one may be a chance
witness even at ones own house if, for instance, one should at that hour have been in
ones office. Considering that the incident took place on the grand trunk road, only
passers-by could have been natural witnesses of the same. As noticed already, all the
four eye-witnesses profess to have been passers-by at the time. The time for that was
also not unusual since it was only about 5 oclock in the evening. Whether the witnesses
were speaking the truth when they said that they were passing by at the time is another

175

matter. But, subject to that it could not certainly be said that they were mere chance
witnesses.

383. In State of Kerala Vs Narayanan Bhaskaran : 1991 (2) KLT 217, it has
been observed as follows:

The expression 'chance witness' is of dubious coinage - of no precise import,


and often misunderstood than understood. The most that the expression may convey, is
that the witness is not a probable witness or a likely witness. For that matter, human
beings do not always move in an appointed orbit. Because of their presence at a place,
where they have no compelling reasons to be present, their evidence does not warrant
rejection.
384. In Chandra Bhan Vs. State : 2012 Cri.L.J 3150, it has been held as
follows:

Chance witness is a witness who appears at the place of occurrence per


chance and the presence of whom may not be natural in context to the occurrence. But,
that principle on branding a witness a chance witness has undergone a transformation.
It is no longer a proposition which could be universally applicable to all such cases
where the appearance of a person at or around the place of occurrence could be
accidental. It now stands resolved since long that no one could be said to be a chance
witness merely because he was purposelessly appearing roaming in or around a place
where he happened to witness any offence being committed by some set of persons.
We Indians have no set norms and habits of spending time and we may often be found
roaming around aimlessly at any place at any moment of time.

If a person who

176

aimlessly or even purposely was at such a place that he had seen the occurrence being
committed in his presence, he could not be said to be chance witness. Moreover, the
possibility of a person being a chance witness may not be inferred merely on asking;
facts of the case have to be considered before any finding regarding a person being a
chance witness is recorded
385. If by coincidence or chance a person happens to be at the place of
occurrence at the time it is taking place, he is called a chance witness. And if such a
person happens to be a relative or friend of the victim or inimically disposed towards the
accused then his being a chance witness is viewed with suspicion. Such a piece of
evidence is not necessarily incredible or unbelievable but does require cautious and
close scrutiny ( Bahal Singh Vs State of Haryana: A.I.R 1976 SC 2032).
386. Therefore, witnesses cannot be dubbed as chance witnesses and their
testimony cannot be rejected on that ground.
Non-examination of Witnesses by the Prosecution
387. Non-examination of certain witnesses by the prosecution, especially the
witness Sivaraman (CW182), is severely commented upon and criticized by the learned
counsel for the defence. Sivaraman was the President of the Vallkad Brothers Club. The
prosecution has examined Sooraj Kumar (PW10), the Secretary of the club to depose
with regard to the anniversary of the club and other allied matters. The contention of the
defence is that Sivaraman was cited as an eye-witness by the prosecution and if he was
examined, the true version of the incident would have come out. If so, nothing prevented
the defence from examining him.
388. It is true that if a material witness, who would unfold the genesis of the

177

incident or an essential part of the prosecution case, is not examined, the prosecution
case can be termed as suffering from a deficiency and withholding of such a material
witness would oblige the court to draw an adverse inference against the prosecution by
holding that if the witness would have been examined it would not have supported the
prosecution case. On the other hand, if already overwhelming evidence is available and
examination of other witnesses would only be a repetition or duplication of the evidence
already adduced, non-examination of such other witnesses may not be material. It is for
the Public Prosecutor to take a decision as to which among the persons cited are to be
examined. If there are too many witnesses on the same point the Public Prosecutor is at
liberty to choose two or some among them alone so that the time of the court can be
saved from repetitious depositions on the same factual aspects. It will help not only the
prosecution in relieving itself of the strain of adducing repetitive evidence on the same
point but also help the court considerably in lessening the workload. The situation in a
case where the prosecution cited two categories of witnesses to the occurrence, one
consisting of persons closely related to the victim and the other consisting of witnesses
who have no such relation, the Public Prosecutor's duty to the court may require him to
produce witnesses from the latter category, also subject to his discretion to limit to one
or two among them. But if the Public Prosecutor got reliable information that any one
among that category would not support the prosecution version he is free to state in
court about that fact and skip the witness from being examined as a prosecution
witness. It is open to the defence to cite him and examine him as a defence witness. The
decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can
interview the witness beforehand to enable him to know well in advance the stand which
that particular person would be adopting when examined as a witness in the court.

178

(Banti @ Guddu Vs State of Madhya Pradesh; A.I.R 2004 SC 261). A common issue
that may arise in such cases where some of the witnesses have not been examined,
though the same may be material witnesses is, whether the prosecution is bound to
examine all the listed/cited witnesses. In Abdul Gani Vs State of Madhya Pradesh: A.I.R
1954 SC 31, the Apex Court has examined the aforesaid issue and held that as a
general rule, all witnesses must be called upon to testify in the course of the hearing of
the prosecution, but that there is no obligation compelling the Public Prosecutor to call
upon all the witnesses available who can depose regarding the facts that the
prosecution desires to prove. Ultimately, it is a matter left to the discretion of the Public
Prosecutor and though a court ought to and no doubt would, take into consideration the
absence of witnesses whose testimony would reasonably be expected, it must adjudge
the evidence as a whole and arrive at its conclusion accordingly, taking into
consideration the persuasiveness of the testimony given in the light of such criticism, as
may be levelled at the absence of possible material witnesses.In Sardul Singh Vs State
of Bombay : A.I.R 1957 SC 747, a similar view has been reiterated, observing that a
court cannot, normally compel the prosecution to examine a witness which the
prosecution does not choose to examine, and that the duty of a fair prosecutor extends
only to the extent of examination of such witnesses, who are necessary for the purpose
of disclosing the story of the prosecution with all its essentials. In Masalti Vs State of
U.P : A.I.R 1965 SC 202, it has been held that it would be unsound to lay down as a
general rule, that every witness must be examined, even though, the evidence provided
by such witness may not be very material, or even if it is a known fact that the said
witness has either been won over or terrorised. In such cases, it is always open to the
defence to examine such witnesses as their own witnesses. In Raghubir Singh Vs State

179

of U.P: A.I. R 1971 SC 2156, it has been held that material witnesses considered
necessary by the prosecution for unfolding the prosecution story alone need be
produced without unnecessary and redundant multiplication of witnesses. In Harpal
Singh Vs Devinder Singh : A.I.R 1997 SC 2914, the Apex Court reiterated a similar
view and observed that the illustration (g) in Section 114 of the Evidence Act is only a
permissible inference and not a necessary inference and unless

there are other

circumstances also to facilitate the drawing of an adverse inference, it should not be a


mechanical process to draw the adverse inference merely on the strength of nonexamination of a witness even if it is a material witness.
389. Thus, the prosecution is not bound to examine all the witnesses cited. It
can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also
examine the witnesses cited but not examined by the prosecution, in his defence. It is
the discretion of the prosecutor to tender the witnesses to prove the case of the
prosecution. The court will not interfere with the exercise of that discretion unless it is
shown that the prosecution has been influenced by some oblique motive. In the instant
case, it was not required for the prosecution to examine Sivaraman (CW182) as an eyewitness as the prosecution examined three such witnesses . There was no necessity to
multiply witnesses of the same kind. Whether the court is prepared to believe all of them
is a different matter. It was also not necessary for the prosecution to examine Sivaraman
(CW182) as the President of the Vallkad Brothers Club as it had examined the Secretary
of the club to prove the matters relating to the anniversary of the club. If the defence had
got a plea that the truthful version of the incident would have been revealed only by the
examination of this witness, they could have very well examined him. On account of

180

non-examination of this witness, no adverse inference against the prosecution is called


for.

Unlawful Assembly
390. There can be no doubt with regard to the fact that accused 1 to 7 were
members of an unlawful assembly and the common object of it was to commit murder of
T.P.Chandrasekharan. When a concerted attack is made by a group of persons, every
member of the unlawful assembly is liable for the act committed in prosecution of the
common object of such assembly or for an act which was known to be likely to be
committed in prosecution of the common object. There may not be a common object in
a sudden fight but in a planned attack on the victim, the presence of the common object
amongst the persons forming the unlawful assembly can be inferred.
391. In Harshadsingh Pahelvansingh Thakore Vs State of Gujarat : A.I.R
1977 SC 710 : (1976) 4 SCC 640 it has been observed as follows:
When a murderous assault by many hands with many knives has ended fatally, it
is legally impermissible to dissect the serious ones from the others and seek to salvage
those stabs have not proved fatal. When people play with knives and lives, the
circumstances that one man's stab falls on a less or more vulnerable part of the person
of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the
inevitable inference when a gory group animated by lethal intent accomplish their
purpose cumulatively."

181

392. The quintessence of the discussion above can be stated as follows: The
evidence of PW1 regarding the incident is reliable and trustworthy. His testimony gets
corroboration from various circumstances established by the prosecution against
accused 1 to 7. The prosecution has proved beyond reasonable doubt through the
evidence of PW1 and also the circumstances connecting accused 1 to 7 with the
incident that they were members of an unlawful assembly and that in prosecution of the
common object of that assembly, 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. Points 1 and 2 are answered accordingly.
Conspiracy to Commit Murder
393. Point No.3:-- The consideration of this point relates to the conspiracy
alleged

to

have

been

hatched

by

the

accused

to

commit

murder

of

T.P. Chandrasekharan.
394. The charge of conspiracy against the accused is that on account of
political enmity towards T.P. Chandrasekharan, on 02.04.2012, between 15.15 and
15.45 hours, at the flower shop of the accused Raveendran (A30) at the place Orkatteri,
accused 8 to 10 and 14 entered into a criminal conspiracy to commit murder of
T.P. Chandrasekharan and that such conspiracy was hatched with the consent and
knowledge of the accused P. Mohanan (A14). It is also alleged that accused 9, 10 and
14 entrusted the accused K.C. Ramachandran (A8) the responsibility to accomplish the
object of murdering T.P. Chandrasekharan and for that purpose the accused
K.C. Ramachandran (A8) contacted the accused Manojan (A11) and Geothi Babu (A12).

182

It is also alleged that on 10.04.2012, between 16.00 and 17.00 hours, at Sameera
Quarters at the place Chokli in Kannur District, accused 1, 3, 8, 11 and 12 discussed the
plan to murder T.P. Chandrasekharan. It is also alleged that the accused
K.C. Ramachandran (A8) and Manojan (A11), between 7.30 and 8.00 hours on
20.04.2012, reached the house of the accused Kunhanandan (A13) at the place Parat
and that accused 8, 11 and 13 there entered into a criminal conspiracy to murder
T.P. Chandrasekharan and that the accused Kunhanandan (A13) contacted the accused
P. Mohanan (A14) to his mobile phone having the SIM card number 9495804804
through the mobile phone having the SIM card number 9747170471 of the accused
K.C. Ramachandran (A8) and confirmed the plan to murder T.P. Chandrasekharan. It is
further alleged by the prosecution that on 24.04.2012, at about 12 noon, the accused 2,
3, 5 and 7 reached the house of Kunhanandan (A13) at the place Parat in the car
KL-59/B 5151 driven by the accused Rafeek (A18) and that accused 2, 3, 5, 7 and 13
conspired together and prepared the plan to murder T.P. Chandrasekharan. It is also the
case of the prosecution that in pursuance of the conspiracy, on the evening of
24.04.2012, at Sameera Quarters at the place Chokli, the accused Ramachandran (A8)
gave Rs. 10,000/- to the accused Anoop (A1) as the first instalment of money for
accomplishing the plan of murdering T.P. Chandrasekharan and that the accused
Ramachandran (A8) gave a further amount of Rs. 40,000/- to the accused Anoop (A1)
on the morning of 25.04.2012 at the place Pallikuni for the aforesaid purpose. Thus, the
prosecution has alleged that accused 1 to 5 and 7 to 14 had entered into a criminal
conspiracy to murder T.P. Chandrasekharan and thereby they committed an offence
punishable under section 120B of the Indian Penal Code.
Criminal Conspiracy Ingredients and Proof

183

395.

Before discussing the evidence regarding the conspiracy alleged to

have been hatched by the accused to commit murder of T.P. Chandrasekharan, it would
be advantageous to refer to the ingredients of the offence of conspiracy and the nature
of proof required to establish that offence.
396. Section 120A of the Indian Penal Code defines the offence of criminal
conspiracy. It states that when two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy. The explanation to this section states that it is
immaterial whether the illegal act is the ultimate object of such agreement, or is merely
incidental to that object. Section 120B of the Indian Penal Code provides the
punishment for committing the offence of criminal conspiracy.
397. Secrecy is the hallmark of conspiracy. It is impossible to adduce direct
evidence of the same. The offence can only be proved largely from inferences drawn
from acts or illegal omission committed by the conspirators in pursuance of a common
design. A conspiracy from its very nature is generally hatched in privacy. It is, therefore,
extremely rare that direct evidence in proof of conspiracy can be forthcoming from
wholly disinterested quarters or from utter strangers. But, like other offences, criminal
conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of
conspiracy is largely inferential. Inferences must be founded on solid facts. Surrounding
circumstances and antecedent and subsequent conduct, among other factors, constitute
relevant material. For an offence punishable under section 120B I.P.C the prosecution
need not necessarily prove that the perpetrators expressly agreed to do or cause to be
done the illegal act. The agreement may be proved by necessary implication.

184

398. The gist of the offence of criminal conspiracy is an agreement to break


the law. The parties to such an agreement will be guilty of criminal conspiracy, though
the illegal act agreed to be done has not been done. So too, it is not an ingredient of the
offence that all the parties should agree to do a single illegal act. (Major E.G. Barsay Vs.
State of Bombay : A.I.R 1961 SC 1762).
399. The gist of the offence of conspiracy lies, not in doing the act, or
effecting the purpose for which the conspiracy is formed, nor in attempting to do them,
nor in inciting others to do them, but in the forming of the scheme or agreement between
the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is
not, per se enough. (Kehar Singh Vs. State : A.I.R 1988 SC 1883). When men enter into
an agreement for an unlawful end, they become ad hoc agents for one another and
have made a partnership in crime. (State Vs. Nalini : A.I.R 1999 SC 2640).
400. It is well settled that the agreement amongst the conspirators can be
inferred by necessary implication. In most cases it will be difficult to get direct evidence
of the agreement. But a conspiracy can be inferred from circumstances giving rise to a
conclusive or irresistible inference of an agreement between two or more persons to
commit an offence.
401. In order to prove criminal conspiracy, there must be evidence, direct or
circumstantial, to show that there was an agreement between two or more persons to
commit an offence. The prosecution has to discharge its onus of proving the case
against the accused beyond reasonable doubt. The circumstances in a case, when
taken together on their face value, should indicate the meeting of the minds between the
conspirators for the intended object of committing an illegal act or an act which is not

185

illegal, by illegal means. A few bits here and a few bits there on which the prosecution
relies cannot be held to be adequate for connecting the accused with the commission of
the crime of criminal conspiracy. It has to be shown that all means adopted and illegal
acts done were in furtherance of the object of conspiracy hatched. The circumstances
relied for the purposes of drawing an inference should be prior in point of time than the
actual commission of the offence in furtherance of the alleged conspiracy. (Esher Singh
Vs. State of A.P : A.I.R 2004 SC 3030).
402. All conspirators need not take active part in the commission of each and
every conspiratorial act. But, mere knowledge, even discussion, of the plan would not
constitute conspiracy. Each one of the circumstances should be proved beyond
reasonable doubt and such circumstances proved must form a chain of events from
which the only irresistible conclusion is about the guilt of the accused which can be
safely drawn and no other hypothesis of the guilt is possible. (K.R. Purushothaman Vs.
State of Kerala : A.I.R 2006 SC 35).
403. Privacy and secrecy are more characteristics of a conspiracy, than of a
loud discussion in an elevated place open to public view. Direct evidence in proof of a
conspiracy is seldom available. Offence of conspiracy can be proved by either direct or
circumstantial evidence. It is not always possible to adduce affirmative evidence about
the date of the formation of the criminal conspiracy, about the persons who took part in
the formation of the conspiracy, the object of conspiracy and about the manner in which
the object of conspiracy is to be carried out. All this is necessarily a matter of inference.
(Mohd Khalid Vs. State of West Bengal : (2002) 7 SCC 334).

186

404. In Kehar Singh Vs. State : A.I.R 1988 SC 1883, it has been held as
follows:
"Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce
direct evidence of the same. The prosecution will often rely on evidence of acts of
various parties to infer that they were done in reference to their common intention. The
prosecution will also more often rely upon circumstantial evidence. The conspiracy can
be undoubtedly proved by such evidence direct or circumstantial. But the court must
enquire whether the two persons are independently pursuing the same end or they have
come together to the pursuit of the unlawful object. The former does not render them
conspirators, but the latter does. It is, however, essential that the offence of conspiracy
required some kind of physical manifestation of agreement. The express agreement,
however, need not be proved. Nor actual meeting of the two persons is necessary. Nor it
is necessary to prove the actual words of communication. The evidence as to
transmission of thoughts sharing the unlawful design may be sufficient.
405. In Yash Pal Mittal Vs. State pf Punjab : A.I.R 1977 SC 2433 :(1977) 4
SCC 540, it has been held as follows:
The very agreement, concert or league is the ingredient of the offence. It is not
necessary that all the conspirators must know each and every detail of the conspiracy
as long as they are co-participators in the main object of the conspiracy. There may be
so many devices and techniques adopted to achieve the common goal of the conspiracy
and there may be division of performances in the chain of actions with one object to
achieve the real end of which every collaborator must be aware and in which each one
of them must be interested. There must be unity of object or purpose but there may be

187

plurality of means sometimes even unknown to one another, amongst the conspirators.
In achieving the goal several offences may be committed by some of the conspirators
even unknown to the others. The only relevant factor is that all means adopted and
illegal acts done must be and purported to be in furtherance of the object of the
conspiracy even though there may be sometimes misfire or overshooting by some of the
conspirators.
Conspiracy to Murder Evidence and Reliability
406. Before entering into a discussion of the direct evidence adduced by the
prosecution regarding the hatching of conspiracy by the accused to murder
T.P. Chandrasekharan, one significant circumstance in the case needs mention.
Accused 1 to 7 were utter strangers to T.P. Chandrasekharan. He was not known to
them. They had no political or personal enmity towards him. They have no case that
they are followers of C.P.I(M). They have no case in the statement filed under section
313 Cr.P.C that they belong to C.P.I(M) or that they are sympathizers of C.P.I(M).
Without any rhyme or reason, they fatally assaulted T.P. Chandrasekharan. Then, the
inference

which

is

possible

is

that

they

were

hired

as

assassins

of

T.P. Chandrasekharan. No other inference is possible. T.P. Chandrasekharan had


nothing to do with accused 1 to 7 before his death. It must have been, therefore,
execution of a plan or design that was done by accused 1 to 7. This is a strong
circumstance

in

support

T.P. Chandrasekharan.

of

the

existence

of

conspiracy

to

murder

188

407. Authority for adopting the aforesaid view can be had from the decision of
the Apex Court in John Pandian Vs. State : A.I.R 2011 SC (Supp) 531 in which it has
been observed in paragraph 38 as follows:
The strongest circumstance in support of the existence of a conspiracy appears
to be the fact that the three totally unknown persons to Vivekanandan (deceased) went
all the way from Palayamkottai/Tirunelveli and without any rhyme or reason, fatally
assaulted Vivekanandan (deceased). Indeed the only inference which is possible is that
the three assailants were hired to act as the assassins of Vivekanandan (deceased).
There is no other inference possible. Inspite of a very devoted investigation, there is no
nexus established between Kumar Vellaichami (A-9), Pavunraj @ Pavun (A-10) and
Prince Kumar @ Prince (A-11) on one part and Vivekanandan (deceased) on the other.
He was not known to them. He had got nothing to do with them nor was there any
enmity, any rhyme or reason for these three assailants to come all the way from
Palayamkottai/Tirunelveli and to murderously assault Vivekanandan (deceased). It must
have been, therefore, a plan, for execution of which the three assailants did what is
alleged against them.
(a) Conspiracy at the Flower Shop of Raveendran (A30) on 02.04.2012
408. According to the prosecution case, the centre of hatching conspiracy on
02.04.2012 to murder T.P. Chandrasekharan was the flower shop of the accused
Raveendran (A30). Suresh Babu (PW126) is the witness examined by the prosecution
to prove the conspiracy alleged to have taken place in the aforesaid shop.
409. Suresh Babu (PW126) has given evidence in examination-in-chief as
follows: He is a plant operator in a milk society. On 02.04.2012, at 15.00 hours, he had

189

gone to 'Max Studio' in Orkatteri to take prints of the photographs of his daughter. His
friend Vibilesh (CW167) was with him. When they were walking to the studio, he saw the
C.P.I(M) leaders Mohanan Master, K.K. Krishnan, K.C. Ramachandran and C.H. Asokan
entering into the flower shop of Raveendran (A30). PW126 identified in the court
K.C. Ramachandran (A8), C.H. Asokan (A9), K.K. Krishnan (A10) and P. Mohanan
Master (A14). He has stated that he had previous acquaintance with them. He also
identified in the court Raveendran (A30). PW126 has deposed that he and Vibilesh went
to the studio. The studio is on the southern side of the flower shop of Raveendran (A30).
There is another shop in between those two establishments. In order to go to the studio,
one has to pass by the front side of the flower shop. PW126 has deposed that after
taking prints of the photograph, he and Vibilesh returned from the studio within five
minutes. When they were getting out of the studio and when they reached the corner
near the flower shop, they heard the name of T.P. Chandrasekharan mentioned from the
shop. Then they stood aside and listened. PW126 has deposed that then the sound of
K.C. Ramachandran (A8) was loudly heard from the flower shop. He heard
K.C. Ramachandran (A8) saying if he is kept alive, the party workers will not remain
quiet. PW126 would say that then the sound of Mohanan Master (A14) was heard. He
heard Mohanan Master (A14) saying that the matter can be set at right. The others there
were stating something in low tones and it was not clear. Suddenly, they stopped their
conversation. PW126 then left there to his house. He has stated that he is a person who
could identify the voice of K.C. Ramachandran (A8) and Mohanan Master (A14).
410. PW126 has stated on cross examination that it was not at 15.15 hours
but at 15.00 hours that he went to the studio. He would say that at 15.15 hours, he was
returning from the studio. He has stated that he was in the studio for about 15 minutes.

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He has admitted that he was on full duty in the milk society on 02.04.2012. But he would
say that his duty time is from 06.00 hours to 14.00 hours. PW126 has admitted that he
had signed the attendance register in the milk society on 02.04.2012 both on the
morning and the afternoon. He would add that it was the practice there to sign the
attendance register at both times. He has subsequently clarified that as he had no work
after 14.00 hours, he used to put two signatures at 10.00 hours itself. He identified his
initial in the copy of the attendance register of the milk society for the month of April,
2012 (Ext.D23). PW126 denied the suggestion that his duty time in the milk society was
from 10.00 hours to 17.00 hours. In answer to a question posed in the cross
examination, PW126 has stated that he had seen the persons who were talking inside
the flower shop. He has stated that he did not see anybody in the flower shop who had
any connection with that shop. He has admitted that he had worked in the C.P.I(M)
together with T.P. Chandrasekharan.
411.

Learned counsel for the accused would brand PW126 as a chance

witness. PW126 has explained the reason for his presence in front of the flower shop of
Raveendran (A30) at the time of the incident spoken to by him. There is no improbability
in the evidence of PW126 that at that time he had gone to the studio there to take prints
of the photograph of his daughter.
412. The evidence of PW126 is that it was at 15.00 hours on 02.04.2012 that
he went to the studio. What he had stated to the police was that it was at 15.15 hours
that he went to the studio. This discrepancy in his evidence with regard to the time of
going to the studio is not material. It does not in any way affect the plea of alibi raised by
the accused Mohanan (A14) and others. In the statement filed under section 313 Cr.P.C,

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the plea of the accused K.C. Ramachandran (A8) and K.K. Krishnan (A10) is that they
were at Onchiyam Martyr Square from 14.00 hours on that day. In the statement filed
under section 313 Cr.P.C, the plea of the accused Mohanan (A14) is that he had
reached the Onchiyam Martyry before 15.00 hours on that day. Therefore, the variation
of time in the testimony of PW126 has no effect on the plea of alibi raised by the
accused. Rustic persons may have only sluggish chronometric sense. Rustic witnesses
cannot be expected to have an exact or precise sense of time. Moreover, human
memory is apt to blur with passage of time. Too much play on such facts goes against
realism so essential in testimonial appraisal.
413. PW126 has given evidence that he is a person who could identify the
voice of K.C. Ramachandran (A8) and P. Mohanan (A14). There is no reason to
disbelieve him. He was earlier the local leader of C.P.I(M). K.C. Ramachandran (A8) and
P. Mohanan (A14) are local leaders of C.P.I(M). Therefore, it is only probable that
PW126 had occasion to talk with the above mentioned accused when he was an activist
of C.P.I(M). In the statements filed under section 313 Cr.P.C, K.C. Ramachandran (A8)
and P. Mohanan (A14) have admitted previous acquaintance with PW126. They have
not raised any plea that they had no occasion to talk with him.
414. The accused have got a plea that at 15.00 hours on 02.04.2012, PW126
was on duty in the milk society. PW126 has given evidence that his duty time is from
06.00 hours to 14.00 hours. There is no sufficient ground to disbelieve him. He has
deposed that as his duty time ends at 14.00 hours, he used to put initials in the
attendance register at 10.00 hours both for the morning and the afternoon sessions of
work. No steps were taken by the defence to prove the plea that PW126 was in the milk

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society at 15.00 hours on 02.04.2012. No substantive evidence in that regard was


adduced by the defence. The Secretary of the milk society was not examined by the
defence. He could have been examined by the defence at least to prove their plea that
the duty time of PW126 in the milk society was from 10.00 hours to 17.00 hours and not
from 06.00 hours to 14.00 hours as stated by PW126.
415. There can be no doubt with regard to the fact that PW126 is a partisan
witness. He has denied that he is an active worker of R.M.P but he has admitted that he
is a follower of that party. He was an active member of C.P.I(M). He had worked together
with T.P. Chandrasekharan in the C.P.I(M). After leaving C.P.I(M), his allegiance is to
R.M.P. It is not the end of the matter. He has got reasons to be inimical towards the
leaders of C.P.I(M). On the next day of the murder of T.P. Chandrasekharan, attack was
made on the office building of the local committee of C.P.I(M) in Orkatteri. It has come
out in the evidence of PW126 that he is an accused in the case registered as crime
no. 157/2012 of Edacherry police in connection with that incident. PW126 has also
admitted that he has been in jail for a period of 29 days in connection with that case.
There was also another case against him which was registered in connection with the
violent incidents that took place at the time of the Lok Sabha Election in the year 2009.
PW126 has admitted that the allegation against him in that case is that he had attacked
the workers of C.P.I(M). These facts assume importance in the context that his evidence
implicates four local leaders of C.P.I(M) in the conspiracy to commit murder of
T.P. Chandrasekharan who was the leader of R.M.P.

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416. The fact that PW126 is a partisan witness is not sufficient to discard his
evidence as unreliable. The intrinsic worth of his evidence has to be assessed. His
testimony requires a close scrutiny with care and caution.
417. There are reasons which persuade the court to find that it is unsafe to
act upon the testimony of PW126. There is inherent improbability in the testimony of
PW126 that he heard K.C. Ramachandran (A8) and P. Mohanan (A14) engaged in a
conversation

making

an

agreement

for

accomplishing

the

murder

of

T.P. Chandrasekharan. The evidence of PW126 itself shows that the flower shop of
Raveendran (A30) is located in such a place that anybody talking inside that shop would
be heard by others who have occasion to pass by that way. It is difficult to believe that
K.C. Ramachandran (A8), K.K. Krishanan (A10), C.H. Asokan (A9) and P. Mohanan
(A14), who were local leaders of the C.P.I(M), would engage in a conversation, that too
in loud voice, in such a place discussing the plan for annihilating a political opponent.
The evidence of PW126 shows that the local office of the C.P.I(M) is located within a
distance of 100 metres from the aforesaid flower shop. When such safe and suitable
and convenient place was available for the local leaders of C.P.I(M) to prepare a plan for
eliminating their political adversary, the probability of them taking the risk of hatching
conspiracy in a conspicuous place to murder such a person who was well known in that
area, that too by engaging in a conversation with loud voice, is something beyond
imagination. It cannot be believed that the conspirators would have discussed their plan
in a shop accessible to the public, throwing all caution to the winds.

It is highly

improbable that if the conspirators were talking about a sensitive issue, they would talk
in loud voice in a shop where anybody could have entered without notice.

194

418. In State of U.P. Vs Hori Lal : 1999 Cri.L.J 1039, it has been held by the
Allahabad High Court as follows:
It may be stated here that criminal conspiracy is generally hatched in secrecy. It
is not believable that accused Hori Lal should have hatched the said conspiracy
regarding the murder of Mulaim Singh sitting in a shop and talking so loudly with his
associates as to enable a stranger like Kalyan, P. W. 12 to overhear his designs. Then
again, the conduct of this witness to have not informed this fact to the police or even to
Mulaim Singh (deceased) and further he resiled from his statement which was recorded
by the Investigating Officer, goes to show that he was a got-up witness.
419. In Darshan Singh Vs. State : A.I.R 1983 SC 554, the Hon'ble Supreme
Court has observed as follows:
On the question of conspiracy, the prosecution led the usual kind of puerile
evidence, as for example, of someone overhearing something while on way to
answering a call of nature. Here the strain was changed by alleging that Suran Singh
(P.W.27) heard a most damaging conversation between the accused while he was
negotiating the purchase of a tractor.
420. The dictum of the decisions mentioned above is squarely applicable to
the testimony of PW126. Hatching conspiracy, by engaging in loud conversation inside
a shop, to murder the leader of an opposite political faction, is something against
common sense. PW126 has stated that T.P. Chandrasekharan was a person known to
him for 10-15 years. He had together worked with the deceased in C.P.I(M). The
deceased was a leader respected by him. Then, if he had occasion to hear a
conversation of the local leaders of the political party opposed to the deceased, of

195

annihilating the deceased, he would have certainly informed that matter to the
deceased. He has no case that he had told T.P. Chandrasekharan about the
conversation of the local leaders of the C.P.I(M) which he had occasion to hear. PW126
came to know about the murder of T.P. Chandrasekharan on the night of 04.05.2012
itself. Yet, he did not feel it necessary to immediately inform the police about the
conversation of the accused regarding their plan to murder T.P. Chandrasekharan. It was
only on 13.05.2012 he gave statement to the police, that too, after deliberation and
discussion with his friends. The conduct of PW126 is quite unnatural. He has no case
that he was afraid of anybody. He is not a coward. He was the local leader of C.P.I(M) till
a few years ago. His conduct in keeping silence about the conspiracy raises grave
suspicion on the credibility of his testimony. In these circumstances, the evidence of
PW126 does not inspire confidence. It is not safe to act upon his testimony.
421. The accused K.C. Ramachandran (A8), K.K. Krishnan (A10) and
P. Mohanan Master (A14) have raised a plea of alibi. It is their plea that before 15.00
hours on 02.04.2012, they had reached Onchiyam Martyr Square and they were present
there for the inauguration of the torch-bearing procession conducted in connection with
the Party Congress of C.P.I(M). Therefore, it is contended by these accused that the
testimony of PW126 that he saw them at 15.00 hours at the flower shop of Raveendran
(A30) in Orkatteri is not true.
422. The plea of alibi postulates the physical impossibility of the presence of
the accused at the place of the occurrence by reason of his presence elsewhere. The
plea can succeed only if it is shown that the accused was so far away at the relevant
time that he could not be present at the place of crime. Alibi is based upon the theory

196

that the fact of presence elsewhere is essentially inconsistent with the presence of the
accused at the place and time of the occurrence so that his participation in the incident
becomes impossible. Strict proof is required to prove the plea of alibi. The accused must
adduce strict proof of impossibility of his/her absence at the place of occurrence. If a
plea of alibi is set up, then it must be proved with absolute certainty so as to completely
exclude the possibility of the presence of the person concerned during the occurrence.
423. The defence has examined DW5 to prove the plea of alibi raised by
them. DW5 is a photographer. He is conducting a studio by name 'Geetha Photos' in
Kannur. He has given evidence that on 02.04.2012, he had taken photographs of the
inaugural function of the torch-bearing procession of the C.P.I(M) at the Onchiyam
Martyr Square. The job of taking photographs was entrusted with him by
V.P. Gopalakrishnan. He had been asked to take the photographs of the function held
there. DW5 has deposed that he reached the aforesaid place at about 14.30 hours on
02.04.2012. After he reached there, Mohanan Master (A14) and C.H. Asokan (A9) and
other persons reached there at various times. DW5 has also deposed that
Dakshinamoorthy handed over the torch to Mohanan Master (A14). Thereafter,
Mohanan Master (A14) handed over the torch to Pradeepan. Thereafter the procession
began from there. DW5 has deposed that he had taken photographs of the aforesaid
function using a digital camera. He incorporated the photographs in a compact disc and
gave it to Gopalakrishnan. DW5 identified the aforesaid compact disc in the court
(Ext.D57). On looking into the date and time shown in the property menu of Ext.D57
compact disc which was allowed to be displayed in the court on a screen, DW5 has
stated the date and time of taking the photographs marked as Exts.D40 to D56. The
time of taking these photographs, according to DW5, starts from 14.50 hours and ends

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at 15.53 hours on 02.04.2012. DW5 has also identified K.C. Ramachandran (A8),
C.H. Asokan (A9) and P. Mohanan (A14) in some of the aforesaid photographs.
424. The evidence of DW5 does not help the defence to prove the plea of
alibi raised by the accused K.C. Ramachandran (A8) and K.K. Krishnan (A10) and
P. Mohanan Master (A14). He has not deposed before the court the exact or even the
approximate time at which the aforesaid persons reached Onchiyam Martyr Square. His
evidence in examination-in-chief is only that he had reached there at 14.30 hours and it
was thereafter Mohanan Master (A14) and C.H. Asokan (A9) came there. He has
categorically stated on cross examination that he could not tell the time at which
K.C. Ramachandran (A8) and Mohanan Master (A14) and C.H. Asokan (A9) came
there. He would say that when he had taken the photographs, the aforesaid persons
were there. The evidence of DW5 does not prove that between 15.00 and 15.15 hours
on 02.04.2012, the aforesaid accused were present at the Onchiyam Martyr Square.
425. DW5 has given evidence regarding the time of taking the photographs
by looking into the property menu of the compact disc which was displayed in the court
on a screen. The time of taking the photographs mentioned therein cannot be accepted
as correct. In the first place, the compact disc produced before the court which has been
marked as Ext.D57 is not proved to be genuine. According to DW5, Ext.D57 is the
compact disc given by him to V.P. Gopalakrishnan. The defence did not examine
V.P. Gopalakrishnan. DW5 has given evidence that after taking the photographs of the
function, he had given the compact disc containing the images of the photographs to
Gopalakrishnan. He has stated on cross examination that he at first gave the compact
disc and subsequently he gave the memory stick to Gopalakrishnan. DW5 has stated

198

that it was on the evening of 03.04.2012 that he gave the compact disc to
Gopalakrishnan. He gave the memory stick to Gopalakrishnan about three months ago.
Till that time he was using that memory stick for taking photographs. DW5 has also
deposed that Gopalakrishnan returned the memory stick to him. There is no assurance
that the compact disc produced by the defence before the court is the same compact
disc which was given by DW5 to Gopalakrishnan. Manipulation of the photographs in
Ext.D57 compact disc cannot be ruled out. By producing Ext.P581 compact disc
containing the same photographs, the prosecution has proved that manipulation is
possible. In Ext.P581 compact disc produced by the prosecution, the date and time of
taking the photographs are seen entered in the property menu as dates and time in the
year 2014. This would show that manipulation is easily possible of the images contained
in a compact disc. In the second place, even if it is accepted that Ext.D57 compact disc
is genuine, it does not constitute substantive evidence. It can only be used as a
corroborative piece of evidence. Substantive evidence to prove the plea of alibi is the
evidence of a witness that he saw a particular person at a particular place at a particular
time. The evidence of DW5 does not prove the exact or even the approximate time at
which K.C. Ramachandran (A8), K.K. Krishnan (A10) and P. Mohanan Master (A14)
reached Onchiyam Martyr Square on 02.04.2012. The defence has not succeeded in
proving the plea of alibi through the evidence of DW5 and Ext.D57.
426. However, the failure of the defence to prove the plea of alibi is of no
consequence. The evidence of PW126 is found to be not credible by the court. The
primary burden is on the prosecution to prove the presence of the accused at the time
and place alleged by it. Only when such burden is discharged by the prosecution the
burden of the defence to prove the plea of alibi arises.

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427. There is also some other evidence to be discussed in connection with


the conspiracy alleged to have been hatched at the flower shop of Raveendran (A30).
Dy.S.P Jossy Cherian (PW165) has given evidence that he arrested the accused
K.C. Ramachandran (A8) at 17.00 hours on 16.05.2012. Ext.P399 is the arrest memo
and

Ext.P400

is

the

inspection

memo.

PW165

has

given

evidence

that

K.C. Ramachandran (A8) gave a statement to him that if he was taken, he would point
out the shop. PW165 has stated that as led by K.C. Ramachandran (A8), he reached
Orkatteri Town and he prepared Ext.P61 observation mahazar of the shop in room
number 14/499 of Eramala Panchayath which was pointed out to him by
K.C. Ramachandran (A8).
428. Pramod (PW79) is an attestor to Ext.P61 observation mahazar. He has
deposed that on 17.05.2012, at 17.00 hours, he saw a police vehicle being stopped at
the entrance of the shopping complex of Raveendran (A30). PW79 has deposed that he
saw Dy.S.P Jossy Cherian (PW165) and police party getting down from the police
vehicle. K.C. Ramachandran (A8) was with the police party. K.C. Ramachandran (A8)
walked in front of the police party. The Dy.S.P and the police party followed him. When
they reached in front of the flower shop of Raveendran (A30), K.C. Ramachandran (A8)
pointed out that shop and stated that it was the flower shop. Then the police entered into
that shop and prepared mahazar. PW79 identified his signature in Ext.P61 mahazar. He
also identified K.C. Ramachandran (A8) in the court.
429. The evidence of Dy.S.P Jossy Cherian (PW165) and Pramod (PW79)
that Ext.P61 observation mahazar was prepared at 17.00 hours on 17.05.2012 cannot
be true. Dy.S.P Jossy Cherian (PW165) has stated on cross examination that it was in

200

the Court of the Judicial First Class Magistrate, Vatakara that K.C. Ramachandran (A8)
was produced after his arrest. The Magistrate in that court was absent on that day.
Therefore, K.C. Ramachandran (A8) was taken to the Court of the Judicial First Class
Magistrate, Kunnamangalam. PW165 has deposed that it was at about 18.30 hours on
that day that K.C. Ramachandran (A8) was produced in the Court of the Judicial First
Class Magistrate, Kunnamangalam. He would say that at about 19.00 hours police
custody of the accused was obtained. He has categorically stated that before 18.15
hours on that day K.C. Ramachandran (A8) was not obtained in police custody. PW165
has stated that K.C. Ramachandran (A8) had given statement to him in police custody.
He has stated that after getting K.C. Ramachandran (A8) in police custody, he did not
take that accused to anywhere for investigation. He would also say that after getting
K.C. Ramachandran (A8) in police custody, he had not prepared any mahazar.
430. Ext.C8 is the remand report filed by PW165 before the Magistrate in
respect of K.C. Ramachandan (A8) and three others. The endorsement of the learned
Magistrate on Ext.C8 remand report shows that it was at 18.00 hours on 17.05.2012 that
K.C. Ramachandran (A8) was produced before him by the police. However, the recital in
Ext.P61 mahazar is that after getting K.C. Ramachandran (A8) in police custody, he
gave a statement to PW165 that he would point out the shop and thereafter PW165
reached the flower shop of Raveendran (A30) with K.C. Ramachandran (A8) and
Ext.P61 mahazar was prepared at 17.00 hours on 17.05.2012. When Ext.C8 remand
report shows that the accused K.C. Ramachandran (A8) was produced before the
Magistrate only at 18.00 hours on 17.05.2012, it is not explained how Ext.P61
observation mahazar was prepared at 17.00 hours on that day after getting that accused
in police custody. PW165 has not satisfactorily explained this inconsistency. At the same

201

time, he would say that after getting the accused K.C. Ramachandran (A8) in police
custody, he had not prepared any mahazar. But, it is mentioned in Ext.P61 mahazar that
after getting the accused in police custody, the statement of that accused was recorded
and it was on the basis of that statement the Dy.S.P reached the flower shop and
prepared Ext.P61 mahazar at 17.00 hours on 17.05.2012. PW165 has no case before
the court that after the arrest of K.C. Ramachandran (A8) but before getting that
accused in police custody by the order of the Magistrate, he had prepared Ext.P61
mahazar. The records would clearly indicate that preparation of Ext.P61 mahazar at
17.00 hours on 17.05.2012 as pointed out by the accused K.C. Ramachandran (A8) is
not true. It is also to be noted that Ext.P61 mahazar allegedly prepared on 17.05.2012
was produced in the committal court only on 13.08.2012, that is, on the date of filing the
final report in the case.
(b) Conspiracy at Sameera Quarters on 10.04.2012
431. The next stage of conspiracy alleged by the prosecution was between
16.00 and 17.00 hours on 10.04.2012 at Sameera Quarters in Chokli. Pushparajan
(PW86) and Sajeendran (PW162) are the witnesses examined by the prosecution to
prove the conspiracy allegedly taken place at Sameera Quarters.
432. Pushparajan (PW86) has given evidence in examination-in-chief as
follows: He is a contractor of construction works. He had gone to Sameera Quarters at
16.00 hours on 10.04.2012 in search of workers. He reached near the room on the
southern side at the upstair portion of the building of Sameera Quarters. He saw that the
aforesaid room was closed. Thereafter, he went to the northern side of the building.
While going there, he saw a closed room. When he looked through the window of that

202

room, he saw persons inside it talking. A bald-headed person having beard and wearing
a white shirt was talking. Suni @ Kodi Suni (A3), Trouser Manojan (A11) and Anoop (A1)
and another person were also in the aforesaid room. When they saw him, they stopped
their conversation. He had seen a jeep and a motor cycle parked at the compound in
front of the Sameera Quarters. PW86 identified in the court the accused Anoop (A1),
Sunil Kumar (A3) and Manojan (A11). He also identified in the court K.C. Ramachandran
(A8) stating that it was the bald-headed person having a beard and wearing a white shirt
who was seen by him in the room. PW86 has also stated that he had previous
acquaintance with Kodi Suni (A3), Anoop (A1) and Trouser Manojan (A11). On
15.06.2012, at the office of the Dy.S.P, Vatakara, he had pointed out to the Dy.S.P the
bald-headed person who was wearing white shirt. Then, the police told him that the
name of the aforesaid person was K.C. Ramachandran.
433. PW86 has stated on cross examination that he is an activist of R.S.S.
He is an office-bearer of R.S.S. He has admitted that he was an accused in some cases
in which the allegation was that C.P.I(M) workers were murdered. He has also admitted
that he was an accused in the case relating to the murder of Maman Vasu and he was
convicted by the Sessions Court, Thalassery in that case and sentenced to life
imprisonment. PW86 has also stated that on appeal, the Hon'ble High Court acquitted
him. He has also stated that Maman Vasu was the local leader of C.P.I(M) and C.I.T.U.
PW86 would also admit that he was an accused in the case relating to the attempt made
to murder Sreedharan who was the M.L.A of Mahe.
434. Maman Vasu was a local leader of C.P.I(M). PW86 has conceded this
fact in the cross examination. PW86 was one of the accused in the case relating to the

203

murder of Maman Vasu. He has admitted that he was sentenced to imprisonment for life
in that case by the Sessions Court, Thalassery but in appeal, he was acquitted by the
High Court. He was in jail for two years in connection with that case. It is not safe to act
upon the testimony of such a witness that he saw K.C. Ramachandran (A8), a local
leader of C.P.I(M) in a room together with Anoop (A1) and Kodi Suni (A3). PW86 has
practically conceded in the cross examination that in Thalassery and Chokli areas
several incidents had occurred in which C.P.I(M) activists were murdered by R.S.S
workers and also R.S.S workers were murdered by C.P.I(M) activists. PW86 is
admittedly a local leader of R.S.S. The tendency of such a person to falsely implicate
persons belonging to opposite political faction on account of animosity cannot be ruled
out.
435. Sajeendran (PW162) is the other witness examined by the prosecution
to prove the meeting of K.C. Ramachandran (A8) with the other accused in Sameera
Quarters on 10.04.2012. PW162 has stated that on 10.04.2012, at about 17.00 hours,
while he was returning from the house of a friend and when he reached near Sameera
Quarters, he saw Kodi Suni (A3), driver Anoop (A1), Manojan (A11), Geothi Babu (A12)
and a bald-headed person wearing a white shirt and white dothi engaged in
conversation at the varanda of the second room at the upstair portion of the Sameera
Quarters. PW162 identified in the court the accused Sunil Kumar (A3), Manojan (A11),
Anoop (A1) and Geothi Babu (A12). He also identified the accused Ramachandran (A8)
in the court stating that he was the person seen by him on 10.04.2012 at the varanda of
the room in Sameera Quarters who was wearing a white shirt and white dothi.

204

436. PW162 has stated in the cross examination that he is a follower of


R.S.S. He was an accused in a criminal case charged by the police under section 307
I.P.C. He used to stand as surety for R.S.S and B.J.P workers in criminal cases.
437. PW162 is also a partisan witness. His evidence also stands on the
same footing as that of PW86. False implication of C.P.I(M) workers in the case by this
witness also on account of political enmity cannot be ruled out. It cannot be a
coincidence

that

the

two

witnesses

examined

to

prove

the

presence

of

K.C. Ramachandran (A8) and others at Sameera Quarters on two different occasions on
the same day are ardent activists of the R.S.S, who are friends. (PW86 has stated that
PW162 is his friend). Both of them are activists of R.S.S for the last 35 years. It is not
safe to act upon the testimony of these two witnesses who have reasons to swear
against activists of C.P.I(M).
( c ) Conspiracy at the House of Kunhanandan (A13) on 20.04.2012
438. The prosecution has alleged that on 20.04.2012, between 07.30 and
08.00 hours, K.C. Ramachandran (A8) and Manoj (A11) reached the house of
Kunhanandan (A13) at the place Parat and that accused 8, 11 and 13 then entered into
a conspiracy to annihilate T.P. Chandrasekharan. In order to prove this conspiracy, the
prosecution has examined the witness Babu (PW19).
439. Babu (PW19) is a carpenter by profession. He has given evidence in
examination-in-chief as follows: He used to go to Parat Town through the way in front of
the house of Kunhanandan (A13). He is married but he has no children. Therefore,
during every month, on the day of the birth-star of his wife, he used to go to Thiruvangad
temple. On 20.04.2012, at 07.45 hours, he was proceeding to the temple, through the

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way in front of the house of Kunhanandan (A13). At that time, he saw Trouser Manojan
(A11) and a person wearing a white dothi and having beard going to the house of
Kunhanandan (A13) on a bike. The person who was wearing the white dothi and having
beard was riding the motor cycle and Trouser Manojan (A11) was the pillion rider. PW19
identified in the court K.C. Ramachandran (A8) as the person who was seen by him
riding the motor cycle. PW19 also identified in the court Kunhanandan (A13) and
Trouser Manojan (A11). PW19 has stated on cross examination that in order to go to
Thiruvangad temple, he had to board the bus for Thalassery. The pooja conducted by
him on every day of the birth-star of his wife is 'Santhanagopala Pooja'. PW19 has also
stated that he was seeing the rider of the motor cycle for the first time in his life on that
day.
440. The main thrust of the cross examination of PW19 was to show that he
had many other ways to reach Parat Town from his house. PW19 has stated that the
easy way for him to reach Parat Town from his house is the way in front of the house of
Kunhanandan (A13). It is for the person who uses a way to decide which is the easy
way for him to reach a place. Shorter ways may not always be easy to walk on. It
depends upon the nature and condition of the way also. There is no sufficient ground to
disbelieve the evidence of PW19 that he used to go to Parat Town through the way in
front of the house of Kunhanandan (A13).
441. PW19 has admitted that he is a follower of R.S.S. He has also stated
that in the election he used to work as booth agent for B.J.P candidates. Political
allegiance of a witness, by itself, is not sufficient to discard his testimony. Nothing has
been brought out in the cross examination to find that PW19 had any enmity towards the

206

accused K.C. Ramachandran (A8), Manojan (A11) or Kunhanandan (A13). There is no


reason for him to perjure against these accused.
442. Identification of the accused K.C. Ramachandran (A8), Manojan (A11)
and Kunhanandan (A13) by PW19 in the court is reliable and trustworthy. Manojan (A11)
and Kunhanandan (A13) were persons well-known to him. It is true that PW19 had seen
K.C. Ramachandran (A8) only on the relevant day. But, it was in broad day light.
Identification of K.C. Ramachandran (A8) by PW19 in the court can be accepted as
reliable and trustworthy.
443. PW19 has stated that the birth-star of his wife is 'Revathi'. The defence
does not dispute the fact that it was 'Revathi' on 20.04.2012.
444. DW4 was examined by the defence to impeach the creditworthiness of
PW19. DW4 is the Executive Officer of Thiruvangad temple. At the instance of the
defence, copy of the list showing the details of the vazhipadu (offerings) being
conducted in that temple was produced by DW4 and it was marked as Ext.D39. DW4
has given evidence that there is no pooja by name 'Santhanagopala Pooja' being
conducted in Thiruvangad Sree Rama Temple.
445. PW19 has stated on cross examination that 'Santhanagopala Pooja' is
only a vazhipadu conducted by him. Though he would describe the name of the
vazhipadu conducted by him as 'Santhanagopala Pooja', it only means that it is an
offering or pooja conducted on his behalf for being blessed with a child. Therefore, the
evidence of DW4 that there is no pooja by name 'Santhanagopala Pooja' in Thiruvangad
Sree Rama Temple does not discredit the testimony of PW19. Ext.D39 list shows that
there is a pooja by name 'Dhampathi Pooja' in the Thiruvangad Sree Rama Temple and

207

that it is an offering made to 'Lord Siva'. DW4 would say that Kizhakedam Siva Temple is
also included in the temple complex of Sree Rama Swami Temple. DW4 has also stated
that 'Dhampathi Pooja' is a vazhipadu conducted for happy married life and for having
children. The essence of the evidence of PW19 is only that he used to go to
Thiruvangad temple for conducting vazhipadu for having children. The evidence of DW4
and Ext.D39 document do not in any way discredit his testimony in that regard.
446. The evidence of PW19 shows that there was a meeting of the accused
K.C. Ramachandran (A8), Manojan (A11) and Kunhanandan (A13) on the morning of
20.04.2012 at the house of Kunhanandan (A13) at the place Parat.
447. The prosecution has alleged that on the morning of 20.04.2012,
Kunhanandan (A13) contacted P. Mohanan (A14) by calling him to the mobile phone
number 9495804804 from the mobile phone having the number 9747170471 which
belonged to K.C. Ramachandran (A8) and confirmed the plan of murdering
T.P. Chandrasekharan.
448. The mobile phone having the SIM card number 9495804804 belongs to
P. Mohanan (A14). Ext.P327 document proves this fact. It is also a fact admitted by
P. Mohanan (A14) during the examination under section 313 Cr.P.C. Ext.P329 is the call
data record of the number 9495804804 certified by the Nodal Officer of B.S.N.L
(PW158). Ext.P329 shows that on 20.04.2012, at 07.56.59 hours, there was a call from
the number 9747170471 to the number 9495804804. Ext.P226 is the call data record of
the number 9747170471 certified by the Nodal Officer of Idea Cellular Company
(PW151). Ext.P226 shows that on 20.04.2012, at 07.57 hours, there was a call from the
number 9747170471 to the number 9495804804 having the duration of 57 seconds and

208

the tower location of the number 9747170471 at that time was Parat. But, there is no
evidence to show that K.C. Ramachandran (A8) was using the SIM card having the
number 9747170471.
(d) Conspiracy at the House of Kunhanandan (A13) on 24.04.2012
449. It is alleged by the prosecution that on 24.04.2012, at about 12 noon,
accused 2, 3, 5 and 7 reached the house of Kunhanandan (A13) at Parat in the car
KL-59/B 5151 which was driven by Rafeek (A18) and that accused 2, 3, 5, 7 and 13
conspired together and designed the plan to murder T.P. Chandrasekharan. Valsan
(PW20) is the witness examined by the prosecution to prove the conspiracy alleged to
have been hatched on 24.04.2012.
450. Valsan (PW20) is a fish vendor. He sells fish by travelling on M-80
vehicle. The number of that vehicle is KL-13/F 4730. PW20 has given evidence in
examination-in-chief as follows: He used to go to Parat Town through the road in front of
the house of Kunhanandan (A13). On 24.04.2012 he did not go for selling fish because
his vehicle was under repair. He had given the vehicle for repair on 23.04.2012. On
24.04.2012, at 11.00 hours, he went to the work shop to get back the vehicle. It was
through the road in front of the house of Kunhanandan (A13) that he proceeded to the
work shop. When he reached in front of the house of Kunhanandan (A13), the time was
about 11.30 hours. He saw a red Tata Sumo car in front of the house of Kunhanandan
(A13) at the north-western side of that house. The number of the car was KL-59/B 5151.
A person was standing there leaning on the car. PW20 proceeded further. Then he saw
Kunhanandan (A13), Kodi Suni (A3) and driver Manoj (A11) and two other persons
coming to the gate of the house. Kunhanandan (A13) was talking something to the

209

others. He heard Kunhanandan (A13) saying Now, everything shall be as stated, T.P.
shall be killed, he shall not be allowed to go further. PW20 came to know subsequently
that the person who was standing there by leaning on the car was Vazhapadachi Rafeek
(A18). Kodi Suni (A3) was a person known to him. PW20 identified in the court
Kunhanandan (A13), Anoop (A1) and Muhammed Shafi (A5). PW20 has deposed that
he could not identify in the court the other persons seen by him on 24.04.2012.
451. PW20 has stated on cross examination that he was a candidate of B.J.P
in the Panchayath election. His wife was also a candidate of B.J.P in the Panchayath
election in the year 2005. The fact that he is a person belonging to B.J.P is not a
sufficient ground to discard his evidence. However, on a close scrutiny of his evidence it
can be found that his testimony is not at all reliable and trustworthy. The prosecution has
no case that the accused Anoop (A1) had met Kunhanandan (A13) at his house at Parat
on 24.04.2012. However, PW20 has identified Anoop (A1) also as one of the persons
who was seen by him alongwith Kunhanandan (A13) on that day. Kodi Suni (A3) is said
to be a person previously known to him. But PW20 failed to identify Kodi Suni (A3) in the
court. PW20 had sufficient time to clearly see the person who was leaning on the car. He
would say that subsequently he came to know the name of that person as Rafeek.
PW20 failed to identify Rafeek (A18) also in the court. In these circumstances, it is not
safe to place implicit reliance upon the testimony of PW20.
452. As per the records, the statement of PW20 was recorded by the
investigating officer on 30.05.2012. However, PW20 has admitted on cross examination
that he had given statement to the police that it was when he came to know about
the arrest of Kunhanandan (A13), Kodi Suni (A3), Anoop (A1) etc. in the

210

T.P. Chandrasekharan murder case that he realised that the matter they were talking on
24.04.2012 was about the murder of T.P. Chandrasekharan. However, on the date of
recording the statement of PW20 by the police the aforesaid persons had not been
arrested. This also creates suspicion on the testimony of PW20 that he saw some
persons alongwith Kunhanandan (A13) at the gate of his house on the morning of
24.04.2012. Moreover, the evidence of DW1, the owner of the work shop where PW20
had allegedly given his vehicle for repair, shows that PW20 had never given his vehicle
for repair in that workshop.
Payment of Money to Anoop (A1) by K.C. Ramachandran (A8)
453. It is alleged by the prosecution that on the evening of 24.04.2012,
K.C. Ramachandran (A8) gave Rs. 10,000/- to Anoop (A1) at Sameera Quarters as the
first

instalment

of

the

money

for

accomplishing

the

plan

of

murdering

T.P. Chandrasekharan. The prosecution has not adduced any evidence to prove
payment of Rs. 10,000/- by K.C. Ramachandran (A8) to Anoop (A1) on 24.04.2012.
454. It is further alleged by the prosecution that on the morning of
25.04.2012, at the place Pallikkuni, K.C. Ramachandran (A8) gave a further amount of
Rs. 40,000/- to Anoop (A1) for executing the plan of murdering T.P. Chandrasekharan.
Prakasan (PW48) is the witness examined by the prosecution to prove this allegation.
455. Prakasan (PW48) has given evidence in examination-in-chief as follows:
Bhaskaran (CW94) is his friend. He had told Bhaskaran that his property at the place
Kariyad is to be sold and a person has to be arranged for buying it. On 25.04.2012, at
06.00 hours, Bhaskaran called him and asked whether the property at Kariyad could be
seen. Then he told Bhaskaran that he would reach Pallikkuni. Bhaskaran also agreed

211

that he would reach there. PW48 reached Pallikkuni at about 06.30 hours. By that time,
Bhaskaran had reached there at Pallikkuni Junction. PW48 and Bhaskaran stood there
talking with each other. Then they saw K.C. Ramachandran (A8) talking with a person
who was sitting on a motor cycle. They saw K.C. Ramachandran (A8) taking a paper
packet from his waist and giving it to the person sitting on the motor cycle. The person
who was sitting on the motor cycle opened the packet and counted the currency notes in
it. Thereafter, K.C. Ramachandran (A8) left the place on his motor cycle. The person
who was sitting on the motor cycle also left the place. Subsequently, on 16.06.2012, at
the S.I.T camp office, PW48 identified the person who was seen by him sitting on the
motor cycle and who received money from K.C. Ramachandran (A8). Then the police
told him that the name of the aforesaid person was Anoop (A1). PW48 identified
K.C. Ramachandran (A8) and Anoop (A1) in the court.
456. It has come out in the cross examination of PW48 that he had earlier
worked in the C.P.I(M). He was either expelled from that party or he had left it. He was a
local committee member of the C.P.I(M) for about 10-15 years. PW48 denied the
suggestion that he is the local committee secretary of R.M.P in Azhiyoor.
457. The evidence of PW48 shows that he is very much reluctant to admit
that he is an activist of R.M.P. He would even say that he does not know whether his
friend Bhaskaran is a local committee secretary of R.M.P. He would even say that the
amount of the currency notes given by K.C. Ramachandran (A8) to Anoop (A1) would
come about

Rs. 40,000/-. He would even say that there were about 10 to 20 currency

notes of five hundred rupee denomination and 10 to 30 currency notes of thousand


rupee denomination in the packet given by K.C. Ramachandan (A8) to Anoop (A1). On a

212

reading of the testimony of PW48 as a whole, it can be seen that it is very much
artificial. His testimony does not inspire confidence.
458. PW48 has stated on cross examination that on 25.04.2012, Bhaskaran
had called him to his mobile phone number 9497651293 for talking about the property to
be sold. PW48 has specifically stated that on 25.04.2012, at 06.00 hours, Bhaskaran
called him and asked him whether his property at Kariyad could be seen. Ext.D28 is the
call data record of the number 9497651293 certified by the Nodal Officer of B.S.N.L
(PW158). Ext.D28 shows that on 25.04.2012, there were only two calls and both of them
were incoming calls to the number 919497651293. The calls were at 16.31.33 hours and
17.32.49 hours on 25.04.2012. There was no call on the morning of 25.04.2012 to the
number 9497651293. Therefore, the evidence of PW48 that on the morning of
25.04.2012, Bhaskaran called him to his mobile phone number 9497651293 and asked
whether he could see the property to be sold cannot be true. Then, the evidence of
PW48 that he reached Pallikkuni Junction to meet Bhaskaran at about 06.30 hours on
that day also cannot be accepted as true.

Therefore, his testimony that he saw

K.C. Ramachandran (A8) handing over money to Anoop (A1) is only to be rejected as
unreliable.
Speech of K.K. Krishnan (A10)
459. A speech alleged to have been made by K.K. Krishnan (A10) in a
meeting is projected by the prosecution as manifestation of the feelings of acute hatred
and

hostility

which

the

local

leaders

of

C.P.I(M)

had

entertained

towards

T.P. Chandrasekharan. Achuthan (PW6) is the witness examined by the prosecution to


prove this allegation.

213

460. Achuthan (PW6) has given evidence in examination-in-chief as follows:


He is conducting a tailoring shop in a rented room at Kunnummekara Junction.
K.C. Ramachandran (A8) was in jail in a case registered in relation to the attack made
by C.P.I(M) activists on Balan and other R.M.P workers. When K.C. Ramachandran (A8)
was released from jail in that case on bail, the C.P.I(M) gave him a reception. It was
conducted at the varanda of the vacant room on the opposite side of his shop.
K.K. Krishnan (A10) made a speech in that meeting. During the speech, K.K. Krishnan
(A10) stated that Chandrasekharan shall be laid draped in white cloth and that his brain
would be found on the road strewn like a coconut flower. PW6 identified
K.C. Ramachandran (A8) and K.K. Krishnan (A10) in the court.
461. Nothing has been brought out in the cross examination which would
discredit the testimony of PW6 regarding the speech made by K.K. Krishnan (A10). The
omissions in the testimony of PW6 do not relate to the core of the matter and they are
not material. What is suggested in the cross examination of PW6 is that K.K. Krishnan
(A10) had acted as a mediator in the dispute between him (PW9) and Vijayan who was
earlier conducting the tailoring shop and that the decision taken by K.K. Krishnan (A10)
in that mediation was against PW9 and therefore, he (PW9) was on inimical terms with
K.K. Krishnan (A10). This allegation remains as such without any basis.
462. It is pointed out by the defence that PW6 had not stated to the police
that he saw the reception meeting or heard the speech of K.K. Krishnan (A10) and it is a
vital omission. The defence has no case that PW6 has not stated to the police that
K.K. Krishnan (A10) made a speech. The meeting was in front of the tailoring shop of
PW6, on the opposite side of the road. Necessarily, when PW6 says that K.K. Krishnan

214

(A10) made the speech, it means that he had heard the speech which was made on the
opposite side of the road in front of his shop. Any other interpretation would be
hypertechnical and an unrealistic way of testimonial appraisal.
463. The evidence of PW6 proves that K.K. Krishnan (A10) had made a
public speech and that he stated in that speech that body of Chandrasekharan shall be
laid draped in white cloth and that his brain would be found strewn like a coconut flower.
464. The speech made by K.K. Krishnan (A10) as mentioned above does not
necessarily mean that he was one of the conspirators. But, more important is the fact
that the speech of K.K. Krishnan (A10) indicates the motive for the murder of
T.P. Chandrasekharan. The speech made by K.K. Krishnan (A10) indicates that the local
leaders of C.P.I(M) had acute hatred towards T.P. Chandrasekharan.
Motive of Murder Testimony of Rema (PW5)
465. Rema (PW5) is the wife of T.P. Chandrasekharan. Her evidence gives a
clear picture of the political background of her husband. Her testimony also reveals the
reasons for the grudge and hatred entertained by some of the local leaders of C.P.I(M)
towards her husband and the motive for his murder.
466. The testimony of PW5 reveals that T.P. Chandrasekharan was a worker
of 'Balasangham', the child unit of C.P.I(M). Later he became the District President of
Students Federation of India (S.F.I), the students unit of C.P.I(M). He had also adorned
the posts of the District Secretary, State Joint Secretary and Member of Central
Committee of S.F.I. He became a Branch Secretary of C.P.I(M) at the age of 18. He had
worked as the District President, District Secretary and member of State Secretariat of
the Democratic Youth Federation of India (D.Y.F.I), the youth organization of C.P.I(M). He

215

was the Secretary of the Eramala unit of the C.P.I(M). Thereafter, he became a member
of the Onchiyam Area Committee of C.P.I(M). He left C.P.I(M) on account of differences
on ideological issues and formed R.M.P in June, 2008. (The defence would contend that
he did not leave C.P.I(M) but he was expelled from that party). The new party had its
followers who had earlier worked in the C.P.I(M). T.P. Chandrasekharan was the Area
Secretary of R.M.P. He contested the Lok Sabha Election in the year 2009 from
Vatakara constituency. P. Sathidevi was the candidate of C.P.I(M) and Mullappally
Ramachandran was the candidate of Congress Party in the election in that constituency.
As R.M.P had no approved symbol, T.P. Chandrasekharan had contested the election as
an independent candidate. He obtained more than 20000 votes in that election. It is only
probable that persons who were earlier workers of C.P.I(M) had cast their vote for him.
Whatever it be, the candidate of C.P.I(M) was defeated and the Congress candidate was
elected from Vatakara constituency. The prosecution contends that it was for the first
time in history that the left-oriented group lost the Vatakara constituency in the Lok
Sabha elections. It is axiomatic that defeat of the C.P.I(M) candidate in the election
would have sown grudge against

T.P. Chandrasekharan in the minds of the leaders of

that party because his presence in the election as a candidate was a major factor which
might have contributed to the defeat of their candidate. P. Mohanan (A14) was the Chief
Election Agent of the C.P.I(M) candidate in that election in Vatakara constituency.
P. Mohanan (A14) is a local leader of C.P.I(M). On the eve of the election day,
P. Mohanan (A14) was attacked allegedly by R.M.P workers. Subsequently, clashes
occurred at various places between the workers of R.M.P and C.P.I(M). T.P. Balan, a
worker

of

R.M.P

was

attacked

and

attempt

was

made

to

murder

him.

K.C. Ramachandran (A8) was an accused in that case. The formation of the new party

216

by T.P. Chandrasekharan had its echoes in the Panchayath election also. In the
Panchayath election held in the year 2010, C.P.I(M) lost power in the Onchiyam
Panchayath and R.M.P gained power. The C.P.I(M) also suffered major setback in
Azhiyoor, Eramala and Chorode Panchayaths. This enraged and infuriated the local
leaders of C.P.I(M). Their animosity towards T.P. Chandrasekharan became acute. The
prosecution has alleged that it led to the conspiracy to murder him and ultimately, to the
execution of the plan to annihilate him.
467. Admittedly, T.P. Chandrasekharan had ceased to be a member of the
C.P.I(M). It is immaterial whether he left the party or he was expelled from the party.
Admittedly, he formed a new party as R.M.P in the year 2008. He was a candidate in the
Lok Sabha election from Vatakara constituency. The C.P.I(M) candidate was defeated in
that election. It was the Congress party candidate who was elected from Vatakara
constituency. T.P. Chandrasekharan had got more than 20000 votes in that election.
P. Mohanan (A14) was the Chief Election Agent of the C.P.I(M) candidate in the
Vatakara constituency. On the eve of the election, an attack was made on him, allegedly
by R.M.P workers. Clashes occurred at various places between the workers of R.M.P
and C.P.I(M). In the Panchayath elections held in the year 2010, R.M.P ascended to
power and C.P.I(M) lost power in Onchiyam Panchayath. C.P.I(M) suffered major
setback in the elections in the Azhiyoor, Eramala and Chorode Panchayaths. There
cannot be any dispute with regard to these facts which find a place in the testimony of
PW5.
468. PW5 has stated on cross examination that prior to the murder of her
husband, the C.P.I(M) had conducted a procession in front of her house and in that

217

procession, C.H. Asokan (A9), K.K. Krishnan (A10) and K.C. Ramachandran (A8) had
shouted slogans that Chandrasekhara, you shall be laid draped in white cloth. PW5
would say that she saw that procession and heard the aforesaid persons shouting the
slogan. Her evidence regarding such an incident is an improvement made in the cross
examination. She had not given statement to the police regarding such an incident. Her
testimony in that regard cannot be accepted as reliable and trustworthy.
469. The evidence of PW5 and PW6 proves that at least the local leaders of
C.P.I(M)

in

Onchiyam

and

its

precincts

had

grudge

and

hatred

towards

T.P. Chandrasekharan. They had acute and intense political animosity towards him. This
can certainly be considered as motive for entertaining the idea to annihilate him.
Use of SIM Card 9747170471 by K.C. Ramachandran (A8)
470. The case of the prosecution is that K.C. Ramachandran (A8) had used
the SIM card 9747170471 to achieve the plan of executing the murder of
T.P. Chandrasekharan.
471. According to the prosecution case, Vijesh (PW14) had obtained the SIM
card 9747170471 in the name of his mother Suseela and handed over it to the accused
Shaji E.M (A23) who in turn entrusted it with K.C.Ramachandran (A8). This court has
acquitted Shaji E.M (A23) under section 232 Crl.P.C. Learned counsel for the accused
would contend that acquittal of Shaji E.M (A23) has shaken the very foundation of the
prosecution case regarding the use of the SIM card 9747170471 by K.C.Ramachandran
(A8). There is no force in this submission. Acquittal of Shaji E.M (A23) under section 232
Crl.P.C only means that there was no evidence at all to find that he had obtained the
aforesaid SIM card from Vijesh (PW14) and entrusted it with K.C.Ramachandran (A8). It

218

does not mean that K.C.Ramachandran (A8) has not used that SIM card. The
prosecution is not precluded from proving the use of the aforesaid SIM card by
K.C.Ramachandran (A8) by adducing other evidence.
472. In my view, use of a particular SIM card by an accused can be proved
by the prosecution by six modes: (1) Evidence can be adduced to prove that the
subscriber of the SIM card is the accused (2) Evidence can be adduced to prove that
the subscriber of the SIM card had given it to the accused (3) Evidence can be
adduced to prove that the SIM card was used in the mobile phone owned or possessed
by the accused. This is because the call data record of the relevant number would
disclose the IMEI number of the mobile phone in which it is used. (4) Evidence can be
adduced to prove that other persons occasionally used to call the accused to a
particular number. (5) Though practically very difficult, evidence can be adduced to
prove that other persons have seen the accused using a particular mobile phone
having a specific IMEI number and then use of the SIM card in that mobile phone can
be proved by the call data record (6) Evidence in the form of admission of the accused
regarding the use of a specific SIM card or mobile phone.
473. In the instant case, K.C.Ramachandran (A8) is not the subscriber of the
SIM card 9747170471.There is also no admission by him that he had used that SIM
card. There is also no evidence of the use of the SIM card 9747170471 by
K.C. Ramachandran (A8) by inserting that SIM card in a particular mobile phone having
a specific IMEI number. There is also no evidence that he owned or possessed any
mobile phone in which the SIM card 9747170471 was used.

219

474. Vijesh (PW14) did not support the prosecution. He turned hostile to the
prosecution. He has even denied obtaining the SIM card in the name of his mother
Suseela. Ext.P13 is the application alleged to have been given by Suseela, the mother
of PW14, to Idea Cellular Company to obtain the aforesaid SIM card. PW14 has
admitted that Ext.P13 application bears the photo of his mother. It is seen from Ext.P13
application that it was made to the distributor by name Star Communication. PW76
Subeesh is the person who conducts the shop by name Star Communication. PW76
has given evidence that Ext.P13 application was received in his shop and the SIM card
bearing the number 9747170471 was allotted on the basis of that application. Suseela,
the mother of Vijesh (PW14), was not cited or examined by the prosecution. However,
the evidence of PW14 and PW76 is sufficient to find that the SIM card 9747170471
was allotted and mobile phone service connection was given in the name of Suseela,
the mother of PW14, on the basis of Ext.P13 application made by her in the shop of
PW76. But, there is absolutely no evidence to find that Vijesh (PW14) gave the
aforesaid SIM card to K.C.Ramachandran (A8) either directly or through any other
person.
475. It is true that Vijesh (PW14) had made two statements (Exts.P15 and
P16) under section 164 Cr.P.C before the Judicial First Class Magistrate, Payyoli and in
those statements he had admitted that he had obtained a SIM card in the name of his
mother and he had given it to E.M. Shaji (A23) and also that E.M. Shaji had told him
that he had given the aforesaid SIM card to Ramachandran (A8) and it was used for
facilitating the murder of T.P. Chandrasekharan. Vijesh (PW14) has admitted before this
court that he had made such statements before the Magistrate but he would say that he

220

made such statements before the Magistrate on account of threat from the police. It is
the settled position that statement of a witness under section 164 Cr.P.C is not
substantive evidence. Such a statement can be used only for corroboration of the
testimony of that witness as provided in Section 157 of the Evidence Act or for
contradicting the evidence in the manner provided in Section 145 of the Evidence Act.
When there is no evidence given by the witness in support of the prosecution, there is
no question of corroboration of the testimony of such a witness with the aid of the
statement given by him under section 164 Crl.P.C . It is an entirely different question
whether the witness could be prosecuted for committing the offence of perjury. The
prosecution has already filed application before this court to initiate prosecution against
Vijesh (PW14) for committing the offence of perjury. The merits of that application shall
be considered in separate proceedings.
476. Raveendrababu (PW26) was examined by the prosecution to prove that
K.C. Ramachandran (A8) used to call him from the mobile phone connection number
9747170471. PW26 has admitted that K.C. Ramachandran (A8) used to call him over
mobile phone to his mobile phone and he also used to contact K.C. Ramachandran
(A8) through mobile phone. But, PW26 has deposed that he could not say whether the
mobile phone number of K.C. Ramachandran (A8) to which he had contact was
9747170471.
477. PW26 has stated that his cell phone number was 8547591124.
Ext.P226 is the call data record of the number 9747170471. It shows that only two calls
had been made from the number 9747170471 to the number 8547591124, one on
28.4.2012 and the other on 30.4.2012. As these two calls were incoming calls from the

221

number 9747170471 to the cell phone number of PW26, it cannot be found that it was
the number of K.C. Ramachandran (A8) which PW26 used to contact with. Ext.P226
does not reveal any calls made from the number of PW26 to the number 9747170471.
It means that PW26 had never contacted K.C. Ramachandran (A8) in the number
9747170471.
478. In the aforesaid circumstances, the prosecution has not been able to
prove use of the SIM card 9747170471 by K.C. Ramachandran (A8).
SIM Cards Used by Anoop (A1) and Sunil Kumar (A3)
479. According to the prosecution, the SIM card 9544097009 was used by
Anoop (A1). Ext.P233 is the application and Ext.P234 is the copy of the proof of identity
given to Idea Cellular Company for obtaining SIM card. Ext.P233 shows that it was in
the name of one Shimjith S/o Balan that SIM card 9544097009 was issued. However,
there is evidence to show that this SIM card was used by Anoop (A1). Dy.S.P Santhosh
(PW166) has given evidence that MO66 mobile phone was seized from the possession
of Ajesh Kumar (PW74) who is the brother of Anoop (A1) as per Ext.P58 mahazar.
Ajesh Kumar (PW74) has not supported the prosecution. He has stated that he had not
produced before the police the mobile phone which was used by his brother Anoop
(A1). However, PW74 admitted his signature in Ext.P58 mahazar. He has signed
Ext.P58 mahazar as the person who produced the mobile phone. He has stated on
cross examination that it was in a blank paper that he signed. He would say that when
Anoop (A1) was arrested, Circle Inspector Benny (PW163) had asked him to come to
Vatakara and his signature was obtained in a paper.

222

480. When the witnesses have admitted subscribing their signature to the
seizure mahazar and when they have not made any complaint or representation to the
concerned authorities raising an allegation that the police had obtained their signatures
on blank papers, it can be found that they have duly affixed their signatures on the
seizure mahazar (See Gajraj Vs. State : 2012 Cri.L.J 413 (SC) (Paragraph -12).
481. The evidence of PW74 that he signed only in a blank paper cannot be
accepted as true. He has stated that normally he does not put signature in any blank
paper. He has not given any complaint to any person that he was compelled to sign
blank paper at the police station or anywhere else. He is the brother of Anoop (A1). One
cannot expect him to support the prosecution. In these circumstances, it can be found
that he had signed Ext.P58 mahazar knowing its contents. It is mentioned in Ext.P58
mahazar that the mobile phone (MO66) was produced by him before the police stating
that it was the mobile phone used by his brother Anoop (A1). Ext.P58 mahazar as well
as the evidence of PW166 shows that the I.M.E.I number of the mobile phone seized
was 35531504903050. Ext.P236 is the call data record of the SIM card 9544097009
certified by the Nodal Officer (PW151) of Idea Cellular Company. The I.M.E.I number
shown in Ext.P236 is 35531504903050. In these circumstances, a reasonable inference
can be made that the SIM card 9544097009 was being used by Anoop (A1) by inserting
it in MO66 mobile phone which was seized by PW166 from Ajesh Kumar (PW74), the
brother of Anoop (A1), as per Ext.P58 mahazar.
482. Ext.P211 is the application and Ext.P212 is the copy of the proof of
identity given to Airtel Company for obtaining SIM card. It is seen that on the basis of
these documents the SIM card 9567890119 was issued in the name of Anoop (A1).

223

However, the case of the prosecution is that this SIM card was being used not by Anoop
(A1) but it was used by Sunil Kumar @ Kodi Suni (A3). There is no concrete evidence to
prove that it was used by Kodi Suni (A3) and not by Anoop (A1). But, the call data
records of the SIM card 9544097009 and 9567890119 would show that there was
frequent communication between these two numbers. This would suggest that the SIM
card 9567890119 was used by Sunil Kumar @ Kodi Suni (A3) and not by Anoop (A1). It
is to be noted that the SIM card 9544097009 was being used by Anoop (A1). It is not
probable that he was using both SIM cards at the same time. It does not make much
difference as far as the calls, if any, made to this number from the mobile phone number
of A8, A11, A12 and A13 are concerned. The reason is that both Anoop (A1) and Sunil
Kumar (A3) were members of the gang of assailants. Ext.P213 is the call data record of
the SIM card 9567890119 which is certified by the Nodal Officer (PW150) of Airtel
Company.
SIM Cards Used by Other Accused
483. Ext.P249 is the application and Ext.P250 is the copy of the proof of
identity given to the Idea Cellular Company for obtaining SIM card. It is seen that on the
basis of these documents the SIM card 9947212020 was issued in the name of Manoj
Kumar @ Kirmani Manoj (A2). Ext.P252 is the call data record of the SIM card
9947212020 certified by the Nodal Officer (PW151) of the Idea Cellular Company.
484. Ext.P245 is the application and Ext.P246 is the copy of the proof of
identity submitted to the Idea Cellular Company for obtaining SIM card. It is seen that on
the basis of these documents the SIM card 9544785375 was issued in the name of

224

T.K. Rajeesh (A4). Ext.P248 is the call data record of the SIM card 9544785375 certified
by the Nodal Officer (PW151) of Idea Cellular Company.
485. Ext.P241 is the application and Ext.P242 is the copy of the proof of
identity submitted to the Idea Cellular Company for obtaining SIM card. It is seen that on
the basis of these documents the SIM card 9562681111 was issued in the name of
Muhammed Shafi (A5). Ext.P244 is the call data record of the SIM card 9562681111
certified by the Nodal Officer (PW151) of Idea Cellular Company.
486. Ext.P268 is the application given by Vasantha (PW109), the mother of
Sijith (A6) for obtaining SIM card from the Vodafone Company. PW109 has admitted that
it is her address which is shown in Ext.P268 application. However, she would say that it
is not her photograph in that application. She has admitted that Ext.P117 is the copy of
her election identity card. She would say that the SIM card 9539481806 was not issued
to her on the basis of the application given by her. But on cross examination by the
counsel for Sijith (A6) she has admitted that she had given application to Vodafone
Company for obtaining SIM card. There cannot be any doubt with regard to the fact that
Ext.P268 is the application given by PW109 for obtaining SIM card from the Vodafone
Company. It can be seen that on the basis of this application the SIM card 9539481806
was issued to her.
487. There is evidence to show that the SIM card 9539481806 was used by
the accused Sijith (A6). Circle Inspector V.V. Benny (PW163) has given evidence that
Sijith (A6) gave a statement that if he was taken, he would point out and on the basis of
that statement and as led by Sijith (A6), he reached near the room in which the brother
of Sijith (A6) was residing in Mysore and then Sijesh, the brother of Sijith (A6) produced

225

before him a mobile phone (MO95) and he seized it as per Ext.P43 mahazar. Of course,
PW163 has not given evidence that Sijith (A6) had stated that he would point out the
mobile phone. It is difficult to admit the evidence regarding the recovery of the mobile
phone under section 27 of the Evidence Act. However, the evidence of PW163 proves
the conduct of Sijith (A6) taking the police party to the residence of his brother Sijesh in
Mysore. The evidence of PW163 also proves that Sijesh, the brother of Sijith (A6)
produced before him a mobile phone (MO95) and that he seized it as per Ext.P43
mahazar. PW52 Nithun and PW53 Renil are the attestors to Ext.P43 mahazar. They
admitted their signature in that mahazar. However, they would say that they did not see
Sijesh producing any mobile phone before the police. But, there is no reason to
disbelieve the evidence of PW163 that he seized MO95 mobile phone produced by
Sijesh as per Ext.P43 mahazar. The I.M.E.I number of the mobile phone seized from the
brother of Sijith (A6) is 35699404759083. This I.M.E.I number is recorded in Ext.P270
call data record of the SIM card 9539481806. In these circumstances, reasonable
inference can be made that the SIM card 9539481806 was being used by Sijith (A6).
488. According to the prosecution case, the SIM card 9526291825 issued in
the name of one Jijin Rajan had been used by the accused Shinoj (A7). There is no
evidence to prove this allegation. There is no evidence to find that this SIM card was
used by Shinoj (A7).
489. Ext.P308 is the application and Ext.P309 is the copy of the identity proof
given to B.S.N.L for obtaining SIM card. It is seen that on the basis of these documents
the SIM card 9447543963 was issued in the name of K.C. Ramachandran (A8). He has
admitted in the statement under section 313 Cr.P.C that the aforesaid SIM card is in his

226

name. Ext.P310 is the call data record of the SIM card 9447543963 certified by the
Nodal Officer (PW158) of the B.S.N.L.
490. Ext.P315 is the application and Ext.P316 is the copy of the identity proof
given to B.S.N.L for obtaining SIM card. It is seen that on the basis of these documents
the SIM card 9495260673 was issued in the name of V. Manojan (A11). Ext.P317 is the
call data record of the SIM card 9495260673 certified by the Nodal Officer (PW158) of
the B.S.N.L.
491. There is further evidence to show that the SIM card 9495260673 was
used by Manojan (A11). When he was arrested by Circle Inspector V.V. Benny (PW163),
the mobile phone (MO65) found in his possession was seized as per Ext.P152 mahazar.
PW163 has given evidence regarding the seizure of the mobile phone (MO65) from the
possession of Manojan (A11). The I.M.E.I number of this mobile phone is
35977104324169. This is the I.M.E.I number seen recorded in Ext.P317 call data record
of the SIM card 9495260673.
492. Ext.P312 is the application and Ext.P313 is the copy of the identity proof
given to B.S.N.L for obtaining SIM card. It is seen that on the basis of these documents
the SIM card 9447688670 was issued in the name of Geothi Babu (A12). Ext.P314 is
the call data record of the SIM card 9447688670 certified by the Nodal Officer (PW158)
of the B.S.N.L.
493. Ext.P302 is the application and Ext.P303 is the copy of the identity proof
given to B.S.N.L for obtaining SIM card. It is seen that on the basis of these documents
the SIM card 9447642688 was issued in the name of Kunhanandan (A13). Ext.P304 is

227

the call data record of the SIM card 9447642688 certified by the Nodal Officer (PW158)
of the B.S.N.L.
494. Ext.P327 is the application and Ext.P328 is the copy of the identity proof
given to B.S.N.L for obtaining SIM card. It is seen that on the basis of these documents
the SIM card 9495804804 was issued in the name of P. Mohanan (A14). He has
admitted in the statement under section 313 Cr.P.C that the aforesaid SIM card is in his
name. Ext.P329 is the call data record of the SIM card 9495804804 certified by the
Nodal Officer (PW158) of the B.S.N.L.
495. The particulars regarding the use of SIM cards can be shown as in the
table below:

Name of Accused

SIM Card

Service
Provider

Call Data
Records

Nodal
Officer

Anoop (A1)

9544097009

Idea

Ext.P236

PW151

Manoj Kumar @ Kirmani Manoj (A2)

9947212020

Idea

Ext.P252

PW151

Sunil Kumar @ Kodi


Suni (A3)

9567890119

Airtel

Ext.P213

PW150

T.K. Rajeesh (A4)

9544785375

Idea

Ext.P248

PW151

Muhammed Shafi (A5)

9562681111

Idea

Ext.P244

PW151

Sijith (A6)

9539481806

Vodafone

Ext.P270

PW152

K.C.Ramachandran(A8)

9447543963

B.S.N.L

Ext.P310

PW158

228

V. Manojan (A11)

9495260673

B.S.N.L

Ext.P317

PW158

Geothi Babu (A12)

9447688670

B.S.N.L

Ext.P314

PW158

Kunhanandan (A13)

9447642688

B.S.N.L

Ext.P304

PW158

P. Mohanan (A14)

9495804804

B.S.N.L

Ext.P329

PW158

Conspiracy Whether Proved ?


496. The prosecution has no case that P. Mohanan (A14) had contacted
any of the accused among A1 to A7. The conspiracy alleged to have been hatched at
the flower shop of Raveendran (A30) is not proved by the prosecution. There is no other
evidence to find that P. Mohanan (A14) was one of the conspirators.
497. Even according to the prosecution case, K.C. Ramachandran (A8) has
not contacted any of the accused among A1 to A7 over his mobile phone number
9447543963. The prosecution case is that the entire operation was done by him using
the SIM card 9747170471. As found earlier, there is no evidence to find that the SIM
card 9747170471 was used by K.C. Ramachandran (A8) at any time.
498. As found earlier, the evidence of PW19 proves that K.C. Ramachandran
(A8), Manojan (A11) and Kunhanandan (A13) had a meeting on the morning of
20.04.2012 at the house of Kunhanandan (A13) at Parat. What was the purpose of this
meeting ? In the statement filed under section 313 Cr.P.C, Kunhanandan (A13) has
stated that he had no previous acquaintance with K.C. Ramachandran (A8). It means

229

that they had no occasion earlier to meet with each other as leaders of C.P.I(M). If that
be so, what was the purpose of the visit of K.C. Ramachandran (A8) to the house of
Kunhanandan (A13) on the morning of 20.04.2012 ? As noticed earlier, direct evidence
regarding conspiracy would be seldom available. If the meeting of K.C. Ramachandran
(A8), Manojan (A11) and Kunhanandan (A13) were not a meeting of C.P.I(M) leaders or
activists, necessarily it can be inferred that an agreement was made by them in the
morning of 20.04.2012 at the house of Kunhanandan (A13) at Parat that
T.P. Chandrasekharan shall be eliminated. The subsequent conduct of Manojan (A11)
and Kunhanandan (A13) in contacting the members of the gang of assailants would
strengthen such an inference.
499. The details of the calls made by Kunhanandan (A13) from his number
9447642688 to the number 9544097009 used by Anoop (A1) during the period from
20.04.2012 to 05.05.2012 can be shown as in the table below. (Ext.P304):

Date

Time

Duration (Seconds)

22.04.2012

12.05.09

21

23.04.2012

14.32.03

67

23.04.2012

21.29.39

15

27.04.2012

22.32.58

43

500. The details of the calls made by Anoop (A1) from the number
9544097009 to the number 9447642688 of Kunhanandan (A13) during the period from
20.04.2012 to 05.05.2012 can be shown as in the table below (Ext.P304):

230

Date

Time

Duration (Seconds)

20.04.2012

11.29.59

24

25.04.2012

10.18.17

82

27.04.2012

22.37.06

25

501. Ext.P304 call data record of the number 9447642688 shows that a call
had been made to that number from the number 9567890119 used by Sunil Kumar (A3)
on 04.05.2012 at 16.45.05 hours.
502. The details of the calls made by Manojan (A11) from his number
9495260673 to the number 9544097009 used by Anoop (A1) during the period from
20.04.2012 to 05.05.2012 can be shown as in the table below (Ext.P317):
Date

Time

Duration (Seconds)

21.04.2012

18.43.50

29

23.04.2012

09.00.50

56

24.04.2012

12.39.40

31

24.04.2012

18.37.30

26

28.04.2012

20.59.52

43

30.04.2012

12.16.33

12

01.05.12

18.21.35

18

503. The details of the calls made by Anoop (A1) from the number
9544097009 to the number 9495260673 of Manojan (A11) during the period from
20.04.2012 to 05.05.2012 can be shown as in the table below (Ext.P317):

231

Date

Time

Duration (Seconds)

23.04.2012

09.10.15

28

23.04.2012

16.58.22

26.04.2012

06.07.09

53

26.04.2012

06.14.48

20

26.04.2012

08.26.43

11

26.04.2012

08.31.37

28.04.2012

22.54.35

18

29.04.2012

07.09.03

14

30.04.2012

11.37.52

53

01.05.12

17.26.08

36

01.05.12

17.51.48

26

04.05.12

16.13.18

23

04.05.12

16.23.09

57

232

504. Ext.P317 call data record of the number 9495260673 of Manojan (A11)
shows that on 04.05.2012 at 17.32.58 hours a call had been made to that number from
the number 9567890119 which was being used by Sunil Kumar (A3).
505. It can be seen from the above details that Kunhanandan (A13) had
contact with Anoop (A1) and Sunil Kumar (A3) after the date 20.04.2012. Manojan (A11)
had also frequent contact with Anoop (A1) after the date 20.04.2012. Manojan (A11) and
Kunhanandan (A13) have not explained under what circumstances or for what reason
they had made contact with Anoop (A1) and Sunil Kumar (A3), two persons who were
members of the gang of assailants who committed the murder of T.P. Chandrasekharan.
506. The details of the calls made by accused 1 to 7 inter se over mobile
phone during the period from 20.04.2012 to 04.05.2012 would indicate the close contact
kept by them.
507. The details of the calls made by Anoop (A1) from the number
9544097009 to the number used by Sunil Kumar, that is, 9567890119 during the period
from 20.04.2012 to 04.05.2012 can be shown as in the table below (Ext.P236):
Date

Time

Duration (Seconds)

25.04.2012

14.25

57

26.04.2012

06.00

42

26.04.2012

06.13

27.04.2012

05.39

11

27.04.2012

05.55

27.04.2012

06.09

14

29.04.2012

18.52

14

233

01.05.2012

17.52

27

01.05.2012

18.38

39

01.05.2012

19.06

35

01.05.2012

19.55

13

01.05.2012

20.52

01.05.2012

21.17

02.05.2012

19.29

02.05.2012

19.49

44

02.05.2012

20.06

19

02.05.2012

20.51

17

02.05.2012

20.59

04.05.2012

16.11

23

04.05.2012

19.52

23

508. The details of the calls from the number 9544097009 made by Anoop
(A1) to the number 9544785375 of T.K. Rajeesh (A4) during the period from 20.04.2012
to 04.05.2012 can be shown as in the table below:
Date

Time

Duration (Seconds)

26.04.2012

05.44

21

26.04.2012

06.10

36

27.04.2012

04.12

10

02.05.2012

05.41

15

02.05.2012

5.57

02.05.2012

18.55

27

234

02.05.2012

19.02

15

02.05.2012

20.55

58

03.05.2012

17.22

19

03.05.2012

17.48

12

04.05.2012

10.21

51

04.05.2012

17.04

13

04.05.2012

18.59

509. The details of the calls from the number 9544097009 made by Anoop
(A1) to the number 9562681111 of Muhammed Shafi (A5) during the period from
20.04.2012 to 04.05.2012 can be shown as in the table below:
Date

Time

Duration (Seconds)

29.04.2012

18.53

10

02.05.2012

06.49

13

03.05.2012

17.57

03.05.2012

18.04

13

03.05.2012

19.01

13

04.05.2012

19.54

13

510. The details of the calls made by Anoop (A1) from the number
9544097009 to Sijith (A6) to the number 9539481806 during the period from 20.04.2012
to 04.05.2012 can be shown as in the table below:

235

Date

Time

Duration (Seconds)

26.04.2012

05.45

44

26.04.2012

05.58

12

26.04.2012

06.09

11

29.04.2012

20.47

29

03.05.2012

18.10

64

03.05.2012

18.33

26

511. The details of the calls made from the number 9567890119 used by
Sunil Kumar (A3) to the number 9544097009 used by Anoop (A1) during the period from
20.04.2012 to 04.05.2012 can be shown as in the table below (Ext.P213):
Date

Time

Duration (Seconds)

20.04.2012

20.47.38

30

20.04.2012

23.57.35

21

21.04.2012

11.39.08

28

21.04.2012

16.18.35

11

21.04.2012

18.42.52

21.04.2012

19.00.14

13

21.04.2012

19.45.31

51

21.04.2012

20.05.14

21.04.2012

20.22.23

42

21.04.2012

20.43.28

16

22.04.2012

23.03.43

22

23.04.2012

20.14.26

236

24.04.2012

14.18.14

11

25.04.2012

12.15.26

27

25.04.2012

12.38.08

13

25.04.2012

13.34.21

34

25.04.2012

13.44.23

22

25.04.2012

14.15.35

14

25.04.2012

14.31.04

13

26.04.2012

09.40.23

23

26.04.2012

23.49.10

30

27.04.2012

05.56.49

46

27.04.2012

21.06.45

13

29.04.2012

11.13.11

24

29.04.2012

19.10.08

10

30.04.2012

19.49.51

26

01.05.2012

11.16.48

56

01.05.2012

17.59.22

43

01.05.2012

19.40.36

19

02.05.2012

09.16.48

32

02.05.2012

19.22.55

19

02.05.2012

19.51.57

39

02.05.2012

20.11.08

03.05.2012

12.02.50

46

03.05.2012

17.33.18

17

03.05.2012

17.39.34

43

03.05.2012

17.41.02

22

237

03.05.2012

23.24.32

10

03.05.2012

23.25.06

18

04.05.2012

16.12.35

04.05.2012

17.11.32

129

04.05.2012

17.17.19

349

04.05.2012

17.43.21

04.05.2012

19.24.55

12

512. The details of the calls made from the number 9567890119 used by
Sunil Kumar (A3) to the number 9544785375 used by T.K. Rajeesh (A4) during the
period from 20.04.2012 to 04.05.2012 can be shown as in the table below (Ext.P213):
Date

Time

Duration (Seconds)

27.04.2012

16.44.49

69

27.04.2012

20.35.49

64

28.04.2012

13.10.09

85

28.04.2012

22.28.51

40

28.04.2012

22.29.45

116

04.05.2012

17.06.01

31

513. The details of the calls made from the number 9567890119 used by
Sunil Kumar (A3) to the number 9562681111 used by Muhammed Shafi (A5) during the
period from 20.04.2012 to 04.05.2012 can be shown as in the table below (Ext.P213):

238

Date

Time

Duration (Seconds)

27.04.2012

16.48.43

14

27.04.2012

17.03.26

24

02.05.2012

09.39.16

13

03.05.2012

17.37.42

35

04.05.2012

20.02.10

13

04.05.2012

20.03.06

10

514. The details of the calls made by T.K. Rajeesh (A4) from his number
9544785375 to Anoop (A1) in the number 9544097009 during the period from
20.04.2012 to 04.05.2012 can be shown as in the table below (Ext.P248):
Date

Time

Duration (Seconds)

26.04.2012

08.12

41

26.04.2012

08.59

37

27.04.2012

09.51

29

27.04.2012

10.27

19

27.04.2012

20.31

26

27.04.2012

20.42

47

27.04.2012

21.30

25

27.04.2012

22.46

111

27.04.2012

22.51

16

29.04.2012

11.17

51

29.04.2012

17.49

30.04.2012

10.40

12

239

30.04.2012

10.54

60

30.04.2012

19.38

16

01.05.2012

12.00

96

01.05.2012

17.48

62

01.05.2012

18.48

11

02.05.2012

19.29

20

515. The details of the calls made by T.K. Rajeesh (A4) from his number
9544785375 to Sijith (A6) in the number 9539481806 during the period from 20.04.2012
to 04.05.2012 can be shown as in the table below (Ext.P248):
Date

Time

Duration (Seconds)

21.04.2012

08.37

16

21.04.2012

09.21

24

21.04.2012

12.54

34

21.04.2012

19.40

60

21.04.2012

19.51

11

23.04.2012

22.30

404

23.04.2012

22.38

110

24.04.2012

11.05

73

24.04.2012

11.32

19

24.04.2012

19.37

105

26.04.2012

15.12

10

28.04.2012

11.03

43

29.04.2012

13.16

12

240

29.04.2012

20.06

74

30.04.2012

09.07

21

30.04.2012

09.22

11

30.04.2012

12.47

18

30.04.2012

13.58

45

30.04.2012

14.33

19

01.05.2012

09.34

38

01.05.2012

18.21

25

04.05.2012

16.26

48

516. The details of the calls made from the number 9539481806 used by
Sijith (A6) to the number 9549097009 used by Anoop (A1) during the period from
20.04.2012 to 04.05.2012 can be shown as in the table below:
Date

Time

Duration (Seconds)

23.04.2012

20.07.18

55

24.04.2012

20.13.14

22

25.04.2012

13.11.30

25.04.2012

14.00.11

10

26.04.2012

08.38.19

27.04.2012

21.17.47

12

28.04.2012

15.52.19

29

28.04.2012

21.11.00

30.04.2012

09.44.02

26

30.04.2012

17.19.54

71

241

03.05.2012

18.33.17

04.05.2012

18.49.41

36

04.05.2012

18.51.59

517. The details of the calls made from the number 9539481806 used by
Sijith (A6) to the number 9544785375 used by T.K. Rajeesh (A4) during the period from
20.04.2012 to 04.05.2012 can be shown as in the table below:
Date

Time

Duration (Seconds)

20.04.2012

08.19.22

41

21.04.2012

06.52.18

26

02.05.2012

19.37.16

19

518.

As already found, K.C. Ramachandran (A8) was a party to the

conspiracy hatched on the morning of 20.04.2012 at the house of Kunhanandan (A13)


at Parat to eliminate T.P. Chandrasekharan.
C.P.I(M)

he

had

reason

to

have

It is to be noted that as a local leader of


intense

hostility

and

hatred

towards

T.P. Chandrasekharan who had contributed to the setback experienced by C.P.I(M) in


the Panchayath elections in Onchiyam and other local areas. As noticed earlier, it is an
admitted fact that clashes had occurred between groups of R.M.P and C.P.I(M) workers
in the local area. There was acute animosity between the members of the two political
parties. Ext.P569 is the certified copy of the F.I.R in crime no. 66/12 of Edacherry Police
Station. Ext.P569 shows that K.C. Ramachandran (A8) was the first accused in that
case registered in connection with the incident in which the R.M.P worker Balan S/o

242

Chathu, was attacked with deadly weapons. Ext.P 569 is a document relied upon by the
defence also to impeach the creditworthiness of PW2. Ext.P567 is the certified copy of
the F.I.R in crime no. 107/2009 of Edacherry Police Station registered in connection with
the attack made on P. Mohanan (A14) allegedly by R.M.P workers. Ext.P568 is the
certified copy of the F.I.R in crime no.53/2010 of Edacherry Police Station registered in
connection with the incident in which the R.M.P worker Jayan was attacked allegedly by
C.P.I(M) workers. Ext.P570 is the certified copy of the F.I.R in crime no. 246/2009 of
Chombala Police Station registered in connection with the attack made on the C.P.I(M)
worker Jayarajan allegedly by R.M.P workers. Exts. D1 to D5 documents produced by
the defence also prove the animosity that existed between the activists of the two
political parties. Therefore, there can be no dispute with regard to the fact that there was
intense political animosity between the members of R.M.P and C.P.I(M) activists in the
area.
519. Regarding the circumstances which indicate that Kunhanandan (A13)
was one of the conspirators, it needs mention that immediately after the murder of
T.P. Chandrasekharan, he made himself scarce and not available. Even as per the
statement filed by him under section 313 Cr.P.C, he had moved an application for
anticipatory bail before the Sessions Court, Thalassery and it was dismissed and it was
on 23.06.2012 he surrendered before the committal court. His statement also shows that
the police had come to his house on 20.05.2012. It means that he was aware of the fact
that the police was looking for him. Absence of the accused after the occurrence should
be considered as an important and vital circumstance against him.
520. In State of U.P. Vs Ashok Kumar Srivastava: A.I.R 1992 SC 840, it
has been observed as follows:

243

''Ashok was still untraced and no valid explanation is to be found for his absence.
He secured anticipatory bail and thereafter surrendered on 5th September, 1974. It
would, therefore, appear that he had made himself scarce for over one and a half
month. This is a circumstance which betrays guilty conscience. ''
521. Mere absconding by itself does not necessarily lead to a firm conclusion
of guilty mind. Absconding by itself is not conclusive either of guilt or of guilty
conscience. Even an innocent man may feel panicky and try to evade arrest when
wrongly suspected of a grave crime such is the instinct of self-preservation. But, the act
of absconding is a relevant piece of evidence to be considered along with other
evidence.
522. Ext.P304 call data record of the mobile phone number 9447642688 of
Kunhanandan (A13) for the period from 01.04.2012 to 30.06.2012 shows that after
19.05.2012 there was no incoming or outgoing call in that number till he surrendered
before the court.
Applicability of Section 10 of the Evidence Act
523. There is no reliable evidence to find that K.C.Ramachandran (A8) had
played any active role to execute the object of conspiracy after the meeting on
20.04.2012 in the house of Kunhanandan (A13) in Parat. This is mainly due to the failure
of the prosecution to prove that he had used the SIM card 9747170471. However, the
contacts made after the date 20.04.2012 by the co-conspirators with Anoop (A1), one of
the gang of assailants, would be relevant against him to prove that he was a party to
the conspiracy.

244

524. Section 10 of the Evidence Act reads as follows: "Things said or done by
conspirator in reference to common design--Where there is reasonable ground to
believe that two or more persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against each of the person believed
to be so conspiring, as well for the purpose of proving the existence of the conspiracy as
for the purpose of showing that any such person was a party to it."
525. The principle underlying section 10 of the Evidence Act is the theory of
agency. Every conspirator is an agent of his associate in carrying out the object of
conspiracy. Once conspiracy to commit an illegal act is proved, act of one conspirator
becomes the act of the other. The provision as contained in Section 10 of the Evidence
Act is a departure from the rule of hearsay evidence.

Criminal conspiracy is a

partnership in crime. In conspiracy, there is a joint or mutual agency for the prosecution
of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by
any of them pursuant to the agreement is, in contemplation of law, the act of each of
them and they are jointly responsible therefor. This means that everything said, written
or done by any of the conspirators in execution or furtherance of the common purpose is
deemed to have been said, done, or written by each of them. This joint responsibility
extends not only to what is done by any of the conspirators pursuant to the original
agreement but also to collateral acts
purpose.

incident to and growing out of the original

A new member joining a conspiracy does not create a new conspiracy nor

does it change the status of the other conspirators and the mere fact that conspirators
individually or in groups perform different tasks to a common end does not split up a

245

conspiracy into several different conspiracies. A man may join a conspiracy by word or
by deed.
526. A prima facie case of conspiracy has necessarily to be established for
application of section 10 of the Evidence Act. The second part of section 10 talks of
anything said, done or written by any one of such persons in reference to the common
intention after the time when such intention was first entertained by any one of them is
relevant fact against each of the persons believed to be so conspiring as well for the
purpose for proving the existence of the conspiracy as for the purpose of showing that
any such person was a party to it. The second part of section 10 permits the use of
evidence which otherwise could not be used against the accused person. Generally, an
act or action of one of the accused cannot be used as evidence against the other. But
an exception has been carved out in section 10 of the Evidence Act in case of
conspiracy. The second part of section 10 operates

only when the first part of the

section is clearly established i.e. there must be reasonable ground to believe that two or
more persons have conspired together in the light of the language of section120-A of the
Indian Penal Code.
527. Meeting of minds of two or more persons for doing or causing to be done
an illegal act or an act by illegal means is the essence of criminal conspiracy. The
offence takes place with the meeting of minds even if nothing further is done. It is an
offence independent of other offences and punishable separately. It is not necessary for
the accused to know the detailed stages of conspiracy. Mere knowledge of main object/
purpose of the conspiracy would suffice. (Gulam Sarbar Vs State : 2014 Cri.L J 34).
528. In the instant case, the conspiracy to murder T.P.Chandrasekharan
which was hatched at the house of house of Kunhanandan (A13) in Parat on 20.04.2012

246

is proved. K.C.Ramachandran (A8) was a party to that conspiracy. The contacts made
after the date 20.04.2012 by the co-conspirators, that is, Manojan (A11) and
Kunhanandan (A13) with Anoop (A1), one of the gang of

assailants, are relevant

against K.C.Ramachandran (A8) to prove that he was a party to the conspiracy. In cases
of conspiracy better evidence than acts and statements of co-conspirators in pursuance
of the object of conspiracy would be rarely available. ( Bhagwandas Keshwani Vs State
of Rajasthan: A.I.R 1974 SC 898).
529. The following are the circumstances established by the prosecution to
prove the motive and the conspiracy to murder T.P. Chandrasekharan and that
K.C. Ramachandran (A8), Manojan (A11) and Kunhanandan (A13) were among the
conspirators: (1) T.P. Chandrasekharan was a member of the C.P.I(M). (2)
T.P. Chandrasekharan left the C.P.I(M) or he was expelled from that party. (3) He formed
a new party by name Revolutionary Marxist Party (R.M.P) in the year 2008. (4) The new
party formed by T.P. Chandrasekharan had many followers including those who left the
C.P.I(M) or who were expelled from that party. (5) The new party formed by
T.P. Chandrasekharan raised strong challenge to the C.P.I(M) in Onchiyam and other
local areas. (6) T.P. Chandrasekharan was a candidate in the Lok Sabha election in the
year 2009 in the Vatakara constituency and he secured large number of votes in that
election. (7) The presence of T.P. Chandrasekharan in the Lok Sabha election in the
Vatakara Constituency was one of the factors which contributed to the defeat of the
C.P.I(M) candidate in that constituency which was a stronghold of C.P.I(M). (8) Clashes
had occurred between workers of R.M.P and C.P.I(M) in connection with the Lok Sabha
election. (9) P. Mohanan (A14), who was the Chief Election Agent of the C.P.I(M)
candidate in Vatakara was attacked allegedly by R.M.P activists. (10) In the Panchayath

247

election held in the year 2010, candidates of R.M.P were victorious in many wards in
Onchiyam, Chorode and Eramala Panchayaths. (11) The C.P.I(M) lost power in
Onchiyam Panchayath and R.M.P ascended to power in the election. (12)
K.C. Ramachandran (A8) was the first accused in a case registered in relation to the
attack made on Balan, an activist of R.M.P and he had to remain in jail for some days in
that case. (13) Some of the local leaders of C.P.I(M) in Onchiyam and other areas had
intense hatred and hostility towards T.P. Chandrasekharan and such animosity had
found expression in the speeches of the local leaders of C.P.I(M). (14) On the morning of
20.04.2012, K.C. Ramachandran (A8), Manojan (A11) and Kunhanandan (A13) met
together at the house of Kunhanandan (A13) in Parat. (15) After 20.04.2012, Manojan
(A11) had contact with Anoop (A1) on several occasions over mobile phone. (16)
Manojan (A11) has not offered any explanation for his contact and connection with
Anoop (A1). (17) After 20.04.2012, there was frequent contact between Kunhanandan
(A13) and Anoop (A1) over mobile phone. (18) Kunhanandan (A13) has not offered any
explanation for the calls made to Anoop (A1) and back over the mobile phone. (19) On
04.05.2012, at about 22.15 hours, T.P. Chandrasekharan was murdered by a gang of
persons which included Anoop (A1) and Sunil Kumar (A3). (20) Anoop (A1) had contact
with the other members of the gang of assailants. (21) Accused 1 to 7, the assailants of
T.P. Chandrasekharan, had no enmity towards him. There was no rhyme or reason for
them to murder him. (22) On and after 20.05.2012, that is, immediately after the arrest of
some of the accused in the case, Kunhanandan (A13) absconded and he was not
available.
530. In my view, the aforesaid circumstances are sufficient to prove the
motive and conspiracy to murder T.P. Chandrasekharan and the involvement of

248

K.C. Ramachandran (A8), Manojan (A11) and Kunhanandan (A13) in the conspiracy.
The contact which Manojan (A11) and Kunhanandan (A13) had with Anoop (A1), after
20.04.2012 speaks volumes. It is to be remembered that direct evidence regarding
criminal conspiracy would be hardly available. It is rarely possible to establish a
conspiracy by direct evidence. The existence of the conspiracy and its objects and role
of the accused in the conspiracy have to be inferred from the circumstances and the
conduct of the accused. The circumstances before the occurrence and during the
occurrence and after the occurrence have to be considered to decide about the
complicity of the accused in the conspiracy. In a case where number of accused are
involved it is not mandatory that all the conspirators must know each and every detail of
the conspiracy. The only relevant factor is that all means adopted and illegal act done
must be purported to be in furtherance of the object of conspiracy. One who tacitly
consents to the object of a conspiracy and goes alongwith other conspirators, while the
others put the conspiracy into effect, is guilty though he intends to take no active part in
the crime.
531. Apart from the speech made by K.K. Krishnan (A10) which is proved by
the evidence of PW6, there is no other evidence against K.K. Krishnan (A10) to find that
he was one of the conspirators.

His speech demonstrates the intensity of political

animosity which the local leaders of C.P.I(M) had towards T.P. Chandrsekharan. But,
without anything more, it cannot be found that he had engaged in the conspiracy to
murder T.P. Chandrsekharan. He is entitled to get benefit of doubt.
532.

There are also no sufficient circumstances to come to a definite

conclusion that Geothi Babu (A12) had engaged in the conspiracy to murder

249

T.P. Chandrasekharan. The allegation that on 10.04.2012, he was found at the varanda
of a room in the Sameera Quarters in Chokli engaged in conversation with Anoop (A1),
Sunil Kumar (A3), Manojan (A11) and K.C. Ramachandran (A8) has not been proved by
the prosecution. It is also to be noted that he had no contact with accused 1 to 7 over
mobile phone. Only Sunil Kumar (A3) had called him once. It was an incoming call to
his mobile phone. There is no evidence to find that Geothi Babu (A12) had contacted
any member of the gang of assailants from his mobile phone. The contacts over mobile
phone between Geothi Babu (A12) and Manojan (A11) cannot be taken as evidence
against Geothi Babu (A12) as they are said to be relatives. Geothi Babu (A12) is also
entitled to get benefit of doubt.
533. Learned counsel for the accused have contended that once the
prosecution failed to prove the conspiracy alleged to have been made at the flower shop
of Raveendran (A30) on 02.04.2012, the entire case of the prosecution would crumble
down and no amount of other evidence can prove the existence of conspiracy. There is
no force in this submission. As noticed earlier, the prosecution has established that there
was a conspiracy to murder T.P. Chandrasekharan on account of political enmity
towards him by the members of C.P.I(M). The failure of the prosecution to prove the
specific instance of hatching of conspiracy alleged to have taken place at the flower
shop of Raveendran (A30) does not preclude the prosecution from establishing other
circumstances against the accused and to prove that some of them were conspirators.
The essence of conspiracy is the agreement to do an illegal act. The prosecution has
proved that a conspiracy to anihilate T.P. Chandrasekharan was made on 20.04.2012 at
the house of Kunhanandan (A13) in Parat.

250

534. The discussion above would show that the prosecution has been able to
prove beyond reasonable doubt that K.C. Ramachandran (A8), Manojan (A11) and
Kunhanandan (A13) had entered into a conspiracy to murder T.P. Chandrasekharan and
that in pursuance of that conspiracy T.P. Chandrsekharan was murdered by the gang of
accused 1 to 7. The prosecution has not proved beyond reasonable doubt any role
played by K.K. Krishnan (A10), Geothi Babu (A12) and P. Mohanan (A14) in the
conspiracy to murder T.P. Chandrasekharan. The point is answered accordingly.
Abetment of Murder by Accused 8 to 14
535. Point No.8:- There is a charge framed against the accused 8 to 14 that it
was in pursuance of the conspiracy hatched by them to murder T.P. Chandrasekharan
that accused 1 to 7 committed the murder and therefore, accused 8 to 14 have abetted
the murder of T.P. Chandrasekharan.
536. Charge of conspiracy is not proved against K.K. Krishnan (A10), Geothi
Babu (A12) and P. Mohanan (A14). Therefore, the charge of abetment of murder also
does not stand against them.
537.

Even

against

K.C.

Ramachandran

(A8),

Manojan

(A11)

and

Kunhanandan (A13), the charge of abetment of murder will not stand. In order to
constitute the offence of abetment by conspiracy, there must first be combining together
of two or more persons in conspiracy; secondly, an act or illegal omission must take
place in pursuance of that conspiracy and in order to the doing of that thing. A mere
conspiracy or a combination of persons for the doing of a thing does not amount to an
abetment. Some thing more is necessary, namely, an act or illegal omission must take
place in pursuance of the conspiracy and in order to the doing of the thing for which the

251

conspiracy was made. There is no evidence that K.C. Ramachandran (A8), Manojan
(A11) and Kunhanandan (A13) had done any overt act abetting the actual murder of
T.P. Chandrasekharan by accused 1 to 7.
538. It follows that the prosecution has not proved that accused 8 to 14
abetted the murder of T.P. Chandrasekharan. The point is answered accordingly.
Destruction of the SIM Card 9747170471
539. Point No.9:- The prosecution has alleged that K.C.Ramachandran (A8)
destroyed the SIM card 9747170471 and the mobile phone in which that SIM card was
used. There is absolutely no evidence to prove this allegation. The prosecution has not
proved the charge against K.C. Ramachandran (A8) in this regard. The point is
answered accordingly.
Use of Explosive Substances
540. Points 4 and 5:- The evidence of PW1 proves that when the second
accused Manoj Kumar got out of the Innova car at the time of the incident, there was a
round object in his hand and that before leaving the place, the third accused Sunil
Kumar got the round object from Manoj Kumar (A2) and threw it on the road and then an
explosion took place.
541. E.K. Rajan (PW132), Assistant Sub Inspector was in charge of the bomb
squad on 05.05.2012. He has deposed that on the morning of 05.05.2012, as per the
direction of the Dy.S.P, Vatakara, he reached the scene of the incident and collected
small granite pieces having smell of gun powder, pieces of jute thread and small pieces
of newspaper from the scene of explosion and put them in a polythene cover and

252

produced it before the Vatakara Dy.S.P. PW132 has also deposed that the Dy.S.P put it
in a red cover and sealed it and seized it as per a mahazar.
542. Dy.S.P Jossy Cherian (PW165) has given evidence that on 05.05.2012,
at 18.00 hours, PW132 produced before him the remnants of explosion which were
collected from the scene of the incident. PW165 packed them in a red paper and sealed
it and seized it as per Ext.P384 mahazar.
543. Scientific Assistant Remya (PW142) had also collected paper pieces,
pieces of jute thread and grey coloured powder from the scene of the incident and
produced them before the investigating officer (PW163). Dy.S.P Jossy Cherian (PW165)
has given evidence that PW163 produced them before him at 17.00 hours on
05.05.2012. PW165 seized them as per Ext.P383 mahazar.
544. The materials collected by PW132 and PW142 from the scene of the
incident had been forwarded to the Forensic Science Laboratory, Thiruvananthapuram.
Ext.P553 is the report signed by the Assistant Director (Explosives) of the Forensic
Science Laboratory showing the result of examination conducted in the laboratory.
Ext.P553 report shows that the aforesaid materials contained potassium chlorate,
sulphur and aluminium.
545. As per section 2 (a) of the Explosive Substances Act, 1908 the
expression 'explosive substance' shall be deemed to include any materials for making
any explosive substance, also any apparatus, machine, implement or material used, or
intended to be used, or adapted for causing, or aiding in causing, any explosion in or
with any explosive substance; also any part of any such apparatus, machine or
implement. Section 4 (d) of the Explosives Act, 1884 defines explosive. There can be no

253

dispute with regard to the fact that potassium chlorate and sulphur are explosive
substances.
546. Section 3 of the Explosive Substances Act, 1908 provides that any
person who unlawfully and maliciously causes by any explosive substance an explosion
of a nature likely to endanger life or to cause serious injury to property shall, whether
any injury to person or property has been actually caused or not, be punished with
imprisonment for life, or with imprisonment of either description which shall not be less
than ten years and shall also be liable to fine.
547. In the instant case, the act of the third accused causing explosion by
using explosive substances attracts the offence punishable under section 3 of the
Explosive Substances Act, 1908.
548. Section 5 of the Explosive Substances Act, 1908 provides that any
person who makes or knowingly has in his possession or under his control any
explosive substance under such circumstances as to give rise to a reasonable suspicion
that he is not making it or does not have it in his possession or under his control for a
lawful object, shall, unless he can show that he made it or had it in his possession or
under his control for lawful object, be punished with imprisonment for a term which may
extend to ten years and shall also be liable to fine.
549. In order to prove the offence under section 5 of the Explosive
Substances Act, the prosecution has to prove (1) the substance in question is
explosive substance (2) that the accused made or knowingly had it in his possession or
under his control any explosive substance and (3) that he did so under such

254

circumstances as to give rise to a reasonable suspicion that it was not for a lawful
object.
550. In the present case, the prosecution has proved beyond reasonable
doubt that the second accused possessed explosive substance with the knowledge that
it was explosive substance. He has not raised any plea that he possessed it for any
lawful object. Therefore, he has committed an offence punishable under section 5 of the
Explosive Substances Act, 1908.
551. The prosecution has thus proved beyond reasonable doubt that the third
accused Sunil Kumar unlawfully and maliciously caused explosion by explosive
substance which was of a nature likely to endanger life. The prosecution has also
proved beyond reasonable doubt that the second accused Manoj Kumar had knowingly
in his possession explosive substance and that he had it in his possession not for a
lawful object. Thus, the prosecution has proved beyond reasonable doubt that the third
accused committed an offence punishable under section 3 of the Explosive Substances
Act, 1908 and that the second accused committed an offence punishable under section
5 of that Act. The points are answered accordingly.
Use of Fake Number Plate on the Innova Car
552. Point No.6:- The evidence of PW1 proves that the registration number
exhibited on the Innova car in which accused 1 to 7 came to the spot of the murder was
KL-18/A 5964. It has also been proved that the real registration number of that vehicle
which was found abandoned at the place Punathilmukku on 05.05.2012 is
KL-58/D 8144. Therefore, it is evident that a fake number plate was made and caused to
be affixed and exhibited on the car. However, there is absolutely no evidence to find that

255

it was Anoop (A1) who had caused the fake number plate got affixed on the Innova car.
It is proved that he had driven the car with the fake number plate to the spot of the
incident. Even then, the prosecution has not conclusively proved that he used the
aforesaid number plate as genuine. When there is no evidence to find that he was the
person who caused exhibition of the forged number plate on the Innova car, it is not
proper to find that he used the forged number plate as genuine. The prosecution has not
proved beyond reasonable doubt that the first accused has committed the offence of
forgery. The point is answered accordingly.
Concealment of Blood-Stained Swords
553. Points 7 and 25:- The prosecution has alleged that after the murder of
T.P. Chandrasekharan, Sunil Kumar (A3) entrusted the five blood-stained swords, which
were used for hacking the victim to death, with Pradeepan (A31). It is further alleged by
the prosecution that Pradeepan (A31) put the aforesaid swords in the well behind
Vasudeva Service Station in Chokli with the knowledge that those were the weapons
used for committing the murder of T.P. Chandrasekharan and thus he caused evidence
of commission of the offence of murder to disappear with the intention to screen the
offenders from legal punishment.
554. This court has already discussed the evidence of PW33, PW34 and
PW164 and also PW1 regarding the recovery of MO1 series swords from the well
behind Vasudeva Service Station in Chokli. This court has found that the evidence of
Dy.S.P. Shoukathali (PW164) regarding the discovery of the fact of concealment of
swords from the confession statement of Pradeepan (A31) can be accepted as reliable
and trustworthy. This court has also found that recovery of MO1 series swords on the

256

basis of the information given to PW164 by Pradeepan (A31) is also proved beyond
reasonable doubt. This court has further found that the prosecution has proved beyond
reasonable doubt that MO1 series swords are the weapons used by the assailants to
commit murder of T.P. Chandrasekharan.
555. The question now arises whether concealment of MO1 series swords by
Pradeepan (A31) in the water in the well amounts to an offence punishable under
section 201 of the Indian Penal Code. The essential ingredients of the offence under
section 201 of the Indian Penal Code are that it must be proved firstly, that an offence
has been committed. Secondly, the accused must know or have reason to believe that
the offence has been committed. Thirdly, the accused must either cause any evidence of
the commission of that offence to disappear or give any information respecting the
offence which he knows or believes to be false. Fourthly, the accused must have acted
with the intention of screening the offender from legal punishment (Roshan Lal Vs. State
of Punjab: A.I.R 1965 SC 1413).
556. In the present case, it has been proved that an offence of murder was
committed. MO1 series swords would have reached the possession of Pradeepan (A31)
from any one of accused 1 to 7. There is absolutely no evidence to find that it was the
third accused himself who entrusted MO1 series swords with Pradeepan (A31). The
weapons could have been entrusted with Pradeepan (A31) by any person among
accused 1 to 7. When Pradeepan (A31) received those weapons, they were bloodstained. Therefore, he had reason to believe that an offence of murder had been
committed by using those weapons. He concealed those weapons in a well. It can also

257

be reasonably be inferred that the weapons were concealed by him with the intention of
screening the offenders from legal punishment.
557. Concealment of the weapon of offence amounts to causing evidence of
commission of offence to disappear. The expression "any evidence of commission of
that offence'' in section 201 I.P.C refers not to evidence in the extensive sense in which
that word is used in the Indian Evidence Act, but to evidence in its primary sense, as
meaning anything that is likely to make the crime evident, such as the existence of a
wounded corpse or blood-stained clothes and weapons, fabricated documents, or
similar material objects, indicating that an offence has been committed. There cannot be
the slightest doubt that the weapon with which an offence is committed is a very
valuable piece of evidence of its commission. More so when the offence is said to be of
murder and the weapon is blood-stained, and if a person conceals that weapon,
provided his intention in doing so is to screen the offender, he is guilty of causing that
evidence to disappear. When a weapon is stained with human blood it affords a primary
evidence of the offence and not any evidence in the extensive sense. (See Chander
Giani Vs State: 1958 Cri. L. J. 689).
558. Learned counsel for the accused have contended that there is absolutely
no evidence to find that it was Pradeepan (A31) who concealed MO1 series swords in
the water in the well behind Vasudeva Service Station. There is no force in this
submission. It is on the basis of the information given by Pradeepan (A31) to Dy.S.P
Shoukathali (PW164) that the swords were recovered from the well. It is true that the
relevant portion of the confession statement of Pradeepan (A31) does not show that he
had told PW164 that he was the person who concealed the swords in the well. However,

258

it can reasonably be inferred that he was the person who concealed those weapons. In
this connection it is necessary to repeat the dictum laid down in State of Maharashtra
Vs. Suresh : 2000 SCC (Cri) 263, which reads as follows :
We too countenance three possibilities when an accused points out the place
where a dead body or an incriminating material was concealed without stating that it was
concealed by himself. One is that he himself would have concealed it. Second is that he
would have seen somebody else concealing it. And the third is that he would have been
told by another person that it was concealed there. But, if the accused declines to tell
the criminal Court that his knowledge about the concealment was on account of one of
the last two possibilities the criminal Court can presume that it was concealed by the
accused himself. This is because the accused is the only person who can offer the
explanation as to how else he came to know of such concealment and if he chooses to
refrain from telling the Court as to how else he came to know of it, the presumption is a
well-justified course to be adopted by the criminal Court that the concealment was made
by himself. Such an interpretation is not inconsistent with the principle embodied in
Section 27 of the Evidence Act."
559. In the instant case, Pradeepan (A31) has no case that he had seen
somebody else putting the swords in the well. He has no case that he was told by
another person that the swords were concealed in the well. Therefore, the presumption
that can be raised is that Pradeepan (A31) was the person who concealed the swords in
the water in the well.
560. The discussion above would show that Pradeepan (A31) had concealed
MO1 series swords in water in the well behind Vasudeva Service Station in Chokli with

259

the knowledge that those were the weapons used for committing an offence of murder
and thus he caused evidence of commission of the offence to disappear and he did such
act with the intention of screening the offenders from legal punishment. However, the
prosecution has failed to prove that the third accused Sunil Kumar was the person who
entrusted MO1 series swords with Pradeepan (A31). The points are answered
accordingly.
Procurement of Innova Car
561. Points 11 and 12:- According to the prosecution, it was the accused
Rafeek (A18) who procured the Innova car KL-58/D 8144 and entrusted it with Anoop
(A1). The prosecution has also alleged that in order to get the Innova car on rent,
Rafeek (A18) had put his signature in a cheque leaf which was issued to Rajikanth (A25)
from the bank and thereby Rafeek (A18) committed forgery. The prosecution relies upon
the evidence of Naveen Das (PW7), Harris (PW8) and Rugmini (PW70) to prove the
case against Rafeek (A18).
562. Naveen Das (PW7) is the registered owner of the Innova car
KL-58/D 8144. Ext.P349 is the registration particulars of this vehicle issued by M. Rajan
(PW161), the Joint R.T.O, Thalassery. Ext.P349 document shows that Naveen Das
(PW7) is the registered owner of the Innova car KL-58/D 8144.
563. Naveen Das (PW7) has given evidence as follows: He had given his car
KL-58/D 8144 on rent three times. It was on 25.04.2012 that he gave the car on rent for
the last time. He had given the car on rent through his friend Rijesh (CW18). On
25.04.2012, at about 11.00 hours, Rijesh came to his house and wanted the car on rent
for a period of one month. PW7 agreed to give the car on rent for a period of one month

260

for Rs. 31,000/-. He entrusted the key of the car with Rijesh (CW18). A driver had come
with Rijesh (CW18). They took the car from the place where it was parked. Rijesh
(CW18) came back after three hours. He gave Rs. 31,000/- and also the documents
obtained from the person who had taken the car on rent. The documents were a signed
blank cheque, signed stamp paper and copy of the driving licence. PW7 verified the
documents. He gave them back to Rijesh (CW18) as there was possibility that he would
not be available at the time of returning the car. PW7 identified in the court the signed
blank cheque leaf (Ext.P6), signed blank stamp paper (Ext.P7) and copy of the driving
licence (Ext.P8). PW7 has deposed that Rijesh (CW18) had told him that it was one
Rafeek (A18) in Mahe who took the car on rent. PW7 identified the car which was
parked in the compound of the court as the car owned by him and given on rent by him.
564. There is no sufficient reason to disbelieve the evidence of PW7 that on
25.04.2012, he gave his Innova car KL-58/D 8144 on rent through his friend Rijesh
(CW18). It is true that the prosecution could not examine Rijesh (CW18) as he was
reported to be abroad. However, in view of the testimony of Harris (PW8), nonexamination of Rijesh (CW18) by the prosecution does not very much affect its case
against Rafeek (A18).
565. Harris (PW8) has given evidence as follows: He had acquaintance with
Rafeek (A18) for about 7 to 8 years. On 22.04.2012 or on 23.04.2012, Rafeek (A18)
wanted to have an Innova car. PW8 called Rijesh (CW18) and asked whether Innova car
was available. Rijesh (CW18) told him that vehicle could be arranged. On the morning of
25.04.2012, Rafeek (A18) called him. Thereafter, PW8 called Rijesh (CW18). Then
Rijesh (CW18) told him that he would come near Mahe Bridge with the vehicle. PW8

261

reached near Mahe Bridge at about 12 noon. At that time, Rijesh (CW18) also came
there with Innova car. The car was driven by another person. Then, PW8 called Rafeek
(A18) and told him that the vehicle was ready. Rafeek (A18) came and gave him Rs.
35,000/-. Rafeek (A18) also gave him a signed stamp paper of the value of Rs. 100/-, a
blank cheque and copy of the driving licence. There was no signature in the cheque leaf.
Rijesh (CW18) asked PW8 to get signature in the cheque. Rafeek (A18) signed the
cheque leaf. The registration number of the aforesaid car was KL-58/D 8144. Rafeek
(A18) had given the amount of Rs. 35,000/- to him (PW8). He had given the documents
to Rijesh (CW18). Out of the amount of Rs. 35,000/-, PW8 gave Rs. 32,000/- to Rijesh
(CW18). After checking the vehicle, Rafeek (A18) and the person who came with him
took away the car. Rijesh (CW18) left the place but PW8 remained near Mahe Bridge.
After some time, Rafeek (A18) came back and told him that the vehicle was not full
option but it was middle option and that the rent was on the higher side. Then PW8 gave
back Rs. 2,000/- to Rafeek (A18). PW8 identified in the court Ext.P6 as the cheque leaf
signed by Rafeek (A18) in his presence. He also identified the signed blank stamp paper
(Ext.P7) and the copy of the driving licence (Ext.P8) given by Rafeek (A18). PW8
identified Rafeek (A18) in the court. He also identified the car KL-58/D 8144 which was
parked in the compound of the court as the Innova car entrusted by him with Rafeek
(A18).
566. PW8 has stated on cross examination that when Rafeek (A18) gave the
documents to Rijesh (CW18), he (PW8) had seen the documents. But he has also
stated that he did not get any opportunity to inspect the documents given to Rijesh by
Rafeek (A18). PW8 has also stated on cross examination that he could not say who had
signed Ext.P6 cheque leaf and that he did not see putting of signature in the cheque

262

leaf. But PW8 would say in the re-examination that his statement in examination-in-chief
that Ext.P6 is the cheque leaf signed by Rafeek (A18) in his presence is true.
567. Rugmini (PW70) is the Secretary-in-charge of Kodiyeri Service Cooperative Bank. Her evidence would show that Ext.P6 cheque leaf was one issued to
account number 9169 from that bank and that the aforesaid account is one maintained
by C.K. Rajikanth (A25). PW70 has given evidence that as per the entry in page No.91
of the cheque issue register kept in the bank, cheque number 126222 had been issued
to C.K. Rajikanth holding account number 9169 in the bank. Ext.P52 is the statement of
account certified by PW70. She has deposed that the cheque issue register and the
statement had been seized by police as per a mahazar. PW70 identified her signature in
Ext.P53 mahazar. PW70 has also deposed that the police returned the cheque issue
register to the bank on the basis of Ext.P54 kychit executed by her.
568. PW70 has stated on cross examination that it was on 25.04.2012 that
cheque number 126222 was issued from the bank. She has stated that as per the entry
in the cheque issue register it was on 24.04.2012 that the aforesaid cheque was issued.
She would say that the entry in the register is a clerical mistake.
569. Ext.P52 document shows that account number 9169 in the Kodiyeri
Service Co-operative Bank is in the name of C.K. Rajikanth (A25). Ext.P396 is the copy
of page No.91 of the cheque issue register kept in that bank. PW70 had given evidence
in the court by looking into page no.91 of the cheque issue register. Later she produced
attested copy of that page and it was marked as Ext.P396 with the consent of the
defence. The number of Ext.P6 cheque is 126222. As per the entry in Ext.P396
document, it was on 24.04.2012 that the aforesaid cheque leaf was issued from the

263

bank to the holder of the account number 9169. However, there is no sufficient reason to
disbelieve the evidence of PW70 that the entry in the cheque issue register is a mistake
and that it was on 25.04.2012 that cheque number 126222 was issued. Her evidence
shows that she was not present in the bank on 25.04.2012. Ext.P52 statement relating
to account number 9169 would show that the amount in that account on 24.04.2012 was
only Rs. 100/- and it was on 25.04.2012 that Rs. 1000/- was deposited in that account.
PW70 has deposed that only if there is minimum amount of Rs. 1000/- in the account,
cheque leaf or cheque book would be issued. Therefore, there cannot be any doubt with
regard to the fact that it was on 25.04.2012 that cheque number 126222 was issued
from the bank to the account 9169 held by C.K. Rajikanth (A25).
570. Moreover, whether the cheque leaf (Ext.P6) was issued from the bank
on 24.04.2012 or 25.04.2012 does not make any difference. The fact remains that it is a
cheque issued to C.K. Rajikanth (A25) from the bank. At any rate, the defence has no
case that Ext.P6 cheque leaf is one issued to Rafeek (A18) from the Kodiyeri Service
Co-operative Bank. Ext.P6 cheque leaf bears the account number as 9169. Ext.P52
document shows that account number 9169 is one maintained in the bank by
C.K. Rajikanth (A25).
571. Now, the question is whether the prosecution has proved that Rafeek
(A18) had signed Ext.P6 chieque. The testimony of PW8 in this regard is not definite. He
has stated in examination-in-chief that when Rafeek (A18) gave the cheque leaf, there
was no signature in it and then Rijesh (CW18) wanted to get signature in the cheque
and that Rafeek (A18) signed the cheque. However, on cross examination PW8 has
deposed that he could not say who had signed Ext.P6 cheque leaf because he did not

264

see signing of the cheque. Again, in re-examination PW8 has stated that his statement
in examination-in-chief that Ext.P6 is the cheque signed and given by Rafeek (A8) in his
presence is true. On the basis of this evidence, it cannot be found that Rafeek (A18) had
put his signature in the cheque leaf in the presence of PW8. No explanation was
obtained from PW7 in the re-examination as to the categoric statement made by him in
the cross examination that he did not see signing of the cheque and also with regard to
the ignorance expressed by him regarding the author of the signature in it. There is no
explanation as to why he made such statement in the cross examination. In these
circumstances, on the basis of the evidence of PW8, it cannot be found that Rafeek
(A18) had signed Ext.P6 cheque leaf. There is no other evidence to find that the
signature in Ext.P6 cheque leaf is of the accused Rafeek (A18).
572. However, even in the absence of documentary evidence, the
prosecution can establish that it was Rafeek (A18) who had taken the Innova car
KL-58/D 8144 on rent. If the evidence of PW8 in that regard is reliable and trustworthy, it
is sufficient to prove entrustment of the car on rent with Rafeek (A18). Nothing has been
brought out in the cross examination to discredit the testimony of PW8 regarding
entrustment of the car on rent to Rafeek (A18). There is no reason whatsoever even
suggested by the defence for the motive of PW8 to give false evidence against Rafeek
(A18). On a reading of the testimony of PW8 as a whole, it can be found that his
evidence that on 25.04.2012 Rafeek (A18) took the car KL-58/D 8144 on rent is true.
573. Ext.P285 is the application and Ext.P286 is the copy of the proof of
identity given to Vodafone Company for obtaining SIM card. It is seen that on the basis
of these documents the SIM card 9645193160 was issued in the name of P.V. Rafeek

265

(A18). Ext.P295 is the call data record of the SIM card 9645193160 certified by the
Nodal Officer (PW152) of Vodafone Company. Ext.P333 document shows that
9447383971 is the mobile phone number of Harris (PW8). Ext.P295 call data record
shows the contacts made by Rafeek (A18) with PW8 on 24.04.2012 and 25.04.2012.
The details of the calls can be shown as in the table below:

Call from

Call to

Date

Time

9645193160

9447383971

24.04.2012

14.25.59

9447383971

9645193160

24.04.2012

14.39.42

9447383971

9645193160

24.04.2012

16.26.37

9447383971

9645193160

24.04.2012

18.17.06

9645193160

9447383971

24.04.2012

19.20.44

9645193160

9447383971

24.04.2012

19.25.21

9645193160

9447383971

25.04.2012

11.33.11

9645193160

9447383971

25.04.2012

12.31.09

9645193160

9447383971

25.04.2012

13.07.32

9645193160

9447383971

25.04.2012

14.31.54

9645193160

9447383971

25.04.2012

14.44.19

9645193160

9447383971

25.04.2012

15.54.34

The calls shown above also indicate the truth of the evidence given by PW8.
574. Once the prosecution has proved that on 25.04.2012, the accused
Rafeek (A18) had taken the Innova car KL-58/D 8144 on rent, in the absence of any
explanation offered by Rafeek (A18) as to how the car in his possession came into the

266

possession of Anoop (A1) who was seen driving that vehicle at the time of the incident, it
has to be inferred that Rafeek (A18) had given that vehicle to Anoop (A1) for facilitating
the murder of T.P. Chandrasekharan and thus he intentionally aided and abetted the
offence of murder. In order to constitute abetment, the abettor must be shown to have
"intentionally" aided the commission of the crime. As per Explanation 2 to section 107
I.P.C, anything done in order to facilitate the commission of an act would amount to
aiding the commission of the act. Intention being a condition of mind locked in the
bosom of the concerned, necessarily it should be a matter for inference from the
attending circumstances. The circumstances have to be assessed, discerned and
understood with due regard to the usual human conduct.

575. In this connection, it is also to be noted that Rafeek (A18) had frequent
contact with Anoop (A1) or Sunil Kumar (A3) over mobile phone during the period prior
to the murder of T.P. Chandrasekharan. The details of the calls made between them can
be shown as in the table below (as revealed from Ext.P295):

Call from

Call to

Date

Time

9567890119

9645193160

24.04.2012

10.10.54

9567890119

9645193160

24.04.2012

10.10.57

9567890119

9645193160

24.04.2012

10.15.54

267

9645193160

9567890119

24.04.2012

10.36.40

9567890119

9645193160

24.04.2012

19.19.35

9567890119

9645193160

24.04.2012

19.23.19

9567890119

9645193160

24.04.2012

19.26.12

9567890119

9645193160

25.04.2012

10.50.31

9567890119

9645193160

25.04.2012

10.57.41

9567890119

9645193160

25.04.2012

11.07.35

9645193160

9567890119

25.04.2012

11.08.01

9567890119

9645193160

25.04.2012

12.36.37

9567890119

9645193160

28.04.2012

17.01.57

9645193160

9567890119

29.04.2012

15.34.04

9567890119

9645193160

02.05.2012

20.34.41

9645193160

9567890119

02.05.2012

20.56.09

9645193160

9567890119

02.05.2012

21.05.18

268

576. Dy.S.P Jossy Cherian (PW165) has given evidence that he arrested
Rafeek (A18) at 17.00 hours on 12.06.2012 at the office of the Dy.S.P, Vatakara.
Ext.P418 is the arrest memo and Ext.P419 is the inspection memo prepared at that
time. PW165 has given evidence that Rafeek (A18) was produced before the Medical
Officer in Vatakara Government Hospital on 13.06.2012 for collecting samples of blood
and hair from him.
577. Dr. Shalina Padman (PW107) has given evidence that on 13.06.2012, at
11.50 hours, she had collected blood and hair samples of Rafeek (A18) who was
produced before him and issued Ext.P114 certificate. She has also deposed that she
handed over the sealed cover containing the blood and hair samples to the police officer
who brought Rafeek (A18).
578. A.S.I Muhammed Rafi (PW114) has given evidence that he produced
Rafeek (A18) before the doctor on 13.06.2012 and that the doctor collected samples of
blood and hair from Rafeek (A18) and entrusted with him sealed packet. PW114 has
further stated that he produced the sealed packet before the Dy.S.P Santhosh (PW166)
at 16.00 hours and that the Dy.S.P seized it as per Ext.P113 mahazar. PW114 identified
his signature in that mahazar.
579. Dy.S.P Santhosh (PW166) has given evidence that the samples of blood
and hair collected from the body of Rafeek (A18) by the doctor and entrusted with A.S.I
Muhammed Rafi (PW114) were produced before him by Muhammed Rafi (PW114).
PW166 has deposed that he seized the samples of blood and hair as per Ext.P113
mahazar. They were produced in the court as per Ext.P490 property list. They were

269

forwarded to the Forensic Science Laboratory, Thiruvananthapuram as per Ext.P491


forwarding note.
580. Ext.P572 is the report signed by Dr. R. Vinod Kumar, Assistant Director
(Biology), Forensic Science Laboratory, Thiruvananthapuram regarding the result of
comparison of hairs. Ext.P572 report shows that the hairs collected from the Innova car
KL-58/D 8144 which was found abandoned at the place Punathilmukku on 05.05.2012
were compared with the sample hairs of Rafeek (A18). On such comparison it is found
that seven of the human scalp hairs found in the Innova car are similar to the sample
scalp hairs of Rafeek (A18).
581. Comparison of hair serves as a tool in investigation to fix identity of a
person. But even by careful comparison one cannot say that a hair came from a
particular individual. An accused cannot be found guilty solely on the basis of positive
result of resemblance of hair. But it can definitely be taken as a corroborative
circumstance (Sudheer Babu Vs. State of Kerala : 2013 (2) K.L.J 229).
582. Report of expert on analysis of hair is an acceptable form of evidence
(State of Kerala Vs Baby Joseph: 1992 Cri. L. J. 2257). The science of hair identification
is a fast advancing science and even if it is assumed that individualization is not possible
the results of scientific examination of hair can be relied upon along with other
circumstances connecting the accused with the crime (State of Kerala Vs Rajan alias
Nasam : 2004 Cri. L. J. 715).
583. In the present case, the fact that some of the hairs found in the Innova
car KL-58/D 8144 are similar to the scalp hair of Rafeek (A18) can be taken as a
corroborative circumstance to find that he had occasion to use that vehicle.

270

584. The accused Rafeek (A18) has not offered any explanation as to the
circumstances under which he parted with possession of the Innova car KL-58/D 8144
and how it came into the possession of Anoop (A1). Therefore, it can reasonably be
inferred that Rafeek (A18) had given that vehicle to Anoop (A1) with the knowledge that
it

would

be

used

by Anoop

(A1)

in

accomplishing

the

plan

to

murder

T.P. Chandrasekharan. Criminality rests not so much on the facility given but on its
nature and effect and the intention with which it was given. Intentionally affording facility
to do a crime is equivalent to aiding in doing the crime. The circumstances of the case
indicate that Rafeek (A18) had intentionally aided commission of the offence of murder
by making the Innova car KL-58/D 8144 available to Anoop (A1). Thus, the prosecution
has proved beyond reasonable doubt that the accused Rafeek (A18) abetted
commission of the offence of murder. But, the prosecution has not been able to prove
that Rafeek (A18) had put his signature in Ext.P6 cheque leaf belonging to
C.K. Rajikanth (A25) and thereby committed forgery. The points are answered
accordingly.
585. Points 10, 13 to 24 and 26 to 35:- The consideration of these points
relate to the role of the accused Shibu (A16), Sreejith (A17), Aswanth (A19), Dilshad
(A20), Muhammed Fasalu (A21), Sanoop (A22), Rajikanth (A25), Rajith (A27), Rameesh
(A28), Dipin (A29), Raveendran (A30), Shanoj @ Kelan (A33), Jijesh Kumar (A36),
Shaju (A37), Abhinesh (A39), Saneesh (A41), Babu (A42), Sreejith (A48), Sudheesh
(A49), Jigesh (A50) and Dhananjayan (A70) prior to the occurrence and after the
occurrence. The allegations against Pradeepan (A31) which have not been considered
yet also require consideration. The allegations against these accused can be considered
one by one.

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Accused Shibu (A16) and Sreejith (A17)


586. The charge against the accused Shibu (A16) and Sreejith (A17) is that
on 27.04.2012, alongwith accused 1 and 3 to 5, they made attempt to find out the
whereabouts of T.P. Chandrasekharan for the purpose of causing his death and thus
committed an offence punishable under section 302 read with 115 of the Indian Penal
Code. It is also alleged that with the knowledge that their act will facilitate the murder of
T.P. Chandrasekharan, they voluntarily concealed the existence of the design to commit
such murder and thereby committed an offence punishable under section 118 of the
Indian Penal Code.
587. Raneesh (PW16) is the witness examined by the prosecution to prove
that Shibu (A16) and Sreejith (A17) had tried to track down the movements of
T.P. Chandrasekharan and acted as spotters. PW16 has deposed that on 27.04.2012, at
09.00 hours, he had gone to Chombala harbour for buying fish. When he reached there,
he saw an Innova car coming. The car stopped there. PW16 saw Shibu (A16) and
Sreejith (A17) getting out of the car and standing there. There were some other persons
inside the car. They did not get out of the car. PW16 has deposed that he went inside
the harbour for buying fish. He came back after half an hour. Then also he saw Shibu
(A16) and Sreejith (A17) and the car there. PW16 identified in the court Shibu (A16) and
Sreejith (A17). He also identified the car KL-58/D 8144 parked in the compound of the
court as the car which he saw in the harbour on 27.04.2012. PW16 has also deposed
that T.P. Chandrasekharan used to come to Chombala harbour for buying fish.
588. A suggestion was made to PW16 in the cross examination that on
27.04.2012, at 09.00 hours, Shibu (A16) and Sreejith (A17) were working in a quarry in

272

Koothuparamba. No evidence was adduced by the aforesaid accused to prove this plea.
There is no sufficient ground to disbelieve the evidence of PW16 that on 27.04.2012, at
09.00 hours, when he went to Chombala harbour, he saw Shibu (A16) and Sreejith
(A17) getting out of the Innova car KL-58/D 8144 and standing there. There is also no
reason to discard his testimony that he had seen T.P. Chandrasekharan several times in
Chombala harbour.
589. The mere presence of the accused Shibu (A16) and Sreejith (A17) on
27.04.2012 in the Chombala harbour with the car KL-58/D 8144 is not sufficient to come
to a conclusion that they made attempt to track down the movements of
T.P. Chandrasekharan who used to come there. There is nothing to find that their
attempt was to point out T.P. Chandrasekharan to A1 and A3 to A5. It is not even known
who were the persons sitting inside the car. It cannot be assumed that those persons
were A1 and A3 to A5. The evidence of PW16 is not sufficient to prove the charge
against

Shibu

(A16)

and

Sreejith

(A17)

that

they

abetted

the

murder

of

T.P. Chandrasekharan.
590. There is also no evidence to find that Shibu (A16) and Sreejith (A17)
were aware of the plan to murder T.P.Chandrasekharan and that they concealed such
plan.
591. It follows that the prosecution has not proved that Shibu (A16) and
Sreejith (A17) committed the offences punishable under section 302 read with 115 and
under section 118 of the Indian Penal Code.

273

Accused Aswanth (A19)


592. The charge against the accused Aswanth (A19) is that between
25.04.2012 and 04.05.2012, without any lawful authority and dishonestly and
fraudulently, he made fake number plate KL/18A 5964 and affixed it on the Innova car
KL-58/D 8144 and thereby he committed forgery. Yet another charge against Aswanth
(A19) is that between 25.04.2012 and 04.05.2012, dishonestly and fraudulently, he
made sticker Masha Allah in Arabic language and affixed it 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 he abetted commission
of the offence of murder. It is also alleged that with the knowledge that his act will
facilitate the murder of T.P.Chandrasekharan he voluntarily concealed the existence of
the design to commit such murder.
593. Dy.S.P Jossy Cherian (PW165) has given evidence that on 11.06.2012,
at 11.30 hours, he arrested the accused Aswanth (A19) at the office of the Dy.S.P,
Vatakara. Ext.P413 is the arrest memo prepared at that time.
594. Dy.S.P Jossy Cherian (PW165) has deposed that he recorded the
statement of Aswanth (A19). He has deposed that Aswanth (A19) made a statement to
him that the remaining portion of the base sheet and film affixed on the car were
abandoned at that place itself and if he was taken, he would show the base sheet and
the film. The statement given to PW165 by Aswanth (A19) regarding affixure of the
sticker on the car is not admissible in evidence. However, the remaining portion of the
statement given by him, as deposed by PW165, is admissible under section 27 of the
Evidence Act. PW165 has given evidence that on the basis of the aforesaid statement

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given by Aswanth (A19), as led by Aswanth (A19), he reached the bylane near the
house of one Soumini at the place Atholikattil and that Aswanth (A19) pointed out to him
three base sheets which were hidden under the grass there. PW165 has deposed that
Aswanth (A19) took out the aforesaid base sheets and gave them to him and he
(PW165) seized them as per Ext.P44 mahazar. PW165 identified in the court the
aforesaid three base sheets (MO51 series).
595. Velayudhan Nambiar (PW54) is an attestor to Ext.P44 mahazar. He has
given evidence that on 11.06.2012, at about 13.00 hours, he saw the Dy.S.P and police
party and a young person at the bylane on the northern side of the house of his
daughter at the place Panthakkal. PW54 has also deposed that he saw the young
person who was with the police party taking two or three paper pieces and giving them
to the police. The police prepared a mahazar. PW54 has stated that he signed that
mahazar. He identified his signature in Ext.P44 mahazar. He also identified MO51 series
paper pieces in the court as the materials seized by the police as per the mahazar.
However, PW54 failed to identify Aswanth (A19) in the court as the young person who
was with the police party who had taken the base sheets and given them to the police.
596. Though PW54 failed to identify Aswanth (A19) in the court, his testimony
corroborates the evidence of PW165 regarding the seizure of MO51 series paper
pieces. Regarding the identity of the person who pointed out MO51 series paper pieces
to PW165, there is no reason to disbelieve the evidence of PW165 in that regard.
Moreover, there is also the evidence of Sub Inspector Dileep Kumar (PW131) who was
present at the time of seizure of MO51 series paper pieces as per Ext.P44 mahazar.
PW131 identified his signature in Ext.P44 mahazar. He has given evidence regarding

275

the seizure of MO51 series paper pieces by PW165. He has given evidence that it was
Aswanth (A19) who took out the base sheets from the shrubs at the bylane and gave
them to the Dy.S.P. PW131 also identified Aswanth (A19) in the court. There is no
reason to disbelieve his evidence.
597. The evidence of PW131 and PW165 proves that Aswanth (A19) had
pointed out MO51 series paper pieces to PW165 which were lying under the grass and
the shrubs on a bylane at the place Panthakkal. Seizure of MO51 series paper pieces as
per Ext.P44 mahazar by PW165 on the basis of the statement given to him by Aswanth
(A19) cannot be doubted.
598. However, recovery of MO51 series paper pieces on the basis of the
information given by Aswanth (A19) by itself does not prove that Aswanth (A19) had
made the sticker Masha Allah which was found on the Innova car KL-58/D 8144. The
investigating officers did not take care to seize the stickers which were found affixed on
the car and to get them compared with MO51 series paper pieces. MO51 series paper
pieces were not sent for forensic examination. Therefore, there is nothing to prove that
MO51 series paper pieces are the remaining portions of the stickers found affixed on the
Innova car KL-58/D 8144. In other words, the information given by Aswanth (A19) to
PW165 and the recovery of MO51 series paper pieces on the basis of such information
given by Aswanth (A19) do not distinctly connect him with the crime alleged to have
been committed by him.
599. PW165 has deposed that Aswanth (A19) made a statement to him that
the remaining pieces after cutting the number and the remaining film and sheet and hard
board pieces after cutting were in the property of the house in which he was residing

276

and if he was taken, he would point out them. PW165 has given evidence that on the
basis of the aforesaid statement given by Aswanth (A19) and as led by Aswanth (A19),
he reached in front of house no.17/278 of Chokli Grama Panchayath at the place
Ellathupeedika and that Aswanth (A19) pointed out to him a place where waste
materials were burnt. PW165 has deposed that from the aforesaid place Aswanth (A19)
took a black plastic sticker, a plastic film, an yellow paper and a plastic board and gave
them to him. PW165 has stated that he seized the aforesaid materials as per Ext.P45
mahazar. PW165 identified the aforesaid materials in the court (MO69 to MO72).
600. Prakasan (PW55) is an attestor to Ext.P45 mahazar. He did not support
the prosecution case. He would say that he does not know Aswanth (A19). He denied
having seen the recovery of any materials by the police at the instance of Aswanth
(A19). However, PW55 identified his signature in Ext.P45 mahazar.
601. Ext.P45 mahazar is also attested by PW131 Sub Inspector. He has
given evidence that he saw Aswanth (A19) taking MO69 to MO72 materials and giving
them to the Dy.S.P. He identified MO69 to MO72 materials in the court.
602. There is no sufficient ground to disbelieve the evidence of PW131 and
PW165 regarding the recovery of MO69 to MO72 materials as per Ext.P45 mahazar on
the basis of the information given by Aswanth (A19). However, there is nothing to find
that MO69 to MO72 materials are the remaining portions of the fake number plate which
was affixed on the Innova car KL-58/D 8144 or the sticker in Arabic language which was
found affixed on that vehicle. MO69 to MO72 materials were also not forwarded to the
Forensic Science Laboratory for examination. (Ext.P575 report from the Forensic
Science Laboratory shows that examination of hard board pieces was conducted. The

277

hard board pieces referred to as items 33 and 34 in Ext.P575 report are not the articles
seized by the police as per Ext.P45 mahazar).
603. PW165 has deposed that Aswanth (A19) made a statement to him that
the computer was in the shop and if he was taken, he would show the shop and the
computer. PW165 has deposed that on the basis of the aforesaid statement given by
Aswanth (A19) and as led by Aswanth (A19), he reached the establishment U2 Sun
Cool Service bearing door no. 12/958 of Thalassery Municipality. PW165 has deposed
that Aswanth (A19) pointed out a computer which was placed on a table at the southwestern corner of that establishment. PW165 has also stated that with the help of a
police constable from Cyber Cell, the hard disc of that computer was taken and it was
sealed and seized by him as per Ext.P21 mahazar. PW165 identified the hard disc
(MO73) in the court.
604. Bindu Mon (PW25) is an attestor to Ext.P21 mahazar. He is the owner of
the establishment U2 Sun Cool Service. He denied any acquaintance with Aswanth
(A19). He denied that Aswanth (A19) was an employee in his shop. He did not support
the prosecution case regarding seizure of the hard disc from the computer in his shop.
However, he identified his signature in Ext.P21 mahazar.
605. PW131 Sub Inspector is also an attestor to Ext.P21 mahazar. He has
given evidence regarding seizure of MO73 hard disc from the shop of PW25 at the
instance of Aswanth (A19) as per Ext.P21 mahazar.
606. There is no sufficient reason to disbelieve the evidence of PW131 and
PW165 regarding the seizure of MO73 hard disc from a computer in the shop of PW25.

278

There is also no reason to disbelieve the evidence of PW165 that it was on the basis of
the information given by Aswanth (A19) that MO73 hard disc was seized.
607. However, no evidence has been adduced by the prosecution to prove
that MO73 had disc was sent for forensic examination. Report, if any, obtained after
examination of the contents of the hard disc (MO73) is not in evidence. There is nothing
to connect MO73 hard disc with the sticker in Arabic language or the fake number plate
affixed on the Innova car KL-58/D 8144. As a result, recovery of MO73 hard disc does
not in any way connect Aswanth (A19) with the crime alleged to have been committed
by him.
608. In the aforesaid circumstances, there is no convincing evidence to find
that Aswanth (A19) had made the fake number plate KL-18/A 5964 and affixed it on the
Innova car Kl-58/D 8144. There is also no reliable evidence to find that Aswanth (A19)
was the person who made the sticker in Arabic language which was found affixed on the
Innova car KL-58/D 8144. There is also no evidence to find that Aswanth (A19) was
aware of any design to commit murder of T.P. Chandrasekharan and that he concealed it
with a view to facilitate the murder. Thus, the prosecution has failed to prove that
Aswanth (A19) committed the offences punishable under sections 465 and 302 read
with 109 and under section 118 of the Indian Penal Code.
Accused Dilshad (A20)
609. The charge against the accused Dilshad (A20) is that between
20.04.2012 and 04.05.2012, he obtained four SIM cards through Nissar (CW169) and
Jabir (CW170) and entrusted the SIM cards to the third accused Sunil Kumar with the
intention of aiding and facilitating the murder of T.P. Chandrasekharan and thereby he

279

abetted commission of the offence of murder. It is also alleged that with the knowledge
that his act will facilitate the murder of T.P. Chandrasekharan, he voluntarily concealed
the existence of the design to commit such murder.
610. Inspite of the allegation that Dilshad (A20) had obtained four SIM cards
through Nissar (CW169) and Jabir (CW170) the prosecution did not examine these
witnesses. Examination of these witnesses was given up by the prosecution. There is
absolutely no evidence to find that Dilshad (A20) had obtained any SIM card from any
person and entrusted it with the third accused.
611. There is also no evidence to find that Dilshad (A20) had knowledge of
the plan to commit murder of T.P. Chandrasekharan and that he concealed such plan.
612. The evidence of Subodh (PW17) has been discussed earlier. His
evidence that on 04.05.2012, at about 21.00 hours, he saw an Innova car parked near
the Old Age Home at Koroth Road and six or seven persons standing around the car
including T.K.Rajeesh (A4) and Sijith (A6) and also Dilshad (A20) and Fasalu (A21), two
persons previously known to him, is found to be reliable and trustworthy. Though the
prosecution has adduced evidence in the form of the testimony of PW17 to prove that
Dilshad (A20) had connection with Rajeesh (A4) and Sijith (A6) who were members of
the gang of assailants, in the absence of any charge against Dilshad (A20) that he had
connection with those accused or that he had abetted commission of the offence of
murder in any way other than by giving SIM cards to the third accused, the evidence of
PW17 has no relevancy to prove the charge framed against Dilshad (A20).
613. Therefore, it is only to be concluded that the prosecution has not
adduced any evidence to prove that Dilshad (A20) obtained SIM cards and entrusted

280

them to the third accused and thereby committed an offence punishable under section
302 read with 109 of the Indian Penal Code. The prosecution has also not proved that
Dilshad (A20) concealed the existence of the design to commit murder of T.P.
Chandrasekharan and committed an offence punishable under section 118 of the Indian
Penal Code.
Accused Muhammed Fasalu (A21)
614. The charge against the accused Muhammed Fasalu (A21) is that
between 25.04.2012 and 04.05.2012, he obtained and entrusted swords to the third
accused Sunil Kumar

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 thereby he abetted the murder of T.P.Chandrasekharan and
thereby committed an offence punishable under section 302 read with 109 of the Indian
Penal Code. It is also alleged that with the knowledge that his act will facilitate the
murder of T.P.Chandrasekharan, he voluntarily concealed the existence of the design to
commit such murder and thereby committed an offence punishable under section 118 of
the Indian Penal Code.
615. As noticed earlier, the evidence of Subodh (PW17) proves that on
04.05.2012, at about 21.00 hours, Muhammed Fasalu (A21) and Dilshad (A20) were
found near the Innova car which was parked near the Old Age Home at Koroth Road
and they were found talking with the other persons who were standing near the car. The
other persons standing there included T.K.Rajeesh (A4) and Sijith (A6). The evidence
of Subodh (PW17) also proves that three or four persons put materials like swords into
the car. However, the evidence of Subodh (PW17) does not prove that Muhammed
Fasalu (A21) was among the persons who put the materials like swords into the car.

281

PW17 has categorically stated in the cross examination that he could not identify those
persons. Therefore, the evidence of Subodh (PW17) is not sufficient to prove that
Muhammed Fasalu (A21) had obtained and entrusted swords with the third accused
Sunil Kumar or any member of the killer gang. The evidence of Subodh (PW17) is
sufficient to raise a strong suspicion that Muhammed Fasalu (A21) had connection with
T.K.Rajeesh (A4) and Sijith (A6). It does not help the prosecution to prove the charge
against Muhammed Fasalu (A21).
616. Another witness
examined by the prosecution to prove the charge against Muhammed Fasalu (A21) is
Subin (PW156). He did not support the prosecution. He denied acquaintance with
Muhammed Fasalu (A21). He denied the suggestion that he saw Muhammed Fasalu
(A21) entrusting the mobile phone of Sunil Kumar (A3) to Dipin (A29). It is true that
Subin (PW156) had made a statement (Ext.P300) under section 164 Cr.P.C before the
Judicial First Class Magistrate, Nadapuram. Even in that statement, Subin (PW156) had
not made any reference to Muhammed Fasalu (A21).

The prosecution has filed

application before this court to initiate prosecution against Subin (PW156)

for

committing the offence of perjury. The merits of that application shall be considered in
separate proceedings.

617. In the above circumstances, it is to be concluded that the prosecution

has failed to prove that Muhammed Fasalu (A21) had obtained and entrusted swords to
the third accused Sunil Kumar with the intention of aiding and facilitating the murder of
T.P.Chandrasekharan and thereby he committed an offence punishable under section
302 read with 109 of the Indian Penal Code. It is also not proved that Muhammed
Fasalu (A21) had concealed the existence of the design to commit murder of

282

T.P.Chandrasekharan and that he committed an offence punishable under section 118


of the Indian Penal Code.
Accused Sanoop (A22)
618. The charge against the accused Sanoop (A22) is that on 25.04.2012 and
26.04.2012, he travelled in the Innova car KL-58/D 8144 together 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 he committed an offence punishable under
section 302 read with 115 of the Indian Penal Code. It is also alleged that with the
knowledge that his act will facilitate the murder of T.P. Chandrasekharan, he concealed
the existence of the design to commit such murder.
619. Pramod (PW22) is the witness examined by the prosecution to prove the
charge against Sanoop (A22). The evidence of PW22 has been discussed earlier. The
evidence of PW22 is that on 26.04.2012, at about 16.00 hours, he saw Sanoop (A22)
coming in an Innova car and getting out of it and that T.K. Rajeesh (A4) was sitting in the
front seat of that car. On analysing the evidence of PW22 it has already been found that
it is not safe to place reliance upon his testimony. Therefore, the charge against Sanoop
(A22) cannot be proved on the basis of the evidence of PW22.
620. There is no other evidence against Sanoop (A22). There is no reliable
evidence to find that Sanoop (A22) made any attempt to point out T.P. Chandrasekharan
to the members of the gang of assailants. There is also no evidence to find that Sanoop
(A22) had knowledge of the plan to commit murder of T.P. Chandrasekharan and that he
concealed the existence of that plan. The prosecution has not been able to prove the
charges levelled against Sanoop (A22).

283

Accused Rajikanth (A25) and Dipin (A29)


621. The prosecution case against the accused Rajikanth (A25) and Dipin
(A29) is as follows: Sunil Kumar @ Kodi Suni (A3) had entrusted Dipin (A29) the task of
identifying T.P. Chandrasekharan. On the evening of 04.05.2012, Rajikanth (A25) drove
the motor cycle KL-58/E 2321 to Orkatteri. Dipin (A29) was the pillion rider of the motor
cycle. Thereafter, Dipin (A29) contacted Sunil Kumar (A3) to the mobile phone number
7736822709 using the mobile phone having the number 8606398416 and gave
information that T.P. Chandrasekharan was found near the motor cycle KL-18/A 6395.
On that day, at about 22.07 hours, while he was waiting near the flower shop of
Raveendran (A30), Dipin (A29) again contacted Sunil Kumar (A3) to the mobile phone
number 7736822709 from the mobile phone number 8606398416 and informed him that
T.P. Chandrasekharan was proceeding to Vallikkad on his motor cycle KL-58/A 6395.
Thus, Rajikanth (A25) and Dipin (A29) aided and facilitated the murder of
T.P. Chandrasekharan.
622. There is absolutely no evidence to find that on the evening of
04.05.2012, Rajikanth (A25) had driven the motor cycle KL-58/E 2321 to Orkatteri with
Dipin (A29) as pillion rider. Vinod (PW12) has given evidence that on 04.05.2012, at
about 19.30 20.00 hours, he saw Dipin (A29) coming on a motor cycle driven by
another person and entering into the flower shop of Raveendran (A30). He has not
identified Rajikanth (A25) as the person who was riding that motor cycle.
623. There is yet another charge against Rajikanth (A25) that he gave the
cheque leaf having the number 126222 issued to him from Kodiyeri Service Co-

284

operative Bank to Rafeek (A18) with a view to enable Rafeek (A18) to give it as security
for obtaining the Innova car KL-58/D 8144 on rent. The evidence of PW8, PW70 and
Exts. P52 and P396 documents prove that Ext.P6 cheque leaf belonging to Rajikanth
(A25) was given as security by Rafeek (A18) to obtain the Innova car KL-58/D 8144 on
rent. Rajikanth (A25) has not offered any explanation as to how his cheque leaf which
was issued to him from the bank came to the possession of Rafeek (A18). Rajikanth
(A25) has no case that he had lost the cheque leaf. He has no case that Rafeek (A18)
had clandestinely obtained the cheque leaf from his possession. Therefore, it has to be
found that Rajikanth (A25) had given Ext.P6 cheque leaf to Rafeek (A18). When he
gave the cheque leaf to Rafeek (A18), he would have necessarily asked Rafeek (A18)
what was the necessity of a blank cheque leaf. Rajikanth (A25) would have known from
Rafeek (A18) that the cheque leaf was required for giving as security for obtaining a
vehicle on rent. Necessarily, Rajikanth (A25) had given Ext.P6 cheque leaf to Rafeek
(A18) for giving it as security for obtaining a vehicle on rent.
624. Rajikanth (A25) should be attributed with the knowledge that if an
unsigned blank cheque leaf is given to another person, there is every chance of
misusing it. However, it is too much to assume that Rajikanth (A25) had knowledge that
the vehicle obtained on rent by Rafeek (A18) on the basis of the security of Ext.P6
cheque leaf would be used for facilitating the murder of T.P. Chandrasekharan. It cannot
be assumed that Rajikanth (A25) was aware of the real purpose for which Rafeek (A25)
needed the vehicle. Other than Ext.P6 cheque leaf, there is no evidence to connect
Rajikanth (A25) with the use of the Innova car KL-58/D 8144 for facilitating the murder of
T.P. Chandrasekharan.

285

625. The evidence of Dy.S.P Jossy Cherian (PW165) shows that he had
collected torn pieces of a card (MO7) from the Innova car KL-58/D 8144 when he
inspected that vehicle on 05.05.2012 at Punathilmukku. He has given evidence that
when he arranged the torn pieces of the card together in their order, it was found that it
was a card issued in the name of Rajikanth (A25) from the Friends Arts and Sports Club,
Kallilthazha showing his blood group.
626. Ajith (PW28) is the Secretary of Friends Arts and Sports Club,
Kallilthazha. His evidence shows that a blood group analysis camp was conducted by
that club on 08.02.2012 in connection with its anniversary. He has also given evidence
that card showing the blood group of the persons who had participated in the camp had
been issued. But, he would say that MO7 card was not issued from the club. PW28 also
denied producing any documents before the Dy.S.P, Vatakara. However, he admitted his
signature in Ext.P24 mahazar.
627. Dy.S.P Jossy Cherian (PW165) has deposed that on 08.05.2012, at
12.30 hours, PW28 produced before him the book showing the details of the persons
who had participated in the blood group analysis camp and he seized it as per Ext.P24
mahazar. PW165 identified the book (Ext.P174) in the court. The evidence of PW165
regarding the seizure of Ext.P174 book is corroborated by the testimony of Senior C.P.O
Rajeev (PW134) who has attested Ext.P24 mahazar. There is no sufficient ground to
disbelieve the evidence of PW165 and PW134 regarding the seizure of Ext.P174 book
as per Ext.P24 mahazar.
628. The entries in page 12 of Ext.P174 note book show that Rajikanth (A25)
had participated in the blood group analysing camp conducted by the Friends Arts and

286

Sports Club. Therefore, there cannot be any doubt with regard to the fact that MO7 card
was one issued to Rajikanth (A25) from that club.
629. However, the fact that MO7 card showing the name of Rajikanth (A25)
was found inside the Innova car KL-58/D 8144 when that vehicle was seen abandoned
at Punathilmukku on 05.05.2012 does not prove anything against him. It may at best
indicate that he had travelled in that vehicle after the date 25.04.2012 on which Rafeek
(A18) obtained that vehicle on rent. Even if it is accepted that Rajikanth (A25) had
travelled in that vehicle after the date 25.04.2012, in the absence of definite evidence
regarding the time at which Rafeek (A28) entrusted that vehicle to Anoop (A1), it is not
sufficient to prove that Rajikanth (A25) had connection with any member of the murder
squad.
630. In the aforesaid circumstances, there is no reliable evidence to find that
Rajikanth (A25) had intentionally aided or facilitated the murder of T.P. Chandrasekharan
in any manner. The prosecution has failed to prove that he has committed an offence
punishable under section 302 read with 109 of the Indian Penal Code.
631. Now the evidence against Dipin (A29) can be considered. Vinod (PW12)
has given evidence as follows: On 04.05.2012, he was coming out of Podotty
Restaurant in Orkatteri, after having tea there with friends. The time was then about
19.30 20.00 hours. PW12 saw a fat person coming on a motor cycle and stopping the
bike in front of the flower shop of Raveendran (A30). A lean person was the pillion rider
of that motor cycle. PW12 saw both of them entering into the flower shop of Raveendran
(A30). Later, he saw the person who was the pillion rider of the motor cycle in the
television and newspapers as the person arrested by the police in connection with the

287

murder of T.P. Chandrasekharan. PW12 identified Dipin (A29) in the court as the
aforesaid person.
632. PW12 has stated on cross examination that nearly half an hour after
having tea, he had seen T.P. Chandrasekharan there near the vegetable shop. He had
also talked with T.P.Chandrasekharan at the vegetable shop. PW12 would say that
Chandrasekharan left the vegetable shop at about 20.45 - 21.00 hours on that day.
633. PW12 has stated that he is a sympathizer of R.M.P. It is not a sufficient
ground to disbelieve his testimony. During the cross examination of PW12 by the
learned counsel for A1 to A3, it has been brought out that T.P. Chandrasekharan was
seen in Orkatteri town at about 21.00 hours and also that PW12 had occasion to talk
with him. It has given more credibility to the testimony of PW12.
634. The evidence of Dy.S.P Santhosh (PW166) shows that it was on
15.05.2012 that he arrested Dipin (A29) and Raveendran (A30). The evidence of PW12
is that he saw the photograph of Dipin (A29) in the newspapers after his arrest. The
statement of PW12 was recorded by the police only on 26.06.2012. When PW12 saw
the photograph of Dipin (A29) in the newspapers after his arrest on 15.05.2012, he
(PW12) might not have felt that what he saw on the evening of 04.05.2012, that is, Dipin
(A29) going into the flower shop of Raveendran (A30), was a matter of great
significance. He had told A.K. Babu, a local leader of R.M.P, about seeing the
photograph of Dipin (A29) in the newspaper. Even if it is assumed that it was at the
instance of A.K. Babu that he later went to the police and told them about what he saw
on the evening of 04.05.2012, there is nothing strange or unusual about it. It is not a
sufficient ground to disbelieve his testimony. May be it was only when A.K. Babu

288

convinced him about the significance of the matter that he felt it proper to tell the police
what he saw on the evening of 04.05.2012 when he was in Orkatteri town. PW12 is a
coolie worker. One cannot expect rustic persons like him to understand the significance
of small matters in the investigation of a murder case. The evidence of PW12 that he
saw Dipin (A29) on 04.05.2012, at about 19.30 - 20.00 hours, going into the flower shop
of Raveendran (A30) in Orkatteri town is reliable and trustworthy.
635. However, there is absolutely no evidence to prove that Dipin (A29)
contacted Sunil Kumar (A3) to the mobile phone number 7736822709 from the mobile
phone number 8606398416 and informed Sunil Kumar (A3) that he found
T.P. Chandrasekharan near the motor cycle KL-18/A 6395. Proof of a call from the
number 8606398416 to the number 7736822709 does not help the prosecution in any
manner. There is absolutely no evidence to connect Dipin (A29) with the SIM card
8606398416 or any mobile phone in which that SIM card was inserted for use. In the
absence of such evidence, proof of calls between the numbers 8606398416 and
7736822709 does not lead the prosecution anywhere.
636. The evidence of Rajeevan (PW15) has been discussed earlier. His
evidence is that on 02.05.2012, at about 21.00 hours, near the industrial estate of
Kooroth Road, he saw Rameesh (A28) and Dipin (A29), two persons already known to
him, putting into the Innova car KL-58/D 8144 articles in a gunny bag and at that time,
Manoj Kumar (A2) and Muhammed Shafi (A5) were standing near the car. It has already
been found that the evidence of PW15 is reliable and trustworthy.
637. However, the evidence of PW15 does not help the prosecution to prove
the specific charge against Dipin (A29) that he aided and facilitated the murder of

289

T.P. Chandrasekharan by informing Sunil Kumar (A3) about the movements of


T.P.Chandrasekharan.
638. Babu (PW21) has given evidence that on 04.05.2012, at about 22.30
hours, after having a tea from Highborn Hotel in Orkatteri, he was proceeding to the
road. Then he saw Dipin (A29), who was known to him, coming through the road on the
western side of the hotel. Then an Innova car came and stopped near Dipin (A29). Dipin
(A29) entered into the car. The car was then driven away. It was a light colour car. The
number of the car was KL-18/A 5964. There were letters in Arabic language on the rear
side of the car. There was street light there. PW21 identified the Innova car parked in the
compound of the court as the car which he saw on the night of 04.05.2012.
639. Even if the evidence of PW21 is accepted as reliable and trustworthy, it
only proves that immediately after the murder of T.P.Chandrasekharan, Dipin (A29) had
travelled in the car which was used by the assailants. The evidence of PW21 does not
help the prosecution to prove that Dipin (A29) had informed Sunil Kumar (A3) the
whereabouts of T.P.Chandrasekharan immediately before the murder.
640. Dr. Ajesh (PW160) has given evidence that as per the order of the
Judicial First Class Magistrate, Vatakara he had collected sample of blood and hair from
the body of Dipin (A29) on 28.05.2012. He has deposed that he packed and sealed the
samples and entrusted them with A.S.I Muhammed Rafi who had escorted the accused.
641. A.S.I Muhammed Rafi (PW114) has given evidence that he had
produced Dipin (A29) before Dr. Ajesh (PW160) for collecting sample of blood and hair.
He has also given evidence that the doctor collected samples of blood and hair from the
body of Dipin (A29) and put them in a cover and entrusted the cover with him. PW114

290

has deposed that he produced the aforesaid cover before Dy.S.P Santhosh (PW166)
and that the Dy.S.P seized it as per Ext.P131 mahazar. PW114 identified his signature in
Ext.P131 mahazar.
642. Dy.S.P Santhosh (PW166) has given evidence that he seized the
samples of blood and hair of Dipin (A29) collected by Dr.Ajesh (PW160) and produced
before him by A.S.I Muhammed Rafi (PW114) as per Ext.P348 mahazar. He produced
them before the court as per Ext.P475 property list. The samples were forwarded to the
Forensic Science Laboratory, Thiruvananthapuram as per Ext.P476 forwarding note.
643. Ext.P572 report issued from the Forensic Science Laboratory,
Thiruvananthapuram shows that the sample hairs of Dipin (A29) were compared with
the hairs collected by Scientific Assistant Ajesh Thekadavan (PW148) from the Innova
car KL-58/D 8144 which was found abandoned at the place Punathilmukku on
05.05.2012. On such comparison it has been found that three hairs found in the Innova
car KL-58/D 8144 were similar to the body hair of Dipin (A29).
644. The presence of the body hair similar to the body hair of Dipin (A29) in
the Innova car KL-58/D 8144 corroborates the evidence of PW21 that he saw Dipin
(A21) travelling in that car.
645. However, as already noticed, the fact that Dipin (A29) had travelled in
the Innova car KL-58/D 8144 immediately after the murder of T.P. Chandrasekharan
does not help the prosecution to prove the charge against him that he informed Sunil
Kumar (A3) about the movements and whereabouts of T.P. Chandrasekharan
immediately before the murder. A major part of the evidence adduced against Dipin
(A29) is with regard to his contact with the assailants and the assistance given by him to

291

provide them weapons. The prosecution does not derive any benefit from such evidence
to prove the specific charge against Dipin (A29) that he contacted Sunil Kumar (A3)
over the mobile phone and informed him the whereabouts and movements of
T.P. Chandrasekharan

and also the number of

the motor cycle in

which

T.P. Chandrasekharan was travelling at that time. The reason is that the prosecution
could not establish any link between Dipin (A29) and the SIM card 8606398416 or the
mobile phone in which that SIM card was inserted for its use.
646. There is also no convincing evidence to prove that Dipin (A29) had
knowledge of the plan to commit murder of T.P. Chandrasekharan and that he concealed
the existence of such plan. The evidence of PW15 proves that Dipin (A29) and
Rameesh (A28) were found putting articles in a gunny bag into the Innova car
KL-58/D 8144 on the night of 02.05.2012. But, the evidence of PW15 does not show that
the gunny bag put by Dipin (A29) into the Innova car contained swords. It cannot be
assumed that the articles inside the gunny bag were swords. Such an assumption would
have been made only if prosecution had adduced evidence to prove that Dipin (A29)
had acquired or collected swords in a gunny bag and he had kept them with him. There
is no such evidence. In these circumstances, merely for the reason that Dipin (A29) had
contact with some members of the gang of assailants, it cannot be found that he was
aware of the plot to murder T.P.Chandrasekharan and that he concealed the existence of
such plot.
647. In short, the prosecution has not been able to prove beyond reasonable
doubt the charges levelled against Dipin (A29) under section 302 read with 119 and
under section 118 of the Indian Penal Code.

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Accused Rajith (A27)


648. The charge against the accused Rajith (A27) is three fold. (1) Between
24.04.2012 and 04.05.2012, he obtained and entrusted swords to the accused Sunil
Kumar

(A3)

with

the

intention

of

aiding

and

facilitating

the

murder

of

T.P. Chandrasekharan (2) On 02.05.2012 and 03.05.2012, with the assistance of


Raveendran (A30), he found out the whereabouts of T.P. Chandrasekharan in Orkatteri
Town for the purpose of causing his death (3) He concealed the existence of the design
to murder T.P. Chandrasekharan.
649. Shijil (PW11) has given evidence as follows: On 02.05.2012, at about
19.00 19.30 hours, he was standing near the bus stop in Orkatteri Town in front of a
bunk shop, talking with friends. Then two youngsters came on a motor cycle and
stopped the motor cycle near him. It appeared to PW11 that they were waiting for
somebody. They did not get down from the motor cycle. PW11 saw K.C. Ramachandran
(A8) coming near them and talking with them. Thereafter, the persons who came on the
motor cycle got down from it and stood at the bus stop. K.C. Ramachandran (A8)
proceeded to the way leading to the flower shop of Raveendran (A30). At that time,
T.P. Chandrasekharan was standing in front of the mobile phone shop there. Then,
PW11 saw Raveendran (A30) approaching the persons who came on the motor cycle
and talking with them. At that time, there were some white letters in the hands of
Raveendran (A30). Thereafter, Raveendran (A30) went near T.P. Chandrasekharan and
gave him a letter and talked with him. The persons who came on the motor cycle were
seeing it. After giving the letter to T.P. Chandrasekharan, Raveendran (A30) talked with
the persons who came on the motor cycle. Thereafter, Raveendran (A30) went to his

293

shop and the persons who came on the motor cycle went to Eramala side on that
vehicle. PW11 identified in the court K.C. Ramachandran (A8) and Raveendran (A30).
He also identified in the court Rajith (A27) and Rameesh (A28) as the two persons came
on the motor cycle.
650.

Learned

counsel

for

the

accused

would

contend

that

T.P. Chandrasekharan was a candidate in the Lok Sabha election and he was a person
well-known to the people and therefore, there is inherent improbability in the case of the
prosecution that there was necessity for the accused Rajith (A27) and Rameesh (A28)
to get him identified by other persons. This contention does not merit acceptance. Rajith
(A27) and Rameesh (A28) were not persons belonging to Orkatteri. They were not
persons

belonging

to

Onchiyam

Panchayath. Therefore,

it

is

probable

that

T.P. Chandrasekharan was a person not known to them. Every citizen in a constituency
may not personally know the candidates in a Lok Sabha election.
651. However, even if the evidence of PW11 is accepted as reliable and
trustworthy, by itself, it does not prove anything against Rajith (A27). The evidence of
PW11 would only prove that on the evening of 02.05.2012, Rajith (A27) found out the
identity of T.P. Chandrasekharan with the assistance of Raveendran (A30). Without
anything more, it does not help the prosecution to prove the charge against him that he
used that knowledge or information for facilitating the murder of T.P. Chandrasekharan.
There is no evidence to find that Rajith (A27) subsequently tracked the movements of
T.P. Chandrasekharan and informed any member of the gang of assailants about the
whereabouts of T.P. Chandrasekharan. There is no evidence to find that Rajith (A27)
pointed out T.P. Chandrasekharan to any of the assailants.

294

652. Dy.S.P Santhosh (PW166) has given evidence that when Rajith (A27)
was questioned by him in police custody, Rajith (A27) told him that he had kept that
vehicle in the house of Pavithran in Mahe and if he was taken, he would show that
house and the vehicle. PW166 has stated that on the basis of the aforesaid information,
as led by Rajith (A27), he reached the house having the number NFM/5/213 of
Pavithran and that Rajith (A27) pointed out to him the motor cycle KL-58/F 2321 which
was kept under timber logs in a shed on the southern side of the house. PW166 seized
the motor cycle as per Ext.P25 mahazar.
653. Recovery of the motor cycle KL-58/F 2321 by PW166 on the basis of the
confession statement given by Rajith (A27) does not prove anything against him. The
prosecution has no case that Rajith (A27) used the aforesaid motor cycle for any
purpose. The prosecution case is that it is the motor cycle driven by Rajikanth (A25) to
track down the movements of T.P. Chandrasekharan. Even if it is assumed that it is the
motor cycle used by Rajith (A27) when he came to Orkatteri to identify
T.P. Chandrasekharan with the help of Raveendran (A30), recovery of that vehicle by
PW166 on the basis of the confession statement of Rajith (A27) does not prove anything
further against Rajith (A27).
654. Ext.P214 is the application given by Rajith (A27) to the Airtel Company
for obtaining SIM card and Ext.P215 is the copy of the proof of identity. Ext.P214 shows
that the SIM card 8129392004 was issued to Rajith (A27). Ext.P216 is the call data
record of that number certified by the Nodal Officer (PW150) of the Airtel Company.
Ext.P216 shows that there was frequent contact between the number 8129392004 and
the number of Anoop (A1), that is, 9544097009 during the period from 28.04.2012 to

295

04.05.2012. However, the mobile phone calls are not sufficient to prove the specific
charge levelled against Rajith (A27).
655. There is absolutely no evidence to prove the charge against Rajith (A27)
that he obtained and entrusted swords to Sunil Kumar (A3) or any other member of the
gang of assailants.
656. There is also no evidence to prove that Rajith (A27) was aware of the
plot to kill T.P. Chandrasekharan and that he concealed the existence of such plot for
murder.
657. The prosecution has, therefore, failed to prove the offences punishable
under section 302 read with 115 and 119 and under section 118 of the Indian Penal
Code against Rajith (A27).
Accused Rameesh @ Kuttu (A28)
658. The charge against the accused Rameesh (A28) is also that on
02.05.2012 and 03.05.2012, with the assistance of Raveendran (A30), he found out the
whereabouts of T.P. Chandrasekharan in Orkatteri Town for the purpose of causing his
death and that he concealed the existence of the design to commit murder of
T.P. Chandrasekharan.
659. The evidence of Shijil (PW11) has already been referred to. What is
stated about the value and utility of his evidence with regard to the case against Rajith
(A27) is equally applicable to the case against Rameesh (A28).
660. There is also the evidence of Rajeev (PW15) against Rameesh (A28)
that he saw Rameesh (A28) and Dipin (A29) putting articles in a gunny bag into the
Innova car KL-58/D 8144 on the night of 02.05.2012. However, there is no charge

296

against Rameesh (A28) that he had procured and entrusted swords to the assailants for
facilitating the murder of T.P. Chandrasekharan. Further, the evidence of PW15 does not
prove that the gunny bag put into the Innova car KL-58/D 8144 by Rameesh (A28)
contained swords or other weapons.
661. Subina Baburaj (PW83) was examined by the prosecution to prove that
the SIM card 9946452616 obtained in her name was given to Rameesh (A28) and that it
was Rameesh (A28) who was using that SIM card. PW83 did not support the
prosecution case. But, she admitted that Ext.P62 is the copy of her election identity
card. It is the proof of identity given alongwith Ext.P272 application made to Vodafone
Company for obtaining SIM card. PW83 has not offered any explanation as to how
Ext.P62 happened to be in the possession of Vodafone Company. Therefore, it can
necessarily be inferred that the SIM card 9746452616 was issued in the name of PW83
in the basis of Ext.P272 application made by her.
662. Dy.S.P Santhosh (PW166) has given evidence that when he arrested
Rameesh (A28), he seized the mobile phone (MO68) found in his possession as per
Ext.P158 mahazar. The I.M.E.I number of this mobile phone is 35907404672346.
Ext.P274 is the call data record certified by the Nodal Officer (PW152) of the Vodafone
Company. Ext.P274 shows that the I.M.E.I number of the mobile phone in which the SIM
card 9946452616 was inserted and used is 35907404672346. Therefore, there cannot
be any doubt with regard to the fact that the SIM card 9946452616 was used by
Rameesh (A28) with MO68 mobile phone. Ext.P274 call data record shows that on
02.05.2012, calls had been made from the number 9567890119 to the number

297

9946452616. But, these calls are not sufficient to prove the charge levelled against
Rameesh (A28).
663. There is also no evidence to presume that Rameesh (A28) had
knowledge about the plan to murder T.P. Chandrasekharan and that he concealed the
existence of such plan.
664. The prosecution has, therefore, failed to prove beyond reasonable doubt
the charge under section 302 read with 115 and under section 118 of the Indian Penal
Code against Rameesh (A28).
Accused Raveendran (A30)
665. The charge against the accused Raveendran (A30) is that on
02.05.2012 and 03.05.2012, he assisted Rajith (A27) and Rameesh (A28) to identify
T.P. Chandrasekharan and to find out his whereabouts for causing his death.
666. The evidence of Shijil (PW11) has already been discussed. The
evidence

of

PW11

would

prove

that

Raveendran

(A30)

gave

letter

to

T.P. Chandrasekharan who was standing in front of the mobile shop at Orkatteri and that
he did such act when Rajith (A27) and Rameesh (A28) were onlookers and that
Raveendran (A30) had talked with Rajith (A27) and Rameesh (A28) before and after
giving the letter to T.P. Chandrasekharan. It can be inferred that the act of Raveendran
(A30) did actually amount to an act of pointing out T.P. Chandrasekharan to Rajith (A27)
and Rameesh (A28). But, it cannot be found that the act of Raveendran (A30) amounted
to intentionally aiding or facilitating the murder of T.P. Chandrasekharan. As already
found, the prosecution has not proved that Rajith (A27) and Rameesh (A28) had
informed the movements and whereabouts of T.P. Chandrasekharan to any member of

298

the gang of assailants. If the act of Raveendran (A30) amounted to pointing out
T.P. Chandrasekharan to any one of the assailants thereby enabling the assailants to
identify the person to be killed, then it could have been found that such act amounted to
abetting the offence of murder. The mere fact that Raveendran (A30) pointed out T.P.
Chandrasekharan to two other persons, without anything more, does not amount to
abetment of an offence.
667. The other charge against Raveendran (A30) is that inspite of having
knowledge that a conspiracy had taken place at his flower shop at Orkatteri on
02.04.2012 to murder T.P. Chandrasekharan he concealed the existence of such
conspiracy with the intention to facilitate the murder. It has already been found that the
prosecution could not prove that a conspiracy to murder T.P. Chandrasekharan took
place at the flower shop of Raveendran (A30). Therefore, no question of concealing the
existence of such conspiracy arises.
668. Therefore, the prosecution has failed to prove that Raveendran (A30)
committed the offences punishable under section 302 read with 115 and under section
118 of the Indian Penal Code.
Commission of the Offence Under Section 118 I.P.C by Rafeek (A18)
669. After discussion of the evidence on points 11 and 12, it has been found
that Rafeek (A18) had intentionally aided commission of the offence of murder by taking
the Innova car KL-58/D 8144 on rent and making it available to Anoop (A1) for using it in
the commission of murder. It is alleged that Rafeek (A18) voluntarily concealed the
existence of the design to commit murder of T.P. Chandrasekharan with the intention of
facilitating the commission of such murder.

299

670. In order to prove the offence under section 118 of the Indian Penal
Code, there must be proof of the following particulars: (1) The existence of the design to
commit the offence. (2) Concealment of the existence of the design to commit the
offence by the accused by his act or by an illegal omission or by making false
representation.
671. In the instant case, by making available the Innova car KL-58/D 8144 to
Anoop

(A1),

the

accused

Rafeek

(A18)

intentionally

aided

murder

of

T.P. Chandrasekharan. But, it does not mean that Rafeek (A18) had full knowledge of
the design or the plan or plot made by the assailants for committing the murder.
Therefore, it cannot be found that with the intention to facilitate the murder of
T.P. Chandrasekharan, he voluntarily concealed the existence of the design to commit
such murder. At any rate, he is entitled to get benefit of doubt in respect of the charge
against him under section 118 of the Indian Penal code.
Harbouring of Sijith (A6) by Pradeepan (A31)
672.

The prosecution has alleged that on 04.05.2012 at about 23.30 hours

the accused Pradeepan(A31)took Sijith (A6), 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 cause of the injury sustained by
Sijith (A6) and also that his name was Vijesh and caused evidence of the commission of
the offence of murder to disappear. It is also alleged that by such act Pradeepan (A31)
provided harbour to Sijith (A6) within the meaning of section 52A of the Indian Penal
Code.

300

673. Regarding the treatment of Sijith (A6) in the Chokli Medical Centre, the
evidence of Sheeja (PW49) indicates that treatment was given to Sijith (A6) in the hospital at about 23.30 hours on 04.05.2012. But, there is nothing in the evidence of these
witnesses to find that it was Pradeepan (A31) who had brought Sijith (A6) to the hospital. There is absolutely no evidence to prove that it was Pradeepan (A31) who took Sijith
(A6) to C.M.C. Hospital in Chokli for treatment. The charge against Pradeepan (A31)
that he harboured Sijith (A6) is not proved.
Accused Shanoj @ Kelan (A33)
674. The charge against the accused Shanoj (A33) is that on 04.05.2012, at
about 23.30 hours, he took the accused T.K. Rajeesh (A4) to Lyndas Lodge in
Koothuparamba on the motor cycle KL-58/G 1768 with the knowledge that T.K.Rajeesh
(A4) was one of the persons who committed murder of T.P. Chandrasekharan and that
Shanoj (A33) took a room in that hotel in his name and allowed T.K.Rajeesh (A4) to
reside in that room and thus harboured/concealed T.K. Rajeesh (A4) with the intention of
screening him from legal punishment and thereby Shanoj (A33) has committed an
offence punishable under section 212 of the Indian Penal Code.
675. Sherlet (PW38) was the receptionist in the hotel by name Lyndas
Residency in Koothuparamba. He has deposed that he was on duty in the hotel on
04.05.2012. But he would say that he does not know the persons who had taken rooms
on rent in that hotel on 04.05.2012. He would say that he does not know a person by
name Shanoj. He has stated that he does not remember whether Shanoj had called him
over phone at about 23.00 hours on 04.05.2012 and wanted a room. PW38 was treated
as hostile to the prosecution. He was confronted with the registration card (Ext.P33) of

301

the hotel. Then he admitted that the entries in that card are in his handwriting. He
would also admit that
taken on rent

as per Ext.P33 registration card a person by name Shanoj had

room No.2002 in the hotel on 04.05.2012.

But, he denied any

acquaintance with Shanoj (A33) and T.K. Rajeesh (A4). He did not identify Shanoj (A33)
and T.K. Rajeesh (A4) in the court.
676. PW38 has admitted that on 20.05.2012 police had come to the hotel
and seized documents including Ext.P33 registration card from the hotel. He would say
that it was the manager of the hotel (Sathyajit) who produced the documents before the
police. He would further say that the documents were given by him to the manager and
that the police seized them.
677. On cross examination by the defence, PW38 has stated that it was at
the office of the Vatakara Circle Inspector that he made entries in Ext.P33 registration
card and that the entries in it were made by him as directed by the police.
678. The evidence of Vatakara Circle Inspector V.V. Benny (PW163) and
Ext.P350 arrest memo prepared by him which contains the signature of Shanoj (A33)
prove that he (PW163) had arrested Shanoj (A33) at 17.00 hours on 17.05.2012.
679.

PW163 has given evidence that as per the order of the court he

obtained Shanoj (A33) in custody for a period of four days till 21.05.2012. PW163 has
stated that on 20.05.2012, Shanoj (A33) made a statement to him that if he was taken,
he would show the lodge.

PW163 has stated that he reached the lodge by name

Lyndas Residency in Koothuparamba Town with Shanoj (A33) (name of Shanoj is


mistakenly/wrongly recorded in the deposition of PW163 as Manojan). PW163 has also
stated that the manager of the lodge Sathyajit produced before him registration card, bill
book and copy of the driving licence of Shanoj (A33) and that he seized the aforesaid

302

documents as per Ext.P147 mahazar. PW163 identified in the court the registration card
(Ext.P33), copy of the driving licence of Shanoj (Ext.P149) and the bill book (Ext.P148)
which were seized by him as per Ext.P147 mahazar.
680. PW124 Sreedharan, Senior Civil Police Officer, has deposed that he
had accompanied PW163 when the accused Shanoj (A33) was taken to Lyndas Lodge.
He has deposed that PW163 demanded the manager of the aforesaid lodge to produce
the documents regarding the occupation of T.K. Rajeesh (A4) and Shanoj (A33) in the
lodge.

Then the manager of the lodge produced before the Circle Inspector the

registration card, bill book and copy of the driving licence of Shanoj (A33) and the Circle
Inspector seized the aforesaid documents as per Ext.P147 mahazar.

PW124 also

identified in the court the documents seized by the Circle Inspector (PW163) as per
Ext.P147 mahazar. He also identified Shanoj (A33) in the court.
681. The evidence of PW163 and PW124 proves that

on 20.05.2012

Exts.P33, P148 and P149 documents were seized from the hotel by name Lyndas
Residency in Koothuparamba by the police. There is no sufficient ground to discard the
evidence of PW163 and PW124 that Sathyajit, who was the manager of the hotel,
produced the aforesaid documents to the Circle Inspector (PW163) when he reached
the hotel with the accused Shanoj (A33).
682. As noticed earlier, PW38 who was the receptionist in the hotel has
admitted that the entries in Ext.P33 registration card are in his handwriting. During the
cross examination of PW38 by the defence, he has deposed that to his knowledge, the
police had seized blank registration cards from the hotel. He has also deposed in the
cross examination by the defence that he made the entries in Ext.P33 registration card
at the office of the Circle Inspector, Vatakara at the instance of the police.

303

683. The evidence of PW38 that it was at the office of the Circle Inspector,
Vatakara that he wrote the entries in Ext.P33 registration card cannot be accepted as
reliable and trustworthy. On cross examination by the learned Special Public Prosecutor
he had earlier admitted that on 20.05.2012 the police had seized the documents
including Ext.P33 registration card from the hotel. He had also stated that it was he who
gave the documents to the manager of the hotel for producing them before the police. A
specific suggestion was made to PW38 in the cross examination by the learned Special
Public Prosecutor that at the time of seizing Ext.P33 document itself, the Circle
Inspector had asked

him explanation regarding the check-in time shown in that

document. PW38 denied this suggestion but he did not state that the registration card
(Ext.P33) was blank at the time when it was produced before the police on 20.05.2012
at he hotel. According to the prosecution, it was at about 23.30 hours on 04.05.2012,
that Shanoj (A33) had taken the room on rent in the hotel. However, as per the entry
made in Ext.P33 registration card by PW38, it was at 8.30 p.m on 04.05.2012 that
Shanoj (A33) had taken the room on rent. If Ext.P33 is a document concocted by the
police, they could have directed PW38 to make entry in that document regarding the
check-in time of Shanoj (A33) as 23.30 hours on 04.05.2012. The very fact that the time
of taking the room on rent by Shanoj (A33) is entered as 20.30 hours

in Ext.P33

registration card would show that the entries in it are genuine and that it is not a
document concocted by the police. Moreover, in P148(a) bill issued in the name of
Shanoj (A33) also, the time of arrival is shown as 20.30 hours on 04.05.2012. The
defence has no case that Ext.P148 bill book was also concocted by the police with a
view to falsely implicate Shanoj (A33) in the case.

304

684. Ext.P149 is the copy of the driving licence of Shanoj (A33).

In the

statement filed by Shanoj (A33) after his examination under section 313 Cr.P.C it is his
plea that when he was arrested by the police his purse and driving licence and election
identity card were taken by the police. Not even a suggestion was made to PW163
Circle Inspector that at the time of arresting Shanoj (A33) the aforesaid documents had
been seized from Shanoj (A33). Therefore, the plea of the accused Shanoj (A33) in this
regard lacks credibility.
685. The evidence of PW163 and PW124 would show that Ext.P149, the
copy of the driving licence of Shanoj (A33), was produced before the police by the
manager of the hotel. The evidence of PW38 shows that normally proof of identity has
to be given in the hotel by a person who wants to take room on rent. Shanoj (A33) has
not given any satisfactory explanation as to how copy of his driving licence came to be
in the possession of the manager of the hotel. As noticed earlier, his plea that his driving
licence and election identity card were taken from him by the police at the time of his
arrest lacks credibility. The very fact that copy of his driving licence was seized by the
police from the hotel suggests that he had given that document in the hotel as proof of
identity at the time of taking the room on rent.
686.

In Ext.P33 registration card, the name of the person who occupied

room no. 2002 in the hotel on the night of 04.05.2012 is shown as Shanoj. C,
Kizhakkayil House, Thalassery. The copy of the driving licence of the accused Shanoj
(Ext.P147) seized by the police from the hotel would indicate that the person Shanoj
shown in Ext.P33 registration card is none other than the accused Shanoj (A33).
Ext.P33 registration card also shows that it was at 20.30 hours on 04.05.2012 that

305

Shanoj (A33) had taken room on rent in the hotel. Ext.P33 also shows that two persons
had occupied the room in the hotel.
687. Ext.P148(a) is the copy of the bill contained in Ext.P148 bill book of the
hotel. It is the copy of the bill issued in the name of Shanoj (A33). It also shows that on
04.05.2012 at 20.30 hours Shanoj (A33) had taken room no.2002 on rent in the hotel
Lyndas Residency. Ext.P148(a) also shows that two persons had occupied that room.
688. Exts. P33, P149 and P148(a) documents prove beyond doubt that
Shanoj (A33) had taken on rent room no.2002 in the hotel by name Lyndas Residency in
Koothuparamba at 20.30 hours on 04.05.2012 and another person had shared that
room with him. It is true that the investigating officer did not seize from the hotel the
registration book which contains the names of the persons who had taken on rent the
rooms in the hotel. However, even in the absence of the registration book kept in the
hotel, Exts.P33, P147 and P148(a) documents are sufficient to prove that Shanoj (A33)
had occupied room no.2002 in the hotel on the night of 04.05.2012 and there was also
another person with him during that night.
689. The mere fact that there was another person with Shanoj (A33) in
occupation of the room in the hotel does not lead to an inference that it was
T.K. Rajeesh (A4) who had shared the room with him. The prosecution has adduced no
reliable evidence to prove that T.K. Rajeesh (A4) was the person who occupied the room
in the hotel alongwith Shanoj (A33). PW38 did not identify either T.K. Rajeesh (A4) or
Shanoj (A33) in the court as the persons who had occupied the room in that hotel on the
night of 04.05.2012.
690. There is no obligation on accused Shanoj (A33) to prove that the other
person who shared the room in the hotel with him was not T.K. Rajeesh (A4). The

306

burden is on the prosecution to prove that T.K. Rajeesh (A4) was the person who shared
the room with Shanoj (A33) in the hotel on the night of 04.05.2012. Only when the
prosecution adduces some evidence to prove that T.K. Rajeesh (A4) was the person
who shared the room in the hotel with Shanoj (A33), the burden would shift on the
accused Shanoj (A33) to prove that it was not T.K. Rajeesh (A4) but some other person.
691.

Ext.P282 is the application made by Shanoj (A33) to Vodafone

Company to get mobile phone connection and Ext.P283 is the copy of his driving licence
given by him alongwith Ext.P282 application. Ext.P282 document would show that the
SIM card having the number 8086407459 was issued in the name of Shanoj (A33).
Ext.P294 is the call data record of the mobile phone connection number 8086407459
(SIM).

The

details

of

the

outgoing

and

incoming

calls

on

the

night

of

04.05.2012/05.05.2012 shown in Ext.P294 document do not show any contact of that


number with the mobile phone number of

T.K.Rajeesh (A4) , that is, 9544785375.

Ext.P294 shows that Shanoj (A33) had contacted T.K.Rajeesh (A4) in the aforesaid
number on the previous days. The calls made by Shanoj (A33) to T.K.Rajeesh (A4) on
the previous days or to the other assailants, if any, by themselves do not suggest that
T.K.Rajeesh (A4) was the person for whom he had arranged accommodation in the
Lyndas Residency on the night of 04.05.2012.
692. Ext.P321 is the application made by Shanoj (A33) to the B.S.N.L for
obtaining mobile phone connection and Ext.P322 is the copy of the election identity card
given by him along with that application. Ext.P321 document shows that the SIM card
having the number 9495494763 was allotted to Shanoj (A33) by the B.S.N.L. Ext.P323
is the call data record in respect of the SIM card having the number 9495494763 for the
period from 20.04.2012 to 30.06.2012. The details of the outgoing and incoming calls

307

shown in Ext.P323 document reveal that at 23.43.48 hours and 23.44.38 hours on
04.05.2012, that is, shortly after the murder of T.P. Chandrasekharan, calls had been
made from the number 9544785375 to the number 9495494763. The SIM card having
the number 9544785375 belongs to T.K. Rajeesh (A4). Ext.P323 also shows that at
08.46.55 hours and 09.00.14 hours on 05.05.2012, calls had been made from the
number 9544785375 to the number 9495494763. This means that within one and a half
hours of the murder of T.P. Chandrasekharan, T.K. Rajeesh (A4) had made two calls to
the mobile phone number of Shanoj (A33) and on the next day morning also
T.K. Rajeesh (A4) had made two calls to that number.

These calls made by T.K.

Rajeesh (A4) to the mobile phone number of Shanoj (A33) would indicate close contact
between T.K. Rajeesh (A4) and Shanoj (A33) immediately after the murder of
T.P. Chandrasekharan. However, on the basis of this circumstance alone, it cannot be
found that Shanoj (A33) had taken T.K. Rajeesh (A4) to the hotel Lyndas Residency and
made arrangements for the occupation of T.K. Rajeesh in that hotel.
693. PW163 has given evidence that Shanoj (A33) made a statement to him
that he had kept the motor cycle at Pattiyam and if he was taken, he would show it.
PW163 has deposed that on the basis of the aforesaid information given by Shanoj
(A33), as guided by Shanoj (A33), he proceeded with Shanoj (A33) and reached near a
cinema theatre at Pattiyam and that Shanoj (A33) pointed out to him the motor cycle
KL-58/G 1768 which was parked at the margin of the road in front of the theatre. PW163
has deposed that he seized the aforesaid motor cycle as per Ext.P354 mahazar.
694. Evidence regarding the conduct of Shanoj (A33) leading the police to
the place where the motor cycle KL-58/G 1768 was kept is admissible under section 8 of
the Evidence Act. But, it is not a circumstance, which would by itself , prove that the

308

aforesaid vehicle was used by Shanoj (A33) to take T.K. Rajeesh (A4) to the hotel
Lyndas Residency or any other place.
695. PW163 has deposed that on the basis of the information and details
obtained from Shanoj (A33) he had given notice to Sandeep (PW42) to produce the car
KL-58/G 3238.

PW163 has also deposed that Sandeep (PW42) produced the car

KL-58/G 3238 and he seized it as per Ext.P37 mahazar.


696. PW123 Vasudevan, Senior Civil Police Officer, has given evidence that
on 21.05.2012, at 09.00 hours, he had seen Sandeep (PW42) producing the car

KL-

58/G 3238 before the Circle Inspector (PW163). PW123 has also stated that the Circle
Inspector seized the aforesaid vehicle as per Ext.P37 mahazar and that he (PW123)
signed the mahazar as a witness.
697. PW42 Sandeep is the cousin brother of Shanoj (A33). He has deposed
that he is the owner of the car KL-58/G 3238. He has also stated that as per the
direction of the police he produced the car at the office of the Dy.S.P, Vatakara and that
the police seized the car as per Ext.P37 mahazar. PW42 identified his signature in
Ext.P37 mahazar. However, PW42 has deposed that he had not given the car to Shanoj
(A33), Rajeesh (A4), Anoop (A1) or Shinoj (A7) for any purpose.
698. The evidence of PW42, PW123 and PW163 proves that Sandeep
(PW42) had produced the car KL-58/G 3238 before the police and it was seized by the
police as per Ext.P37 mahazar. However, seizure of the car KL-58/G 3238 does not
prove anything against the accused Shanoj (A33). There is no charge against Shanoj
(A33) that he had used the aforesaid car for harbouring any of the assassins of
T.P. Chandrasekharan.
699. There is evidence to find that there was close contact between Shanoj

309

(A33) and T.K. Rajeesh (A4) over cellphone shortly before and after the murder of
T.P. Chandrasekharan. It is also proved that on the night of 04.05.2012 Shanoj (A33)
had taken a room on rent in the hotel Lyndas Residency in Koothuparamba and that
another person had shared the room with him on that night. The fact that Shanoj (A33)
had guided the police to the place where the motor cycle KL-58/G 1768 was kept is also
a circumstance against him which raises strong suspicion against him. There is no
direct evidence against him. Direct evidence against him of his alleged association with
Rajeesh (A4) in the hotel could or should have come from PW38 but he has turned
hostile to the prosecution. Then there is only circumstanial evidence that remains
against him. The circumstances proved against him are not sufficient to come to a
definite conclusion that he had given shelter to T.K. Rajeesh (A4) on the night of
04.05.2012 by arranging accommodation in the hotel.
700. Suspicion, however grave it may be, cannot take the place of proof, and
there is a large difference between something that 'may be' proved and 'will be proved'.
In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to
take place of proof. The court must maintain the vital distance between conjectures and
sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny
based upon a complete and comprehensive appreciation of all features of the case, as
well as the quality and credibility of the evidence brought on record. The court must
ensure, that miscarriage of justice is avoided and if the facts and circumstances of a
case so demand, then the benefit of doubt must be given to the accused, keeping in
mind that a reasonable doubt is not an imaginary, trival or a merely probable doubt, but
a fair doubt that is based upon reason and common sense. (See Raj Kumar Singh Vs.
State of Rajasthan : A.I.R 2013 SC 3150).

310

701. The principles mentioned above are squarely applicable to the case
against Shanoj (A33). There are circumstances which raise strong suspicion that he had
harboured T.K.Rajeesh (A4) .But, the circumstances established by the prosecution do
not unerringly lead only to the conclusion that he has committed the offence alleged
against him. He is entitled to get the benefit of doubt.
Accused Jijesh Kumar (A36)
702. The charge against the accused Jijesh Kumar (A36) is that on or after
the night of 04.05.2012, at the property on the northern side of his house at the place
Panniyannur in Chokli, he burnt the blood-stained clothes which had been worn by Sijith
(A6) at the time of committing the murder of T.P. Chandrasekharan and thereby caused
evidence of the commission of the offence of murder to disappear with the intention of
screening the offenders from legal punishment and thus he committed an offence
punishable under section 201 of the Indian Penal Code.
703. The evidence of Dy.S.P Jossy Cherian (PW165) and Ext.P420 arrest
memo prepared by him would show that the accused Jijesh Kumar (A36) was arrested
by him at 17.00 hours on 13.06.2012.

PW165 has deposed that he recorded the

statement of Jijesh Kumar (A36). PW165 has stated that Jijesh Kumar (A36) made a
statement to him that if he was taken, he would show the place. PW165 has also stated
that on the basis of the aforesaid information, as guided by Jijesh Kumar (A36), he
reached the northern side of house no.10/194 of Panniyannur Panchayath.

Jijesh

Kumar (A36) pointed out to him a place near the house. PW165 has stated that he
inspected the aforesaid place and he saw there remnants of burnt materials.

He

collected from there two buttons and a piece of cloth and some ash and packed them
and sealed them and seized them as per Ext.P49 mahazar.

311

704. PW134 Rajeev, Senior Civil Police Officer, has deposed that on
14.06.2012, he had accompanied the Dy.S.P (PW165) during the investigation. He has
stated that on that day, at 15.00 hours, Jijesh Kumar (A36) pointed out a place at the
northern side of a house in Panniyannur. He saw the Dy.S.P (PW165) inspecting the
aforesaid place and collecting from there two buttons and a burnt piece of cloth and ash
and soil. The Dy.S.P (PW165) seized them as per Ext.P49 mahazar. He (PW134)
signed the mahazar as a witness. PW134 identified in the court the two buttons and
piece of cloth and the packet containing ash and soil collected by the Dy.S.P as per
Ext.P49 mahazar.
705. PW63 Sumesh is an attestor to Ext.P49 mahazar. He did not support
the prosecution. He denied acquaintance with Jijesh Kumar (A36). But he has admitted
his signature in Ext.P49 mahazar. He would say that he did not see Jijesh Kumar (A36)
pointing out the property on the northern side of his house and the police collecting from
there buttons and ash. On cross examination by the defence, PW63 would say that it
was in a blank paper that he signed.
706. PW63 has admitted his signature in Ext.P49 mahazar. He has not
given any evidence that he had made any complaint to any person that the police had
obtained his signature in blank paper. He is a neighbour of Jijesh Kumar (A36). In
these circumstances, it is clear that he has duly affixed his signature in Ext.P49 mahazar
and that he has denied having seen the seizure of the materials as per that mahazar
only with a view to help Jijesh Kumar (A36).
707. There is no sufficient reason to disbelieve the evidence of PW165 that
Jijesh Kumar (A36) made a statement to him that he would show the place. There is
also no sufficient reason to disbelieve the evidence of PW134 and PW165 that Jijesh

312

Kumar (A36) pointed out a place on the northern side of his house and from that place
PW165 collected two buttons and a burnt piece of cloth and ash as per Ext.P49
mahazar.
708. Seizure of two buttons and remnants of burnt materials from the place
pointed out to the police by Jijesh Kumar (A36) would prove that he had burnt some
clothes at that place. The two buttons collected from the place were of a shirt. It would
indicate that it was a shirt which was burnt by him there. However, there is nothing to
show that it was the shirt which was worn by the accused Sijith (A6) that was burnt by
Jijesh Kumar (A36) there. There is also no material to prove how Jijesh Kumar (A36)
had got possession of the shirt allegedly worn by Sijith (A6) at the time of committing the
murder of T.P. Chandrasekharan. In these circumstances, there is no reliable evidence
to find that Jijesh Kumar (A36) had burnt the shirt which was worn by Sijith (A6) at the
time of committing the murder of T.P. Chandrasekharan and thus he caused evidence of
commission of the offence of murder to disappear.
Accused Shaju (A37)
709. The charge against the accused Shaju (A37) is three-fold. The first
charge against him is that on or after the night of 04.05.2012, at the compound of the
house of Pokkan Surendran S/o Govindan at the place Marankandi in Chokli, he 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
thereby he caused evidence of commission of the offence of murder to disappear with
the intention of screening the offenders from legal punishment and thus committed an
offence punishable under section 201 of the Indian Penal Code. The second charge
against him is that on or after the night of 04.05.2012, with the knowledge that the first

313

accused Anoop

was

one

of

the

persons

who

committed

the

murder

of

T.P. Chandrasekharan, he assisted the first accused Anoop to conceal/abscond with the
intention of screening the first accused from legal punishment and thereby he committed
an offence punishable under section 212 of the Indian Penal Code. The third charge
against him is that on or after the night of 04.05.2012 with the knowledge that the
accused Shobi @ Thomas (A35) 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, he assisted Shobi @ Thomas (A35) to abscond/conceal
and thereby he committed an offence punishable under section 212 of the Indian Penal
Code.
710. The evidence of Circle Inspector V.V. Benny (PW163) and Ext.P360
arrest memo prepared by him prove that he arrested Shaju (A37) at 09.50 hours on
11.06.2012. PW163 has deposed that Shaju (A37) made a statement to him that he
would show the place and on the basis of the aforesaid information given by Shaju
(A37), as guided by Shaju (A37), he reached behind the house of Pokkan Surendran
S/o Govindan at the place Marankadi in Chokli and Shaju (A37) pointed out to him the
ash at that place. PW163 has deposed that Scientific Assistant Ajeesh Thekkadavan
(PW148) inspected and took the ash in a plastic bottle and gave it to him and he seized
it. He also seized some ash which remained at the place. He packed both items and
sealed them and seized them as per Ext.P48 mahazar. PW163 identified in the court
the plastic bottle containing the ash which was collected by Scientific Assistant Ajeesh
Thekkadavan and the packet containing the ash collected by himself (MO96 and MO97).
711.

PW60 Lijesh is an attestor to Ext.P48 mahazar. He admitted his

signature in that mahazar.

But he did not support the prosecution case regarding

314

seizure of ash as per the mahazar. He denied any acquaintance with Shaju (A37). He
would say that he did not see Shaju (A37) with the police on 11.06.2012. He would say
that he did not see Shaju (A37) pointing out ash at the place behind the house of
Pokkan Surendran. He also denied having seen seizure of ash by the police from that
place. He would say that it was in a blank paper that he signed. But he admitted that he
had not made any complaint to anybody that police had obtained his signature in blank
paper.
712. PW61 is another attestor to Ext.P48 mahazar.

He also denied

acquaintance with Shaju (A37). He also did not support the prosecution case regarding
seizure of ash by the police as per Ext.P48 mahazar. But he admitted his signature in
that mahazar. He would say that he did not see the Scientific Assistant collecting ash
and giving it to the police in a plastic bottle.
713. The fact that the witnesses who attested Ext.P48 mahazar have turned
hostile to the prosecution is not a sufficient ground to discard the evidence of PW163.
There is no sufficient ground to disbelieve the evidence of PW163 that Shaju (A37)
guided him to the place behind the house of Pokkan Surendran and pointed out to him
the ash there. His evidence regarding the conduct of the accused is admissible under
section 8 of the Evidence Act. There is also no sufficient reason to disbelieve the
evidence of PW163 that Scientific Assistant Ajeesh Thekkadavan (PW148) collected ash
in a plastic bottle and gave it to him and that he seized it as per Ext.P48 mahazar.
Scientific Assistant Ajeesh Thekkadavan (PW148) has given evidence that on
11.06.2012 he inspected the place behind a house which was under construction in
Chokli and that he collected burnt remnants from there and packed and sealed them
and entrusted them to the investigating officer as per Ext.P203 list and he also made

315

Ext.P204 report to that effect. The evidence of PW148 corroborates the testimony of
PW163 regarding the collection and seizure of ash from the place behind the house of
Pokkan Surendran. There is also no sufficient ground to disbelieve the evidence of
PW163 that it was Shaju (A37) who guided him to the place where the ash was lying
and that Shaju (A37) pointed out to him the ash.
714. The fact that ash was found and collected from the place behind the
house of another person as pointed out by the accused Shaju (A37) suggests that it was
Shaju (A37) who had burnt something at that place. However, this fact, by itself, is not
sufficient to prove that he had burnt blood-stained floor mat removed from the Innova car
KL-58/D 8144. The ash collected and seized as per Ext.P48 mahazar had been sent to
the Forensic Science Laboratory, Thiruvananthapuram for chemical examination.
Ext.P575 is the chemical examination report. The ash collected and seized as per
Ext.P48 mahazar and sent for chemical examination is shown as item no.59 in Ext.P575
report. It is stated in Ext.P575 chemical examination report that presence of rubber
could not be detected in the burnt and charred remnants (item no.59). If the ash and
burnt remnants found at the place pointed out by Shaju (A37) to the police and collected
and seized as per Ext.P48 mahazar were of floor mat of a car, it would have contained
rubber. Therefore, it cannot be found that Shaju (A37) had burnt any floor mat of a car at
the aforesaid place.
715. PW58 Khader is an attestor to Ext.P47 observation mahazar prepared
by Circle Inspector V.V. Benny PW163). PW47 observation mahazar is in respect of the
courtyard of house no. 4/292 of Chokli Panchayath and its premises.

The house

allegedly belongs to the mother of Shaju (A37). The prosecution case is that Shaju
(A37) pointed out the place mentioned in that mahazar to PW163 as the place where he

316

had kept the floor mat removed from the Innova car KL-58/D 8144. PW58 admitted his
signature in Ext.P47 mahazar. But he would say that he did not see police coming to
the house of Shaju (A37) on 11.06.2012 with Shaju (A37).
716. PW59 Suresh Babu is another attestor to Ext.P47 mahazar. He also
admitted his signature in that document. He is none other than the brother-in-law of
Shaju (A37). He would say that he signed only in a blank paper. He would also say that
he has not made any complaint to any person that police had obtained his signature in
blank paper. He has stated that he did not see the police coming to the house of Shaju
(A37) on 11.06.2012 with Shaju (A37).
717. It is evident that PW59 has not supported the prosecution case as he is
the brother-in-law of Shaju (A37). He has admitted his signature in Ext.P47 mahazar.
He has admitted that he has not made any complaint to any person that police had
obtained his signature in blank paper. PW58 is the neighbour of Shaju (A37). In these
circumstances, in the light of the decision in Gajraj Vs. State : 2012 Cri.L.J 413 (SC)
referred to above, there need not be any hesitation to find that PW58 and PW59 had
duly affixed their signatures in Ext.P47 mahazar.
718. However, there is no evidence given by Circle Inspector V.V. Benny
(PW163) that Shaju (A37) had pointed out to him the courtyard of his house and that he
(PW163) had prepared Ext.P47 observation mahazar of that place. PW163 has not
given any evidence at all regarding the preparation of Ext.P47 observation mahazar.
Therefore, merely on the basis of the evidence of PW58 and PW59, who have turned
hostile to the prosecution, no inference is possible against Shaju (A37) that he had
pointed out the place mentioned in that mahazar to the police. Even otherwise, the fact
that Shaju (A37) had pointed out the courtyard of his house to the police, by itself, does

317

not mean anything and it does not prove anything against him.
719. Thus there is no reliable evidence to prove the charge against Shaju
(A37) that he burnt the blood-stained floor mat removed from the Innova car
KL-58/D 8144 which was used by the assassins of T.P. Chandrasekharan.
720.

There is not even a scintilla of evidence to find that Shaju (A37) had

in any manner assisted the accused Anoop (A1) or Shobi @ Thomas (A35) to abscond
or conceal.
Accused Abhinesh (A39)
721. The charge against accused Abhinesh (A39) is that on 05.05.2012, at
about 9.15 a.m, he took the accused Sijith (A6) to the Thalassery Area Committee Office
of the C.P.I(M) in the autorickshaw KL-58/F 9494 and harboured/concealed him with the
knowledge that he was one of the persons who committed the murder of
T.P. Chandrasekharan and that Abhinesh (A39) committed such act with the intention of
screening Sijith (A6) from legal punishment and thereby he committed an offence
punishable under section 212 of the Indian Penal Code.
722. The evidence of Dy.S.P K.V. Santhosh (PW166) and Ext.P468 arrest
memo prepared by him prove that the accused Abhinesh (A39) was arrested by him at
16.30 hours on 25.05.2012.
723.

Dy.S.P Jossy Cherian (PW165) has given evidence that he had

obtained the accused Abhinesh (A39) in police custody and that he recorded the
statement of Abhinesh (A39). PW165 has also stated that Abhinesh (A39) made a
statement to him that if he was taken, he would point out the office.

PW165 has

deposed that pursuant to the aforesaid information, he proceeded with Abhinesh (A39)
and that Abhinesh (A39) pointed out to him building no.12/135 of Thalassery Municipality

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in which the office of the Thalassery Area Committee of the C.P.I(M) was functioning.
PW165 has also stated that he prepared Ext.P177 observation mahazar of the aforesaid
building at 07.00 hours on 07.06.2012.
724. PW134 Rajeev, Senior Civil Police Officer, has given evidence that on
07.06.2012 he had accompanied Dy.S.P Jossy Cherian (PW165) during the
investigation.

He has deposed that on that day at 07.00 hours PW165 prepared

Ext.P177 observation mahazar of the building pointed out by Abhinesh (A39) in which
the office of the Thalassery C.P.I(M) Area Committee was conducted.
725. There is no sufficient reason to disbelieve the evidence of PW165 that
Abhinesh (A39) pointed out to him the building in which Thalassery Area Committee
Office of the C.PI(M) was conducted. Evidence regarding the conduct of the accused
Abhinesh (A39) pointing out to the investigating officer the aforesaid building is
admissible under section 8 of the Evidence Act. However, the fact that he pointed out
the Thalassery Area Committee Office of the C.P.I(M) to the investigating officer, by
itself, is not sufficient to find that he had taken accused Sijith (A6) to that office. On the
basis of this circumstance alone the charge against him cannot be established.
726. PW71 Smithesh is an autorickshaw driver. He is the driver of the
autorickshaw KL-58/F 9494. He was examined by the prosecution to prove that he had
driven his autorickshaw with Sijith (A6) as a passenger to the Thalassery Area
Committee Office of the C.P.I (M) and at that time, Abhinesh (A39) had guided them on a
motor cycle and after some time, Abhinesh (A39) also travelled in the autorickshaw
alongwith Sijith (A6) and they went to the office of the C.P.I(M). However, PW71 did not
support the prosecution. He denied any acquaintance with Sijith (A6) and Abhinesh
(A39).

He denied taking Sijith (A6) and Abhinesh (A39) in his autorickshaw to the

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Thalassery Area Committee Office of the C.P.I (M).


727.

It is true that the statement of Smithesh (PW71) under section 164

Cr.P.C had been recorded by the Judicial First Class Magistrate, Payyoli. Ext.P55 is the
statement given by PW71 before the Magistrate under section 164 Cr.P.C. PW71 has
admitted before this court that he had given Ext.P55 statement before the Magistrate. In
Ext.P55 statement given by PW71 before the Magistrate he had stated that at the
instance of Abhinesh (the name of Abhinesh is written as Abhilash in Ext.P55 statement)
he had taken Sijith(A6) in his autorickshaw to the Thalassery Area Committee Office of
the C.P.I(M). But PW71 has deposed that such a statement was made by him before
the Magistrate as he was threatened by the police that he would be implicated as an
accused in the case.
728.

As noticed earlier, the statement of witness under section 164

Cr.P.C is not substantive evidence. Such a statement can be used only for corroboration
of the testimony of that witness as provided in section 157 of the Evidence Act or for
contradicting the evidence in the manner provided in section 145 of the Evidence Act.
When there is no evidence given by the witness before the trial court implicating an
accused, no question of corroboration of the testimony of such a witness with the aid of
the statement given by him under section 164 Crl.P.C arises. No conviction can be
based on the statement of a witness given under section 164 Cr.P.C (See Narayanan
Vs. State of Kerala : I.L.R 2009 (4) Kerala 759).
729. Therefore, on the basis of Ext.P55 statement given by PW71 before the
Magistrate under section 164 Cr.P.C, it cannot be found that Abhinesh (A39) had taken
Sijith (A6) to the Thalassery Area Committee Office of the C.P.I (M).

320

730. There is no other witness examined by the prosecution to prove that


Abhinesh (A39) had taken Sijith(A6) to the Thalassery Area Committee Office of the
C.P.I(M) and harboured/concealed Sijith (A6).
731. Thus the prosecution has not been able to prove beyond reasonable
doubt that the accused Abhinesh (A39) had harboured Sijith (A6) and thereby committed
an offence punishable under section 212 of the Indian Penal Code.
Accused Saneesh (A41)
732. The charge against the accused Saneesh (A41) is that on or after the
night of 04.05.2012, he took accused 1 to 3, 5 and 7 from the place Kunduchira in
Thalassery to the Koothuparamba 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 harboured the
aforesaid persons with the knowledge that they were persons who had committed
murder of T.P. Chandrasekharan and that Saneesh (A41) committed such act with the
intention of screening the aforesaid persons from legal punishment and thereby he has
committed an offence punishable under section 212 of the Indian Penal Code.
733. The evidence of Dy.S.P Jossy Cherian (PW165) and Ext.P401 arrest
memo prove that the accused Saneesh (A41) was arrested by PW165 at 17.15 hours on
16.05.2012.
734.

PW165 has stated that he had obtained Saneesh (A41) in police

custody. PW165 has deposed that Saneesh (A41) gave him a statement that if he was
taken, he would point out the house in which he had seen Shafi and others. PW165 has
given evidence that pursuant to the aforesaid information given by Saneesh (A41), as
led by Saneesh (A41), on 19.05.2012 he proceeded with Saneesh (A41) and that
Saneesh (A41) pointed out to him house no.7/879 of Mayyazhi Municipality. PW165 has

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also deposed that on 19.05.2012 at 11.20 hours, he prepared Ext.P30 observation


mahazar of the aforesaid house and its premises.
735. PW36 Sajith is an attestor to Ext.P30 observation mahazar. He did not
fully support the prosecution. He admitted his signature in Ext.P30 mahazar. But he has
stated that he did not see Saneesh (A41) with the police when he signed Ext.P30
mahazar. He also denied that he saw Saneesh (A41) pointing out the house to the
police.

On cross examination by the defence PW36 would say that he signed the

mahazar without reading its contents. He would also say that the contents of the
mahazar were not read over to him.
736. PW165 has stated that Saneesh (A41) made a statement to him that if
he was taken, he would show the place where they had taken rest during the day.
PW165 has stated that pursuant to the aforesaid information given by Saneesh (A41),
as led by Saneesh (A41), on 19.05.2012 he proceeded with Saneesh (A41) and that
Saneesh (A41) pointed out the place at a distance of 500 metres from Kunduchira Dam.
PW165 has also deposed that on 19.05.2012 at 12 noon he prepared Ext.P172
observation mahazar of the aforesaid place.
737. PW130 Saju S.Das was the Sub Inspector of Meppayoor Police Station.
He is an attestor to Ext.P172 mahazar.

He had accompanied PW165 during the

investigation on 19.05.2012. He has given evidence that on 19.05.2012 at 12 noon


Saneesh (A41) pointed out a place near Kunduchira Dam to the Dy.S.P (PW165) and
that the Dy.S.P prepared Ext.P172 observation mahazar of that place and that he
(PW130) signed it.
738. PW165 has also given evidence that Saneesh (A41) made a statement
to him that if he was taken, he would show the place where he had taken them. PW165

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has deposed that pursuant to the aforesaid information he proceeded with Saneesh
(A41) and that Saneesh (A41) pointed out to him the road in front of the Koothuparamba
Area Committee Office of the C.P.I(M). PW165 has further stated that he prepared
Ext.P32 observation mahazar of the aforesaid place (it was mistakenly recorded in the
deposition of PW165 that he prepared Ext.P30 mahazar of that place).
739. PW37 Chandran is an attestor to Ext.P32 observation mahazar. He is a
person conducting a lottery ticket shop near Koothuparamba Area Committee Office of
the C.P.I(M). He did not support the prosecution. He denied that he saw Saneesh (A41)
pointing out any place to the police. But PW37 has admitted his signature in Ext.P32
mahazar.
740. PW165 has given evidence that Saneesh (A41) made a statement to
him that he had kept the motor cycle at his house and if he was taken, he would show
the bike. PW165 has deposed that pursuant to the aforesaid information, he proceeded
with Saneesh (A41) and reached house no.10/300 of Kathiroor Panchayath and
Saneesh (A41) pointed out to him the motor cycle KL-58/C 1283 which was kept at the
western side of the southern courtyard of the aforesaid house. PW165 has also stated
that he seized the aforesaid motor cycle as per Ext.P35 mahazar at 14.30 hours on
19.05.2012.
741. PW130 Sub Inspector Saju S.Das is an attestor to Ext.P35 mahazar
also. He has stated that on 19.05.2012 at 14.30 hours, the Dy.S.P (PW165) seized the
motor cycle KL-58/C 1283 which was kept in the house of Saneesh (A41) which was
pointed out by Saneesh (A41).
742. PW40 Mukundan is also an attestor to Ext.P35 mahazar. He did not
support the prosecution. But he admitted his signature in Ext.P35 mahazar. He has

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deposed that he signed the mahazar at his house. But he would say that he did not see
Saneesh (A41) with the police. He also denied that he saw Saneesh (A41) pointing out
the motor cycle kept at the courtyard of the house to the police.
743.

PW165 has deposed that as directed by him Prathyush (PW39)

produced before him the autorickshaw KL-58/E 653 at 14.00 hours on 19.05.2012 and
that he inspected the autorickshaw and prepared Ext.P43 body mahazar of that vehicle.
744. PW39 Prathyush is an autorickshaw driver.
autorickshaw KL-58/E 653.

He is the driver of the

He did not support the prosecution.

He denied the

suggestion made to him by the learned Public Prosecutor in the cross examination that
as per the direction of Saneesh (A41) he had taken five persons to Koothuparamba Area
Committee Office of the C.P.I(M). PW39 denied any acquaintance with Saneesh (A41).
745. There is no sufficient ground to disbelieve the evidence of PW165
regarding the conduct of Saneesh (A41) pointing out to him certain places and the motor
cycle KL-58/C 1283. The evidence of Dy.S.P Jossy Cherian (PW165) proves that the
accused Saneesh (A41) guided him to the house where he had seen Shafi (A5) and that
he (PW165) prepared Ext.P30 observation mahazar of the house pointed out to him by
Saneesh (A41). The evidence of PW165 also proves that Saneesh (A41) had guided
him to a place where some persons had taken rest and that he (PW165) prepared
Ext.P172 observation mahazar of the place pointed out to him by Saneesh (A41). The
evidence of PW165 further proves that Saneesh (A41) had guided him to the place
where he had taken some persons and that he (PW165) prepared Ext.P32 observation
mahazar of the aforesaid place pointed out to him by Saneesh (A41). The evidence of
PW165 also proves that Saneesh (A41) had made a statement to him that he had kept
the motor cycle at his house and as guided by Saneesh (A41) he reached the house of

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Saneesh (A41) and that he seized the motor cycle KL-58/C 1283 which was kept there
and pointed out to him by Saneesh (A41).
746. It is true that PW36, PW37 and PW40 did not support the prosecution.
These witnesses have denied seeing Saneesh (A41) with the police. They have also
denied that they saw Saneesh (A41) pointing out any house or place or vehicle to the
investigating officer. But these witnesses have admitted their signature in Exts. P30,
P32 and P35 mahazars. They have not given any evidence that they had signed only in
blank papers. In such circumstances, it can be inferred that they have turned hostile to
the prosecution at the instance of the accused to help the accused. The fact that these
witnesses did not fully support the prosecution case is not a sufficient ground to discard
the evidence of PW165 that Saneesh (A41) pointed out to him the places mentioned in
the aforesaid mahazars and also the motor cycle KL-58/C 1283.
747. It is true that the statements made by Saneesh (A41) to PW165 as
spoken to by PW165 are not admissible under section 27 of the Evidence Act. However,
the fact that the accused Saneesh guided PW165 to certain places and pointed out to
him those places is relevant under section 8 of the Evidence Act as conduct of the
accused.
748. In A.N. Venkatesh Vs. State of Karnataka : A.I.R 2005 SC 3809, it has
been held as follows:
By virtue of Section 8 of the Evidence Act, the conduct of the accused
person is relevant, if such conduct influences or is influenced by any fact in issue or
relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed
out to the police officer, the place where the dead body of the kidnapped boy was found
and on their pointing out the body was exhumed, would be admissible as conduct under

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Section 8 irrespective of the fact whether the statement made by the accused
contemporaneously with or antecedent to such conduct falls within the purview of
Section 27 or not as held by this Court in Prakash Chand Vs. State (AIR 1979 SC 400).
Even if we hold that the disclosure statement made by the accused appellants (Ex.P14
and P15) is not admissible under Section 27 of the Evidence Act, still it is relevant under
Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW4 the spot
mahazar witness that the accused had taken them to the spot and pointed out the place
where the dead body was buried, is an admissible piece of evidence under section 8 as
the conduct of the accused.
749. Here, the conduct of the accused Saneesh (A41) leading the
investigating officer and pointing out to him certain places and also the motor cycle
which was kept in his house is admissible under section 8 of the Evidence Act.
750. Ext.P30 observation mahazar prepared by PW165 is with regard to
house no. 7/879 of Mayyazhi Municipality and its premises pointed out to him by
Saneesh (A41). Even if it is accepted that it is the place where Saneesh (A41) had seen
Shafi (A5) and some others, it does not in any way help the prosecution to prove the
specific charge against Saneesh (A41) that he had harboured accused 1 to 3, 5 and 7.
There is nothing to find that Saneesh (A41) had provided shelter to the aforesaid
accused in that house. The mere fact that he had seen the accused Muhammed Shafi
(A5) and some others in that house does not prove anything.
751. Ext.P172 observation mahazar prepared by PW165 is with regard to the
place near Kunduchira Dam pointed out to him by Saneesh (A41). Even if it is accepted
that Saneesh (A41) had seen some of the other accused taking rest at the aforesaid
place, it does not mean that he had taken those persons from that place in any vehicle

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or that he had given any assistance to them at the aforesaid place.


752. Ext.P32 observation mahazar prepared by PW165 is with regard to the
place pointed out to him by Saneesh (A41) as the place where Saneesh (A41) had
taken certain persons. PW165 has not given any evidence that Saneesh (A41) had
given any statement to him regarding the persons who were taken by him to that place.
Even if it is accepted that the place mentioned in Ext.P32 observation mahazar is the
place where accused 1 to 3, 5 and 7 had reached, the fact that Saneesh (A41) pointed
out that place to the investigating officer is not sufficient to prove the charge levelled
against him.
753. PW39 Prathyush is the person alleged to have taken accused 1 to 3, 5
and 7 in an autorickshaw to the office of the C.P.I(M) at Koothuparamba. But PW39 did
not support the prosecution. He denied that he had taken any person in his
autorickshaw to the office of the C.P.I(M) at the instance of Saneesh (A41). PW39 has
denied any acquaintance with Saneesh (A41).
754. In this connection it is also to be noted that as per the charge framed by
the court against Saneesh (A41), it was in the autorickshaw KL-18/F 8500 that accused
1 to 3, 5 and 7 travelled from the place Kunduchira to the office of the C.P.I(M) in
Koothuparamba.

The police charge is also to the effect that Saneesh (A41) took

accused 1 to 3, 5, 7 and 25 from Kunduchira in the autorickshaw KL-18/F 8500. There


is no charge against Saneesh (A41) that at his instance the autorickshaw KL-58/E 653
was used for the journey of accused 1 to 3, 5 and 7 to the office of the C.P.I(M) or he
had arranged the autorickshaw KL-58/E 653 for the journey of the aforesaid persons.
755. PW165 had seized the motor cycle KL-58/C 1283 from the house of
Saneesh (A41) which was pointed out to him by Saneesh (A41).

The conduct of

327

Saneesh (A41) in leading the investigating officer to his house and pointing out the
motor cycle KL-58/C 1283 which was kept there is admissible under section 8 of the
Evidence Act. However, seizure or recovery of the aforesaid motor cycle on the basis of
the statement made by Saneesh (A41) to the investigating officer that he had kept the
motor cycle in his house and that he would show the motor cycle is not admissible under
section 27 of the Evidence Act. No fact was discovered from the aforesaid statement of
Saneesh (A41) made to PW165. The conduct of Saneesh (A41) leading the
investigating officer to his house and pointing out the motor cycle KL-58/C 1283, by
itself, does not prove that he had used the aforesaid motor cycle to harbour accused 1
to 3, 5 and 7. There is no substantive evidence in the form of the testimony of any
witness to prove that Saneesh (A41) had used the motor cycle KL-58/C 1283 in any
manner to harbour the aforesaid accused. Conduct of an accused pointing out to the
investigating officer an article or vehicle involved in the commission of an offence is
relevant and admissible under section 8 of the Evidence Act, but a conviction cannot, in
the absence of any other evidence regarding his culpability be based on that conduct
alone. (See Ramachandran Vs. State of Kerala : 2008 (4) K.L.T 464 Paragraph 10).
756. In the aforesaid circumstances, in the absence of any substantive
evidence against the accused Saneesh (A41) in the form of the testimony of any
witness, merely on the basis of his conduct in pointing out to the investigating officer
certain places and the motor cycle KL-58/C 1283, it cannot be found that he had
harboured accused 1 to 3, 5 and 7 in any manner.
Accused Babu (A42) and Dhananjayan (A70)
757. The charge against accused Babu (A42) and Dhananjayan (A70) is that
on 05.05.2012, at about 20.00 hours, they provided shelter to accused 1 to 3 and 5 in

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the Koothuparamba Area Committee Office of the C.P.I (M) with the knowledge that the
aforesaid persons had committed murder of T.P. Chandrasekharan and that accused 42
and 70 committed such act with the intention of screening accused 1 to 3 and 5 from
legal punishment and thereby accused 42 and 70 committed an offence punishable
under section 212 read with 34 of the Indian Penal Code.
758. The prosecution mainly relies upon the evidence of PW47 Nithyanandan
to prove the charge against the accused Babu (A42) and Dhananjayan (A70).
759. Nithyanandan (PW47) is a person who claims to have seen the accused
42 and 70 taking accused 1 to 3 and 5 into the Koothuparamba Area Committee Office
of the C.P.I (M). PW47 has given evidence as follows: On 05.05.2012, at about 20.30
hours, he had gone to the Koothuparamba Police Station in his car KL-58/B 245. While
he was going to the police station, he saw an autorickshaw and two motor cycles in front
of the Koothuparamba Area Committee Office of the C.P.I(M). He saw Kodi Suni (A3), a
person known to him previously, and five others going to the Area Committee Office. He
also saw Area Secretary Dhananjayan (A70) and Office Secretary Babu (A42) coming
out of the Area Committee Office and taking the aforesaid six persons to the office. He
saw them in the electric light in the office and also in the light of his car and the street
light. Dhananjayan (A70) and Babu (A42) were persons known to him previously.
760. PW47 identified the accused 1 to 3 and 5 and also 42 and 70 in the
court. He has identified these accused in the court specifically stating their names. He
has identified accused 1, 2 and 5 as the persons seen by him in the company of Kodi
Suni (A3).
761. PW47 has stated on cross examination that it was at about 20.00
20.10 hours that he left his house to the police station. He would say that he reached in

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front of the Koothuparamba Area Committee Office of the C.P.I(M) at about 20.30 hours.
He has specifically stated that it was not at 20.30 hours that he left his house. He
would also say that he saw Kodi Suni (A3) and five others together entering into the
Area Committee Office and at that time he was in his car. He would say that he saw the
back of the aforesaid persons. He would then say that he had seen their side portion.
PW47 would also say that he had noticed the physical features and the facial expression
of the aforesaid persons.

He has stated that on seeing the aforesaid persons he

became frightened and therefore he did not go to the police station but he returned to
his house.
762. The plea of the accused Babu (A42) and Dhananjayan (A70) is that they
have been falsely implicated in the case and that the evidence of PW47 against them is
motivated by political enmity. It is also the plea of these accused that on 05.05.2012,
between 20.30 and 21.00 hours, there was no supply of electricity in the area in which
the Koothuparamba C.P.I(M) Office is situated and therefore it is evident that PW47 has
given false evidence.
763. DW2 was examined by the accused to prove the plea regarding nonsupply of electricity between 20.30 and 21.00 hours on 05.05.2012 in the area in which
Koothuparamba Office of the C.P.I.(M) is situated. DW2 is the Assistant Engineer of
Koothuparamba 66 KV Sub Station of the K.S.E.B. Ext.D32 is the attested copy of
pages 38 to 41 of the Operator's Diary kept in her office which shows the details of the
load shedding on 05.05.2012. The evidence of DW2 alongwith the entries in Ext.D32
would show that on 05.05.2012, between 20.30 and 21.00 hours, there was load
shedding at the places which come under Koothuparamba Feeder. The evidence of
DW2 would also show that the Koothuparamba Area Committee Office of the C.P.I(M) is

330

situated at a place which comes under the Koothuparamba Feeder.


764. The evidence of DW2 and the contents of Ext.D32 document would be
relevant only if there is evidence given by PW47 that it was at a time between 20.30 and
21.00 hours that he saw accused 1 to 3, 5, 42 and 70 in front of the Koothuparamba
Area Committee Office of the C.P.I(M). However, a close scrutiny of the testimony of
PW47 would show that he has not given any evidence to the effect that it was between
20.30 and 21.00 hours that he reached in front of the Koothuparamba Area Committee
Office of the C.P.I(M) or that he saw the accused there. His statement in examination-inchief is only that at about 20.30 hours he had gone to the Koothuparamba Police
Station in his car KL-58/B 245. On cross examination he has stated that it was at about
20.00 20.10 hours that he left his house to the police station. It has come out in his
evidence that the distance between his house and the Area Committee Office of the
C.P.I(M) is about four and a half kilometers. He has stated that at about 8.30 p.m he
reached in front of the Area Committee Office. He has specifically stated that it was not
at 20.30 hours that he left his house. He had stated to the police that at about 20.30
hours he had gone to the Koothuparamba Police Station in his car. It does not mean
that it was at 20.30 hours that he left his house to go to the police station. It also does
not mean that it was at or after 20.30 hours that he reached the road in front of the
Koothuparamba Area Committee Office of the C.P.I(M) or the police station. As noticed
earlier, he has stated on cross examination that it was at about 20.30 hours that he
reached in front of the Koothuparamba Area Committee Office of the C.P.I(M). It can be
before 20.30 hours or after 20.30 hours. The evidence of PW47 means that it was
around 20.30 hours or approximately at 20.30 hours that he reached the road in front of
the Koothuparamba Area Committee Office of the C.P.I(M).

The defence has not

331

succeeded in bringing out an admission from PW47 that it was after 20.30 hours that he
reached there.

Therefore, the fact proved by the evidence of DW2 and Ext.D32

document that there was no supply of electricity at that place between 20.30 and 21.00
hours on 05.05.2012 can have no significance.
765. Is the evidence of PW47 that he saw the accused Babu (A42) and
Dhananjayan (A70) giving shelter to accused 1 to 3 and 5 in the Koothuparamba Area
Committee Office of the C.P.I(M) reliable and trustworthy ? Is his evidence worthy of
credence ?
766. There is no dispute with regard to the fact that at the relevant time (on
05.05.2012) the accused Babu (A42) was the Office Secretary of the Koothuparamba
Area Committee Office of the C.P.I(M) and that the accused Dhananjayan (A70) was the
Secretary of the Koothuparamba Area Committee of the C.P.I(M).
767. It has come out in the evidence of PW47 that he was earlier an activist
of C.P.I(M). He would deny the suggestion that he was expelled from that party. But, on
a whole reading of the evidence of PW47 it can be seen that he had ceased to be an
activist of C.P.I(M). He has admitted that since the year 2010 there have been clashes
between him and his followers on one side and the local leaders of C.P.I(M) on the other
side. There was a case registered as crime no. 497/2011 of Kathiroor Police Station in
which the allegation was that attempt was made to murder him. Ranjith, the son of
Govindan, who is a local committee member of the C.P.I(M) was an accused in that
case. PW47 has admitted that he is the first accused in the case registered as crime no.
224/2011 of Koothuparamba Police Station in which the allegation is that he had
attacked Govindan and his wife and two children with deadly weapons and made
attempt to murder them. It can be inferred from these circumstances that PW47 is a

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person who has got political animosity towards the local leaders of C.P.I(M). Of course,
it is not a sufficient ground to discard his evidence. But, it is a circumstance that would
compel the court to scrutinize his evidence with more care and caution. The court has to
keep it in mind that there is a chance that his testimony can be tainted or motivated.
Ultimately, his testimony is to be evaluated by its intrinsic worth.
768. The evidence of PW47 is that it was on his way to the police station in
his car and when he reached the road in front of the Koothuparamba Area Committee
Office of the C.P.I(M) that he saw the accused Babu (A42) and Dhananjayan (A70)
receiving and taking accused 1 to 3 and 5 into that office. PW47 has not disclosed the
reason for going to the police station at that time. He has stated on cross examination
that on the morning of that day, the Circle Inspector had directed him to come to the
police station. It eludes comprehension why the Circle Inspector would want him to
attend the police station on that hartal day. At any rate, PW47 has not disclosed what
was the reason or purpose of his presence in the police station on that day.
769. According to PW47, the accused Kodi Suni (A3) was a person previously
known to him. If he had seen the third accused and five others entering into the office of
the C.P.I(M) on the very next day of the murder of T.P. Chandrasekharan, it is not
explained by him why he did not immediately inform the police about it. His evidence is
that it was on his way to the police station that he saw the third accused and five other
persons entering into the aforesaid office. But, after seeing them, he did not go to the
police station but returned to his house. He would say that it was on account of fear that
he returned to his house without going to the police station. At the same time, his
evidence shows that nobody had threatened him on that day. It was on 18.07.2012 that
he gave statement to the police.

It is to be noted that as early as on 14.06.2012

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accused 2, 3 and 5 in the case had been arrested by the police. PW47 has admitted
that he had seen the photos of the accused in the newspapers and television channels.
Even then, it was more than a month after the arrest of accused 2, 3 and 5 that he gave
statement to the police that he saw Kodi Suni and five others in the C.P.I(M) office. This
delay, which remains unexplained, affects the credibility of his evidence.
770. Now, it may be assumed that PW47 had seen six persons entering into
the office of the C.P.I(M) and the accused Babu (A42) and Dhananjayan (A70) receiving
them. PW47 was travelling in his car. He was driving the car. He reached the road in
front of the Area Committee Office of the C.P.I(M) at about 20.30 hours. According to
him, there was street light there. There was also light in the aforesaid office. PW47 has
stated on cross examination that it was from a distance of 30-35 metres that he saw the
persons in the office of the C.P.I(M). A specific suggestion was made to PW47 in the
cross examination that it was the back of the persons who entered into the office of the
C.P.I(M) that he had seen.

He answered that suggestion in the affirmative but

immediately he added that he saw the side of the persons. Therefore, even according to
PW47, he had only seen the side of the six persons who were entering into the office of
the C.P.I(M) and at that time he was sitting in his car and he saw the aforesaid persons
from a distance of about 30-35 metres in the street light and in the light in the office.
Admittedly, he was seeing five of them for the first time in his life. No test identification
parade for this witness was conducted. He had no occasion to identify them at the
police station. Admittedly, he had not stated to the police the physical features of the
persons he had seen entering into the office of the C.P.I(M). In these circumstances,
identification of the accused 1 to 3 and 5 by PW47 for the first time in the court as the
persons whom he had seen entering into the office of the C.P.I(M) cannot be accepted

334

as reliable and trustworthy.


771. In this connection, it may also be noted that PW47 wrongly identified
two other accused in the court. Moreover, he has identified accused 1,3 and 5 by their
names. It is not known how he came to know the names of the first and the second and
the fifth accused.

He would say that he knew their names by himself. A specific

suggestion was made to PW47 that he was seeing the fifth accused for the first time in
his life in the court. PW47 did not deny this suggestion but he kept silence. In the reexamination no attempt was made by the prosecution to explain the silence of PW47 in
this regard.

All these circumstances add to discredit his evidence regarding

identification of accused 1 to 3 and 5 in the court as the persons who had seen entering
into the office of the C.P.I(M).
772. In State Vs. Shankar @ Raju :1988 Cri.L.J 780, it has been observed as
follows:
In the same manner Public Witness 54, Vinod Kumar Mehta states that he
saw the accused from his car grappling with a woman from 8 to 10 yards while he was
driving his car. Obviously, he saw the incident from the back of the accused. He says
that he chased the accused but again it was from the back side of the accused and in
the evening. According to him he was stunned and did not notice the registration
number of the scooter. The only description of the accused he gave is that one was
short stature and the other was a thin bow. This is no description but are only his
impressions. It can hardly be said that he could identify the accused after four long
years on the basis of this description under the circumstances of this case.

The

evidence in respect of identification of these two eye-witness can hardly be said to


conclusively establish the identity of the culprits as the persons connected with the

335

commission of this crime.


773. In the present case also, PW47 was driving his car. He had seen only
the back or side portion of the persons entering into the office of the C.P.I(M), that too,
from a distance of 30-35 metres in electric light.
774. In the present case, except the third accused, the five persons alleged to
have been seen by PW47 entering into the office of the C.P.I(M) were total strangers to
him. He had the opportunity to see only their back or side from a distance of 30-35
metres in electric light while he was driving a car. He had not stated to the police their
physical features. There was no occasion or opportunity to get their identity imprinted in
his mind. He had no occasion to see their faces.
775. The various aspects regarding the evidence of PW47 identifying
accused 1,2, and 5 in the court can be recapitulated as follows: (1) The five persons
alleged to have seen by PW47 in the office of the C.P.I(M) in the company of Kodi Suni
(A3) were total strangers to him. (2) He did not know their names. (3) He had not
identified them before the police or in the test identification parade. (4) He had not told
their names to the police. (5) He had not told the police their physical features. (6) It
was while driving a car that PW47 had allegedly seen the five persons in the office of the
C.P.I(M) in the company of Kodi Suni (A3). (7) He had allegedly seen them in electric
light from a distance of 30-35 metres. (8) He had only seen the back or side portion of
the persons who were entering into the office of the C.P.I(M). (9) He wrongly identified
in the court the accused Ajesh (A15) as the person Pradeepan (A31) and the accused
Shibu (A16) as the person Shinoj (A7). (10) Inspite of the fact that PW47 had no
knowledge of the names of the five persons allegedly seen by him in the office of the
C.P.I(M) in the company of Kodi Suni (A3) he identified accused 1, 2 and 5 for the first

336

time in the court with reference to their names. In these circumstances, no value or
weight can be attached to the evidence of PW47 identifying accused 1, 2 and 5 in the
court as three out of the five persons seen by him in the company of Kodi Suni (A3).
776.

Identification of the accused Sunil Kumar alias Kodi Suni (A3) in the

court by PW47 also lacks credibility. PW47 claims that he had seen Kodi Suni (A3) in
the office of the C.P.I(M) on the night of the next day of the murder of
T.P.Chandrasekharan. As noticed earlier, Kodi Suni (A3) was arrested by the police on
14.06.2012. PW47 has admitted that he had seen the photos of the accused in the
newspapers and television channels. Yet, he did not immediately go to the police station
to give information that he had seen Kodi Suni (A3) in the office of the C.P.I(M) on the
next day of the murder of T.P. Chandrasekharan. He had given statement to the police
only on 18.07.2012.

The delay in giving the statement to the police has not been

explained. Moreover, as noticed earlier, PW47 had no occasion to see the face of the
persons allegedly seen by him entering into the office of the C.P.I(M). He had only seen
the back or side portion of them from a distance of 30 35 metres in electric light while
he was driving the car. In these circumstances, his evidence that Kodi Suni (A3) was
one of the aforesaid persons cannot be accepted as reliable and trustworthy.
777. Dy.S.P Shoukathali (PW164) has given evidence that on 19.06.2012,
the accused Manoj Kumar @ Kirmani Manoj (A2) pointed out to him the hall in the first
floor of the Koothuparamba Area Committee Office of the C.P.I(M) and that he prepared
Ext.P140 observation mahazar in respect of that place. PW118 Babu Ganesh, Senior
Civil Police Officer has given evidence that he saw the accused Manoj (A2) pointing out
to PW164 the hall in the first floor of the Koothuparamba Area Committee Office of the
C.P.I(M). PW118 is an attester to Ext.P140 observation mahazar.

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778. The conduct of the second accused pointing out the hall in the first floor
of the Area Committee Office of the C.P.I(M) does not, by itself, prove anything against
the accused Babu (A42) and Dhananjayan (A70). In the absence of any other reliable
evidence to connect the accused Babu (A42) and Dhananjayan (A70) with the offence
alleged against them, the fact that the second accused pointed out the aforesaid place
to the investigating officer becomes relevant and reliable only against the second
accused and not against any other accused.
779. PW39 Prathyush is an autorickshaw driver. He is the driver of the
autorickshaw KL-58/E 653. PW39 was examined by the prosecution to prove that it was
in his autorickshaw that accused 1 to 3, 5 and 7 reached the Koothuparambu Area
Committee Office of the C.P.I(M) on the night of 05.05.2012. But PW39 did not support
the prosecution.

He was treated as hostile to the prosecution.

He denied the

suggestion made to him in the cross examination by the learned Special Public
Prosecutor that on 05.05.2012 he had taken five persons to the Office of the C.P.I(M) in
his autorickshaw. But it is significant that no suggestion was made by the learned
Special Public Prosecutor to PW39 in the cross examination that accused 1 to 3 and 5
were the persons who had travelled in his autorickshaw to the Koothuparamba Area
Committee Office of the C.P.I(M). PW39 denied the suggestion that he saw Babu (A42)
and Dhananjayan (A70) receiving and taking the passengers of the autorickshaw to the
office of the C.P.I(M). PW39 did not identify Babu (A42) and Dhananjayan (A70) in the
court. He denied any acquaintance with them.
780. The evidence of PW165 Dy.S.P Jossy Cherian shows that as directed
by the police PW39 had produced the autorickshaw KL-58/E 653 before him and that he
prepared Ext.P34 body mahazar of that autorickshaw. Production of the autorickshaw

338

by PW39 before the police and preparation of Ext.P34 body mahazar of that vehicle by
PW165 do not prove anything against the accused Babu (A42) and Dhananjayan (A70).
781. Ext.P278 is the call data record in respect of the mobile phone
connection number 9846246611 (SIM).

Ext.P275 is the application made by the

accused Babu (A42) to Vodafone Company for obtaining the mobile phone connection.
Ext.P275 shows that Babu (A42) is the subscriber of the mobile phone connection
number 9846246611.

When examined under section 313 Cr.P.C, Babu (A42) has

admitted that he is the subscriber of the aforesaid mobile phone connection. Ext.P304 is
the call data record of the mobile phone connection (SIM) number 9447642688 in the
name of the accused Kunhanandan (A13) and Ext.P278 is the call data record of the
mobile phone connection (SIM) number 9846246611. Exts. P278 and P304 documents
reveal that on 05.05.2012 at 06.55.55 hours a call was made from the mobile phone
number 9447642688 to the mobile phone number 9846246611 having a duration of 127
seconds.

When examined under section 313 Cr.P.C, the accused Babu (A42) has

admitted that Kunhanandan (A13) had made a call to his mobile phone at 06.55.55
hours on 05.05.2012. The accused Babu (A42) has explained that he had invited
Kunhanandan (A13) to the marriage of his brother and that Kunhanandan had called
him on 05.05.2012 at 06.55.55 hours to inform him that he had inconvenience to attend
the marriage. No evidence has been adduced by Babu (A42) to prove that there was
marriage of his brother and that he had invited Kunhanandan (A13) for that marriage.
When examined under section 313 Cr.P.C or in the statement filed by him,
Kunhanandan (A13) has not disclosed the reason or purpose of calling Babu (A42) over
the mobile phone at 06.55.55 hours on 05.05.2012, that is, on the morning of the next
day of the murder of T.P. Chandrasekharan. Even then, it is not sufficient to infer that it

339

was for the purpose of providing shelter to the assassins of T.P. Chandrasekharan that
Kunhanandan (A13) had called Babu (A42) over the mobile phone at that time. It is also
to be noted that the prosecution has not raised any allegation that it was at the instance
of Kunhanandan (A13) that Babu (A42) provided shelter to accused 1 to 3 and 5 in the
Koothuparambu Area Committee Office of the C.P.I(M).
782. The discussion above would show that the prosecution has failed to
prove beyond reasonable doubt that the accused Babu (A42) and Dhananjayan
(A70) provided shelter to accused 1 to 3 and 5 in the Koothuparamba Area
Committee Office of the C.P.I(M) on the night of 05.05.2012 with the knowledge that
they were persons who had murdered T.P. Chandrasekharan.
Accused Sreejith (A48), Sudheesh (A49) and Jigesh (A50)
783. The charge against the accused Sreejith (A48), Sudheesh (A49) and
Jigesh (A50) is that after the murder of T.P. Chandrasekharan, they provided food and
shelter and means of conveyance to accused 2, 3 and 5 at the hilly area in Peringanam
in Mudakkozhi and assisted them to abscond/conceal and harboured them and thereby
committed an offence punishable under section 212 read with 34 of the Indian Penal
Code.
784. Dy.S.P Shoukathali (PW164) has given evidence regarding the arrest of
accused 2, 3 and 5 and also accused 48 to 50. He has deposed that on 14.06.2012, at
about 01.30 hours, alongwith police party, he reached near the Muzhakunnu Service Cooperative Bank. They brought Jigesh (A50) from that bank who was the night watchman
there. Alongwith Jigesh (A50), the police party reached the place Mudakkozhi in a tipper
lorry. As led by Jigesh (A50), at about 03.30 hours, the police party walked and reached

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near a tent in Mudakkozhi Peringanam hill. The police party surrounded the tent.
Thereafter, PW164 entered into the tent with police party. There were five persons inside
the tent. They tried to escape. The police party apprehended them by using force.
PW164 has deposed that the five persons who were inside the tent told their names as
Sunil Kumar, Muhammed Shafi, Manoj, Sreejith and Sudheesh. PW164 found out a
country made revolver from the waist of Sreejith and a stiletto from the waist of
Sudheesh. PW164 arrested the five persons and Jigesh (A50).
785. Ext.P186 is the arrest memo and Ext.P376 is the inspection memo
prepared by PW164 for the arrest of Sunil Kumar @ Kodi Suni (A3). Ext.P187 is the
arrest memo and Ext.P377 is the inspection memo prepared by PW164 at the time of
arresting Muhammed Shafi (A5). Ext.P185 is the arrest memo and Ext.P378 is the
inspection memo prepared by PW164 for the arrest of Manoj Kumar @ Kirmani Manoj
(A2). Ext.P188 is the arrest memo and Ext.P379 is the inspection memo prepared by
PW164 for the arrest of Sreejith (A48). Ext.P189 is the arrest memo and Ext.P380 is the
inspection memo prepared for the arrest of Sudheesh (A49) and Ext.P190 is the arrest
memo and Ext.P381 is the inspection memo prepared at the time of the arrest of Jigesh
(A50). PW164 identified in the court the accused Sunil Kumar (A3), Manoj Kumar (A2),
Muhammed Shafi (A5), Sreejith (A48), Sudheesh (A49) and Jigesh (A50).
786. The evidence of PW164 regarding the arrest of the aforesaid accused
from a tent in the hilly area in Mudakkozhi is corroborated by the testimony of Senior
C.P.O Sunil Kumar (PW138) who had accompanied PW164.
787. There is no sufficient ground to disbelieve the evidence of PW138 and
PW164 regarding the arrest of A2, A3 and A5 and also A48 and A49 from a tent in the

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hilly area in Mudakkozhi. Of course, these accused have raised a plea that they were
not actually arrested from that place. The arrest memos prepared by PW164 at the time
of their arrest bear their signature. PW164 has given evidence regarding the signature of
the accused contained in the arrest memos. The aforesaid accused have no case that
they had put their signature in the arrest memos at some other place and time on
compulsion by the police. No such suggestion has been made to PW164 in the cross
examination. Moreover, PW164 has stated in the re-examination that Muhammed Shafi
(A5) had made a complaint to the State Human Rights Commission that he was tortured
by the police after arresting him on 14.06.2012 at the place Mudakkozhi. After the reexamination of PW164, further cross examination of PW164 was made by counsel for
A1 to A3 only and then no challenge was made to the statement of PW164 that
Muhammed Shafi (A5) had made such a complaint. Therefore, the evidence of PW164
in that regard can be accepted as reliable. It means that even Muhammed Shafi (A5)
had no dispute with regard to the fact that he was arrested by the police on 14.06.2012
from Mudakkozhi.
788. The evidence of PW138 and PW164 proves that Sunil Kumar (A3),
Manoj Kumar (A2) and Muhammed Shafi (A5) were arrested by the police from a tent in
the hilly area of Mudakkozhi and that Sreejith (A48) and Sudheesh (A49) who were
found in the tent at that time were also arrested by the police.
789. The evidence of PW164 shows that he seized the country made revolver
found in the possession of Sreejith (A48) and the stiletto found in the possession of
Sudheesh (A49) as per Ext.P184 mahazar. However, this court does not express any

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opinion on the evidence of PW164 in that regard as a separate case has been
registered against Sreejith (A48) and Sudheesh (A49) under the Arms Act.
790. The question now arises whether the fact that Sreejith (A48) and
Sudheesh (A49) were found in a tent in a lonely hill area during wee hours in the
company of Sunil Kumar (A3), Manoj Kumar (A2) and Muhammed Shafi (A5) is sufficient
to make an inference that Sreejith (A48) and Sudheesh (A49) had harboured the other
accused. Section 212 of the Indian Penal Code provides that whenever an offence has
been committed, whoever harboures or conceals a person whom he knows or has
reason to believe to be the offender with the intention of screening him from legal
punishment shall be liable for punishment. As per section 52A of the Indian Penal Code,
the word 'harbour' includes the supplying a person with shelter, food, drink, money,
clothes, arms, ammunition or means of conveyance, or the assisting of a person by any
means, to evade apprehension.
791. The following essential ingredients must be established for convicting a
person under section 212 I.P.C -- (i) the offence must have been committed, i.e.,
completed and there must be an 'offender'; (ii) there must be harbouring or concealment
of a person by the accused; (iii) the accused knows or has reason to believe that such
harboured or concealed person is the offender; (iv) there must be an intention on the
part of the accused to screen the offender from legal punishment. The first ingredient of
an offence under section 212 I.P.C to be proved is commission of an offence. Upon
proving the same, prosecution should also prove that there must be harbouring or
concealing of the person known or has reason to believe to be the offender. It is a
positive act. A mere help given to a person for absconding without any knowledge that

343

he has committed a crime is not enough. The person accused of section 212 I.P.C must
harbour or conceal the person by providing him shelter or otherwise. He must have
given shelter to him with knowledge that he is an offender or has reason to believe to be
an offender. Section 26 of the Indian Penal Code states that a person is said to have
'reason to believe' a thing, if he has sufficient cause to believe that thing but not
otherwise. The person accused of harbouring an offender must have knowledge or must
have reason to believe that the person harboured or concealed has committed an
offence. It is further to be proved that there was intention on the part of the accused to
screen that offender from legal punishment. The criminality lies in the act of concealment
committed with the knowledge or belief that the person who is harboured or concealed is
the offender and also with the criminal intention of screening him from legal punishment.
(See Sujith Vs. State of Kerala : 2007 (4) K.L.T 987).
792. In the instant case, the presence of Sreejith (A48) and Sudheesh (A49)
in the company of A2, A3 and A5 was highly suspicious. It must also be found that
Sreejith (A48) and Sudheesh (A49) had knowledge of the fact that A2, A3 and A5 were
offenders whom the police was looking for in connection with the murder of
T.P. Chandrasekharan. The fact that A2, A3 and A5 were staying in a tent in a lonely hilly
area should have put Sreejith (A48) and Sudheesh (A49) on inquiry as to why they were
staying there and concealing there. However, there is no evidence to find that Sreejith
(A48) or Sudheesh (A49) had provided any food, drink, money, clothes, arms,
ammunition or means of conveyance to A2, A3 and A5 or assisted them in any manner
to evade apprehension. There is also no evidence to find that Sreejith (A48) and
Sudheesh (A49) were the persons who put up the tent in the remote and lonely area and

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provided shelter to A2, A3 and A5. In these circumstances, it cannot be found that they
harboured or concealed A2, A3 and A5.
793. Regarding the charge against the accused Jigesh (A50) under section
212 I.P.C, the evidence of PW164 shows that Jigesh (A50) had guided the police party
to the place where A2, A3 and A5 were hiding. It means that Jigesh (A50) had
knowledge of the place of concealment of the aforesaid accused. However, mere
knowledge of the whereabouts of an offender does not amount to harbouring him. (See
Jagdish Chandra Maity Vs. Emperor : A.I.R 1935 Calcutta 550). In the instant case,
Jigesh (A50) did not even misguide the police party. There is no evidence to find that
Jigesh (A50) had committed any act of harbouring A2, A3 and A5 as defined under
section 52A of the Indian Penal Code.
794. Therefore, it has to be concluded that the prosecution has not proved
that Sreejith (A48), Sudheesh (A49) and Jigesh (A50) committed an offence punishable
under section 212 of the Indian Penal Code.
Some Aspects Regarding the Investigation in the Case
795. Before concluding the discussion, it would be proper to make a
reference to the nature of the investigation conducted in the case. The records would
indicate that the investigation in the case was by and large fair. Of course, the defence
has vehemently criticised the investigation in the case dubbing it as biased, unfair,
partisan and politically motivated. It is true that in respect of some of the accused, the
investigating officers failed to present before the court legally admissible evidence. Many
witnesses of the prosecution turned hostile also. These facts contributed to the
discharge of two accused under section 227 Cr.P.C and acquittal of 20 accused under

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section 232 Cr.P.C. It appears that in their anxiety to file final report within 90 days of the
date of arrest of the accused, the investigating officers did not pay proper attention to
present before the court legally admissible evidence against many of the accused.
796. It is a stark reality that in cases which have political overtones, fear
psychosis prevailing in the region would hamper smooth investigation. Faction-oriented
nature and behaviour of witnesses also cause problems for the investigating officers.
The fact that the murder took place due to political rivalry cannot be ground for anyone,
much less, the investigation agency to display any slackness or lethargic attitude in the
process of investigation. Whether it is due to political rivalry or personal vengeance or
for that matter for any other motive a murder takes place, it is the responsibility of the
police to come up to the expectation of the public at large and display that no stone will
reamin unturned to book the culprits and bring them for trial for being dealt with under
the provisions of the criminal law of prosecution. (Bharati Tamang Vs. Union of India :
2014 Cri.L.J 156).
797. Of course, in the present case, laches/lapses on the part of the
investigating officers have been pointed out by the defence. For example, the undue
delay in producing vital documents before the committal court. Dy.S.P Santhosh
(PW166) has explained before the court that such delay had occurred on account of the
magnitude of the case involving large number of accused and witnesses. The defence
would allege manipulation of documents by the investigating officers, for example, the
case of Ext.P61 observation mahazar and the delay in producing that document in the
committal court. Inspite of such irregularities or illegalities in the investigation, there is
also indication of fairness in investigation. For example, inspite of the recovery of MO1

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series swords on the basis of the information given by the accused Pradeepan (A31) he
was not implicated in the case as an assailant but indicted only for causing
disappearance of evidence of the offence of murder.
798. At this juncture, as conclusion, it is only proper to quote the observations
made by the Hon'ble Supreme Court in State of West Bengal Vs. Mir Mohammad Omar
: 2000 SCC (Cri) 1516, which read as follows:
In our perception it is almost impossible to come across a single case wherein
the investigation was conducted completely flawless or absolutely foolproof. The
function of the criminal courts should not be wasted in picking out the lapses in
investigation and by expressing unsavoury criticism against investigating officers. If
offenders are acquitted only on account of flaws or defects in investigation, the cause of
criminal justice becomes the victim. Effort should be made by courts to see that criminal
justice is salvaged despite such defects in investigation. Courts should bear in mind the
time constraints of the police officers in the present system, ill-equipped machinery they
have to cope with, and the traditional apathy of respectable persons to come forward for
giving evidence in criminal cases which are realities the police force have to confront
with while conducting investigation in almost every case.
Offences Proved / Not Proved
799. The discussion on the previous points leads to the following conclusions:
(1) Accused 1 to 7 were members of an unlawful assembly the common
object of which was to commit murder of T.P.Chandrasekharan. Accused 3 to 7 were
armed with swords which were deadly weapons. The second accused was carrying with
him explosive substance. Accused 3 to 7 hacked T.P.Chandrasekharan with swords and

347

committed murder of him. The act of accused 3 to 7 amounts to an offence punishable


under section 302 I.P.C.

The act of the accused 1 and 2 amounts to an offence

punishable under section 302 read with 149 I.P.C. Accused 1 to 7 are also guilty of the
offence punishable under section 143 I.P.C. Accused No.1 is also guilty of the offence
punishable under section 147 I.P.C and accused 2 to 7 are guilty of the offence
punishable under section 148 I.P.C.
(2) The second accused is guilty of the offence punishable under section 5 of the
Explosive Substances Act, 1908 and the third accused is guilty of the offence punishable
under section 3 of the Explosive Substances Act, 1908.
(3) Accused 8, 11 and 13 are guilty of the offence punishable under section
120B I.P.C. Since accused 1 to 5 and 7 are the persons who committed murder it is not
necessary to convict them for the offence punishable under section 120B I.P.C. Accused
10,12 and 14 are not guilty of the offence punishable under section 120B I.P.C.
(4) The first accused is not guilty of the offences punishable under sections 465
and 471 I.P.C.
(5) Accused 3, 8, 36 and 37 are not guilty of the offence punishable under
section 201 I.P.C.
(6) Accused 8 and 10 to 14, 20, 21 and 29

are not guilty of the offence

punishable under section 302 read with 109 I.P.C.


(7) Accused 16, 17, 22, 25, 28 and 30 are not guilty of the offence punishable
under section 302 read with 115 I.P.C.

348

(8) Accused No.18 is guilty of the offence punishable under section 302 read
with 109 I.P.C . He is not guilty of the offences punishable under sections 465 and 471
I.P.C.
(9) Accused No.19 is not guilty of the offences punishable under section 302
read with 109 I.P.C and section 465 I.P.C.
(10) Accused No.31 is guilty of the offence punishable under section 201 I.P.C.
He is not guilty of the offence punishable under section 212 I.P.C.
(11) Accused 33, 37, 39, 41, 42, 48 to 50 and 70 are not guilty of the offence
punishable under section 212 I.P.C.
(12)

Accused 16 to 22 and 27 to 30 are not guilty of the offence

punishable under section 118 I.P.C.


Order of Acquittal / Conviction
800. In the result,
(1) The accused K.K.Krishnan (A10), Geothi Babu (A12) and P. Mohanan
(A14) are found not guilty of the offences punishable under section 120B I.P.C and under
section 302 read with 109 I.P.C and they are acquitted under section 235 Crl.P.C.
(2) The accused Shibu (A16), Sreejith (A17), Sanoop (A22), Rameesh (A28)
and Raveendran (A30) are found not guilty of the offences punishable under section
302 read with 115 I.P.C and under section 118 I.P.C and they are acquitted under
section 235 Crl.P.C.
(3) The accused Aswanth (A19) is found not guilty of the offences punishable
under sections 465 and 118 I.P.C and under section 302 read with 109 I.P.C and he is

349

acquitted under section 235 Crl.P.C.


(4) The accused Dilshad (A20), Muhammed Fasalu (A21) and Dipin (A29) are
found not guilty of the offences punishable under sections 302 read with 109 I.P.C and
118 I.P.C and they are acquitted under section 235 Crl.P.C.
(5) The accused Rajikanth (A25) is found not guilty of the offence punishable
under section 302 read with 109 I.P.C and he is acquitted under section 235 Crl.P.C.
(6) The accused Rajith (A27) is found not guilty of the offences punishable
under section 302 read with 109 and 115 I.P.C and under section 118 I.P.C and he is
acquitted under section 235 Crl.P.C.
(7) The accused Shaju(A37) is found not guilty of the offences punishable under
sections 201 and 212 I.P.C and he is acquitted under section 235 Crl.P.C.
(8) The accused Jijesh Kumar (A36)

is found not guilty of the offence

punishable under section 201 I.P.C and he is acquitted under section 235 Crl.P.C.
(9) The accused Shanoj @ Kelan (A33), Abhinesh (A39), Saneesh (A41),
Babu (A42), Sreejith (A48), Sudheesh (A49), Jigesh(A50) and Dhananjayan (A70) are
found not guilty of the offence punishable under section 212

I.P.C and they are

acquitted under section 235 Crl.P.C.


(10) The accused Anoop (A1) is found guilty of the offences punishable under
sections 143, 147 and 302 read with 149 I.P.C and he is convicted thereunder. He is
found not guilty of the offences punishable under sections 120B, 148, 465 and 471 I.P.C
and he is acquitted under section 235 Crl.P.C in respect of that offences.

350

(11) The accused Manoj Kumar @ Kirmani Manoj (A2) is found guilty of the
offences punishable under sections 143, 147,148 and 302 read with 149 I.P.C and
under section 5 of the Explosive Substances Act, 1908 and he is convicted thereunder.
He is found not guilty of the offence punishable under section 120B I.P.C and he is
acquitted under section 235 Crl.P.C in respect of that offence.
(12) The accused Sunil Kumar @ Kodi Suni (A3) is found guilty of the offences
punishable under sections 143, 147,148 and 302 I.P.C and under section 3 of the
Explosive Substances Act, 1908 and he is convicted thereunder. He is found not guilty of
the offences punishable under sections 120B and 201 I.P.C and he is acquitted under
section 235 Crl.P.C in respect of that offences.
(13) The accused T.K.Rajeesh (A4) , Muhammed Shafi (A5) , Sijith (A6) and
Shinoj (A7) are found guilty of the offences punishable under sections 143, 147, 148 and
302 I.P.C and they are convicted thereunder. They are found not guilty of the offence
punishable under section 120B I.P.C and they are acquitted under section 235 Crl.P.C in
respect of that offence.
(14)

The

accused

K.C.Ramachandran

(A8),

Manojan

(A11)

and

Kunhanandan (A13) are found guilty of the offence punishable under section 120B read
with 302 I.P.C and they are convicted thereunder. They are found not guilty of the
offence punishable under section 302 read with 109 I.P.C and they are acquitted under
section 235 Crl.P.C in respect of that offence. The accused K.C.Ramachandran (A8) is
found not guilty of the offence punishable under section
acquitted under section 235 Crl.P.C in respect of that offence.

201 I.P.C and and he is

351

(15) The accused Rafeek (A18) is found guilty of the offence punishable under
section 302 read with 109 I.P.C and he is convicted thereunder. He is found not guilty of
the offences punishable under sections 465, 471 and 118 I.P.C and he is acquitted
under section 235 Crl.P.C in respect of that offences.
(16) The accused Pradeepan (A31) is found guilty of the offence punishable
under section 201 I.P.C and he is convicted thereunder. He is found not guilty of the
offence punishable under section 212 I.P.C and he is acquitted under section 235
Crl.P.C in respect of that offence.
(17) The accused P.Mohanan (A14) and Rajith (A27) are in judicial custody in
this case. They shall be released forthwith,

if their detention is not required in

connection with any other case.


(18) The accused who are convicted shall be heard on the question of sentence
to be imposed on them.
(Dictated to the Confidential Assistant, transcribed by her, corrected by me and
pronounced in open Court on this the 22nd day of January, 2014).
Sd/-

Special Additional Sessions Judge


(Marad Cases), Kozhikode.

Sentence Submissions by the Accused


801. The convicted accused were examined by the court to ascertain the
details to be considered in deciding the sentence to be imposed on them. The facts
revealed in their examination need mention here.

352

802. The accused Anoop (A1) is now aged 32 years. He is a bus driver by
profession. He has submitted that he has got wife and two children and also aged
parents.
803. The accused Manoj Kumar (A2) would say that he is now aged 41 years.
However, as per the final report filed by the police, he is aged only 30 years. He is
unmarried. He would say that he has got aged parents. He is a head load worker.
804. The accused Sunil Kumar (A3) is aged 30 years. He is unmarried. He is
also a head load worker. He would say that he has got aged mother.
805. The accused T.K. Rajeesh (A4) is now aged 35 years. He is unmarried.
He would say that there is only his aged mother in his house and that he is a coolie
worker.
806. The accused Muhammed Shafi (A5) is now aged 28 years. He is also
unmarried. He would say that he has got aged parents. He is a head load worker.
807. The accused Sijith (A6) is now aged 26 years. He is also unmarried. He
would say that he has got only his aged mother. He is said to have worked in a shop
before involving in this case.
808. The accused Shinoj (A7) is now aged 29 years. He is also unmarried.
He would say that he has got only his aged mother. He is a coolie worker.
809. The accused K.C. Ramachandran (A8) is now aged 54 years. He has
got wife and children and his mother in his family.

353

810. The accused Manojan (A11) would say that he has got his wife and
children and father in his house. He is now aged 48 years. He is a salesman in a toddy
shop.
811. The accused Kunhanandan (A13) is now aged 68 years. He would say
that he is suffering from many diseases. He has also stated that there is only his wife in
his house.
812. The accused Rafeek (A18) is now aged 31 years. He is a driver by
profession. He would say that he has got wife and his mother.
813. The accused Pradeepan (A31) is now aged 35 years. He is a coolie
worker.
Sentence Submissions by the Counsel
814.

Learned

Special

Public

Prosecutors

Sri.

C.K.Sreedharan

and

Sri. P.Kumarankutty would canvass for capital punishment for accused 1 to 8, 11 and 13.
They have submitted that the crime committed by accused 1 to 7 is brutal, diabolical and
revolting. They would contend that it was a pre-planned, cold-blooded and dastardly
murder. Learned Special Public Prosecutors would also contend that accused 1 to 7 are
professional assassins and hard - core criminals and they are a threat to the society and
they are beyond the pale of reformation. The attention of the court is invited to the
manner in which the murder was committed and also the motive of the murder to
substantiate the plea that imposing death penalty is imperative in this case. It is
submitted that a sentence other than death will send a wrong signal to the society.
815. On the other hand, Learned Senior Counsel Sri. K. Gopalakrishna Kurup
and also learned counsel Sri. M. Asokan and Sri. P.V. Hari would point out that the court

354

has to record special reasons for awarding death penalty and that there are no
exceptional circumstances in this case to award capital punishment to any of the
convicted persons. They have also pointed out that the prosecution has not produced
any materials in support of the contention that accused 1 to 7 are hard - core criminals
or that they have got criminal antecedents. It is submitted that this case does not satisfy
the R-R test.
Sentence Discussion and Resolution
816. This is a case which created a sensation in the State. At the outset, the
court has to make it clear that the sensational nature of the case does not make any
impact on the mind of the court in the sentencing process. It is the obligation of every
court to act according to law. Heat generated outside the court room either through the
news media or through flutter in the public mind shall not be allowed to affect the cause
of justice. Award of punishment following conviction at a trial in a system wedded to rule
of law is the outcome of cool deliberation in the court room. It cannot be gainsaid that
the court must proceed to discharge its duties uninfluenced by any extraneous
consideration (State Vs Laxman Kumar : A.I.R 1986 SC 250). While imposing sentence,
the court shall not be swayed away with any kind of sensation and individual
predilections (Oma alias Omprakash Vs State of T. N : A.I.R 2013 SC 825).
817. Section 354 (3) of the Code of Criminal Procedure provides that when
conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence of death, the special
reasons for such sentence.

355

818. In Bachan Singh Vs. State of Punjab : A.I.R 1980 SC 898, the
Constitution Bench of the Apex Court, while determining the constitutional validity of
death penalty, also examined the sentencing procedure embodied in sub-section (3) of
Section 354 Cr.P.C. and held as follows:
While considering the question of sentence to be imposed for the offence of
murder under Section 302 of the Penal Code, the court must have regard to every
relevant circumstance relating to the crime as well as the criminal. If the court finds, but
not otherwise, that the offence is of an exceptionally depraved and heinous character
and constitutes, on account of its design and the manner of its execution, a source of
grave danger to the society at large, the court may impose the death sentence.
In the said case, the formula of rarest of rare cases for imposing death sentence in a
murder case was evolved by the Hon'ble Supreme Court and illustrations were given
regarding the aggravating circumstances and the mitigating circumstances to be taken
note of by the court while imposing a sentence of death.
819. In Machhi Singh Vs. State of Punjab : A.I.R 1983 SC 957 : (1983) 3 SCC
470, the Apex Court Court culled out the principles stated in Bachan Singh's case and
held as follows:
The following propositions emerge from Bachan Singh's case :
(i) The extreme penalty of death need not be inflicted except in gravest
cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender'
also require to be taken into consideration along with the circumstances of the 'crime'.

356

(iii) Life imprisonment is the rule and death sentence is an exception. In


other words death sentence must be imposed only when life imprisonment appears to
be an altogether inadequate punishment having regard to the relevant circumstances of
the crime, and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant circumstances;
(iv) A balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
In order to apply these guidelines inter alia the following questions may be asked and
answered:
(a) Is there something uncommon about the crime which renders sentence
of imprisonment for life inadequate and calls for a death sentence ?
(b) Are the circumstances of the crime such that there is no alternative but
to impose death sentence even after according maximum weightage to the mitigating
circumstances which speak in favour of the offender ?
If upon taking an overall global view of all the circumstances in the light of the aforesaid
proposition and taking into account the answers to the questions posed hereinabove,
the circumstances of the case are such that death sentence is warranted, the Court
would proceed to do so.
820. In Haresh Mohandas Rajput Vs. State of Maharashtra : A.I.R 2011 SC
3681 it has been held as follows :

357

The rarest of the rare case comes when a convict would be a menace
and threat to the harmonious and peaceful co-existence of the society. The crime may
be heinous or brutal but may not be in the category of the rarest of the rare case.
There must be no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of violence as would constitute
a continuing threat to the society. The accused may be a menace to the society and
would continue to be so, threatening its peaceful and harmonious co-existence. The
manner in which the crime is committed must be such that it may result in intense and
extreme indignation of the community and shock the collective conscience of the society.
Where an accused does not act on any spur-of-the moment provocation and indulges
himself in a deliberately planned crime and meticulously executes it, the death sentence
may be the most appropriate punishment for such a ghastly crime. The death sentence
may be warranted where the victims are innocent children and helpless women. Thus, in
case the crime is committed in a most cruel and inhuman manner which is an extremely
brutal, grotesque, diabolical, revolving and dastardly manner, where his act affects the
entire moral fibre of the society eg. crime committed for power or political ambition or
indulging in organised criminal activities, death sentence should be awarded.
821. In Sangeet Vs State of Haryana: A.I.R 2013 SC 447, it was observed
that not only does the aggravating and mitigating circumstances approach need a fresh
look but the necessity of adopting this approach also needs a fresh look in light of the
conclusions in Bachan Singh's case and that even though Bachan Singh intended
principled sentencing, sentencing has now really become judge- centric. It was further
observed that primacy still seems to be given to the nature of the crime and the
circumstances of the criminal, referred to in Bachan Singh appear to have taken a bit of

358

a back seat in the sentencing process. It was also found that the standardization and
categorization of crimes in Machhi Singh has not received further importance from the
Apex Court, although it is referred to from time to time. It was held that aggravating
circumstances relate to the crime while mitigating circumstances relate to the criminal
and a balance sheet cannot be drawn up for comparing the two. The considerations for
both are distinct and unrelated. The use of the mantra of aggravating and mitigating
circumstances needs a review. It was further held that in the sentencing process, both
the crime and the criminal are equally important and that the Constitution Bench has not
encouraged standardization and categorization of crimes and even otherwise it is not
possible to standardize and categorize all crimes.
822. Recently, in Shankar Kisanrao Khade Vs State of Maharashtra : (2013) 5
SCC 546, it has been held as follows:
''Aggravating circumstances as pointed out above, of course, are not exhaustive
so also the mitigating circumstances. In my considered view that the tests that we have
to apply, while awarding death sentence, are crime test, criminal test and the R-R
Test and not balancing test. To award death sentence, the crime test has to be fully
satisfied, that is 100% and criminal test 0%, that is no mitigating circumstance
favouring the accused. If there is any circumstance favouring the accused, like lack of
intention to commit the crime, possibility of reformation, young age of the accused, not a
menace to the society, no previous track record etc., the criminal test may favour the
accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the
aggravating circumstances to the fullest extent and no mitigating circumstances
favouring the accused, still we have to apply finally the rarest of the rare case test (R-R
Test). R-R test depends upon the perception of the society that is society-centric and

359

not Judge-centric, that is, whether the society will approve the awarding of death
sentence to certain types of crimes or not. While applying that test, the Court has to look
into variety of factors like societys abhorrence, extreme indignation and antipathy to
certain types of crimes like sexual assault and murder of intellectually challenged minor
girls, suffering from physical disability, old and infirm women with those disabilities etc..
Examples are only illustrative and not exhaustive. Courts award death sentence since
situation demands so, due to constitutional compulsion, reflected by the will of the
people and not the will of the Judges.''
823. In my view, the three tests mentioned in the aforesaid decision have to
be applied in deciding the sentence to be imposed on accused 1 to 7 for the offence of
murder. The crime is important (cruel, diabolic, brutal, depraved and gruesome) but the
criminal is also important.
824. The murder in this case was cold-blooded, pre-planned and brutal. The
motive of the crime was not any personal enmity. The manner in which the murder was
committed reveals extreme depravity. The action of accused not only was inhuman but
ruthless and barbaric. It shocks not only the judicial conscience but the collective
conscience of the society. In this case, the crime test has been satisfied fully against the
accused 3 to 7 who actually hacked the deceased to death. At the same time, accused 1
and 2 had not directly participated in killing the deceased. The crime test is not satisfied
against them.
825. Learned Special Public Prosecutors have contended that accused 1 to 7
are involved in many murder cases and they are hard - core criminals and that they are
beyond reformation. Except the verbal assertions made by the Special Public

360

Prosecutors in the court, there is no material before the court to prove that accused 1 to
7 have got criminal antecedents.
826. In Shankar Kisanrao Khade Vs State of Maharashtra : (2013) 5 SCC
546, it has been held as follows :
''61. ....................In my view, the mere pendency of criminal cases as such cannot
be an aggravating factor to be taken note of while granting appropriate sentence. In
Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, this Court opined that criminal
background and adverse history of the accused is a relevant factor. But, in my view,
mere pendency of cases, as such, is not a relevant factor. This Court in Mohd. Farooq
Abdul Gafur v. State of Maharashtra (2010) 14 SCC 641 dealt with a similar contention
and Justice S. B. Sinha, while supplementing the leading judgment, stated as follows:
178. In our opinion the trial court had wrongly rejected the fact that even though the
accused had a criminal history, but there had been no criminal conviction against the
said three accused. It had rejected the said argument on the ground that a conviction
might not be possible in each and every criminal trial.
62. Therefore, the mere pendency of few criminal cases as such is not an
aggravating circumstance to be taken note of while awarding death sentence unless the
accused is found guilty and convicted in those cases. The High Court was, therefore, in
error in holding that those are relevant factors to be considered in awarding appropriate
sentence.''
827. In the instant case, the prosecution has not produced any material to
show that accused 1 to 7 have been convicted in any case. There is not even material
produced to show that they are persons involved in any other criminal case. Accused 3

361

to 7 are in the age group of 26--35 years. They are unmarried. They are in the prime of
their youth. Their age coupled with the absence of materials to prove their involvement
in other crimes is certainly a mitigating circumstance. The criminal test is not satisfied
against any of the accused convicted in this case.

828. It is true that the deceased was a public figure in the locality. He was the
leader of an emerging political party. Motive of the murder was political animosity.
Accused 1 to 7 were tools in the hands of the persons who entertained political enmity
towards the deceased. But, political murders are not uncommon in Kerala.
829. Dasan Vs. State of Kerala (1986 K.L.T 598) was a case relating to the
murder of a local leader of C.P.I (M). The accused in that case were prominent workers
of the R.S.S in the locality. The murder was committed on account of political enmity.
The murder in that case was premeditated and calculated. There was no provocation. It
was committed openly in a public place. Still, the Hon'ble High Court found that it was
not one of the rarest of rare cases attracting the extreme penalty provided by law.
830. The decision in Arayankandi Sukumaran Vs. State of Kerala : I.L.R 2006
(1) Kerala 61, dealt with the murder of a local leader of B.J.P. He was a young man and
a political leader and LIC agent and he was killed in a very brutal manner in front of his
wife. There were more than 24 injuries. His neck was almost cut. His skull was
completely broken. There was complete disfigurement of face because of the injuries on
nose and ear. Other parts of the body were also injured. There was no personal enmity
towards the deceased. The Hon'ble High Court held that considering the modern trends
in law in the matter of capital punishment, it cannot be termed as a rarest of rare cases.

362

831. In Myladimmal Surendran Vs State of Kerala: A.I.R 2010 SC 3281, the


murder of a local leader of B.J.P by C.P.I (M) activists was dealt with . The murder was
committed in front of the wife of the deceased in a public road. The sentence of death
imposed on the accused by the Sessions Court was set aside by the Hon'ble High Court
and it was upheld by the Apex Court.

832. In Acharaparambath Pradeepan Vs State of Kerala : 2007 (1) KLT 249


(SC), the deceased was the State Vice President of Bhartiya Yuva Morcha. The accused
in that case were members of C.P.I (M). The murder was on account of political enmity
between the two parties. The deceased was a teacher. While he was teaching in a class
in the school, he was brutally murdered in front of the students who were children. While
upholding the conviction of the first accused in the case, the Apex Court found that it
cannot be said to be a rarest of rare cases warranting imposition of the extreme
punishment.
833. Learned Special Public Prosecutor Sri. C.K.Sreedharan has invited
attention of this court to the decision in Kehar Singh Vs State : A.I.R 1988 SC 1883
which dealt with the murder of the then Prime Minister Smt.Indira Gandhi and drawing
inspiration from that decision canvassed for imposing death penalty on the accused in
this case. It was a case in which the protectors became the terminators and the
assassins and betrayed the trust imposed on them. No comparison is possible between
the two cases.
834. In the aforesaid circumstances, I find that the R-R test is also not
satisfied in this case and death penalty is not warranted. It cannot be found that it is a

363

case where sentence of imprisonment for life is unquestionably foreclosed.


835. It needs mention here that though death penalty is not warranted in the
case, the court would have opted for making a direction that accused 1 to 7 shall serve a
minimum period of twenty years in jail without remission. However, in view of the
decision of the Hon'ble High Court in State of Kerala Vs. Unni : I.L.R 2013 (1) Kerala
637, this court has no power to make such a direction.

836. It is also to be mentioned here that there is a misconception that a


prisoner serving a life sentence has an indefeasible right to be released on completion
of either fourteen years or twenty years imprisonment. The prisoner has no such right. A
convict undergoing life imprisonment is expected to remain in custody till the end of his
life, subject to any remission granted by the appropriate Government under Section 432
of the Cr.P.C. which in turn is subject to the procedural checks in that Section and the
substantive check in Section 433-A of the Cr.P.C. (Sangeet Vs State of Haryana : A.I.R
2013 SC 447).
837. In view of the above, sentence of life imprisonment shall be awarded for
the accused who committed the offences punishable under sections 302 I.P.C and 120B
read with 302 I.P.C and 109 read with 302 I.P.C. It would also be proper to impose an
amount of Rs.50000/- each as fine on the accused 1 to 7 and Rs.100000/- each as fine
on the accused 8, 11,13 and 18. Imposing a sentence of rigorous imprisonment for a
period of three years and a fine of Rs.20000/- on accused no.31 for the offence
punishable under section 201 I.P.C would meet the ends of justice in the case.
Award of Sentence

364

838. In the result,


(1) The accused Anoop (A1) is sentenced to imprisonment for life and to
pay a fine of Rs.50000/- (Rupees fifty thousand only) and in default of payment of fine to
undergo rigorous imprisonment for a period of one year for the offence punishable under
section 302 read with 149 I.P.C. He is also sentenced to undergo rigorous imprisonment
for a period of six months for the offence punishable under section 143 I.P.C and
rigorous imprisonment for a period of one year for the offence punishable under section
147 I.P.C.
(2) The accused Manoj Kumar (A2) is sentenced to imprisonment for life
and to pay a fine of Rs.50000/- (Rupees fifty thousand only) and in default of payment of
fine to undergo rigorous imprisonment for a period of one year for the offence
punishable under section 302 read with 149 I.P.C. He is also sentenced to undergo
rigorous imprisonment for a period of six months for the offence punishable under
section 143 I.P.C and rigorous imprisonment for a period of one year for the offence
punishable under section 147 I.P.C and rigorous imprisonment for a period of two years
for the offence punishable under section 148 I.P.C. He is also sentenced to undergo
rigorous imprisonment for a period of five years and to pay a fine of Rs.10000/ (Rupees ten thousand only) and in default of payment of fine to undergo rigorous
imprisonment for a period of six months for the offence punishable under section 5 of the
Explosive Substances Act, 1908.
(3) The accused Sunil Kumar (A3) is sentenced to imprisonment for life
and to pay a fine of Rs.50000/- (Rupees fifty thousand only) and in default of payment of
fine to undergo rigorous imprisonment for a period of one year for the offence

365

punishable under section 302 I.P.C. He is also sentenced to undergo rigorous


imprisonment for a period of six months for the offence punishable under section 143
I.P.C and rigorous imprisonment for a period of one year for the offence punishable
under section 147 I.P.C and rigorous imprisonment for a period of two years for the
offence punishable under section 148 I.P.C. He is also sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of Rs.20000/- (Rupees twenty
thousand only) and in default of payment of fine to undergo rigorous imprisonment for a
period of one year for the offence punishable under section 3 of the Explosive
Substances Act, 1908.
(4) The accused T.K.Rajeesh (A4), Muhammed Shafi (A5), Sijith (A6) and
Shinoj (A7) are sentenced to imprisonment for life and to pay a fine of Rs.50000/(Rupees fifty thousand only) each and in default of payment of fine to undergo rigorous
imprisonment for a period of one year each for the offence punishable under section 302
I.P.C. Each of them is also sentenced to undergo rigorous imprisonment for a period of
six months for the offence punishable under section 143 I.P.C and rigorous
imprisonment for a period of one year for the offence punishable under section 147 I.P.C
and rigorous imprisonment for a period of two years for the offence punishable under
section 148 I.P.C.
(5)

The

accused

K.C.Ramachandran

(A8),

Manojan

(A11)

and

Kunhanandan (A13) are sentenced to imprisonment for life and to pay a fine of
Rs.100000/- (Rupees one lakh only) each and in default of payment of fine to undergo
rigorous imprisonment for a period of two years each for the offence punishable under
section 120B read with 302 I.P.C.

366

(6) The accused Rafeek (A18) is sentenced to imprisonment for life and to
pay a fine of Rs.100000/- (Rupees one lakh only) and in default of payment of fine to
undergo rigorous imprisonment for a period of two years for the offence punishable
under section 302 read with 109 I.P.C.
(7) The accused Pradeepan (A31) is sentenced to undergo rigorous
imprisonment for a period of three years and to pay a fine of Rs.20000/- (Rupees twenty
thousand only) and in default of payment of fine to undergo rigorous imprisonment for a
period of six months for the offence punishable under section 201 I.P.C. He was under
detention during the period from 16.05.2012 to 23.08.2012. This period shall be set off
against 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 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/- (Rupees three lakhs only)
shall be paid to Rema (PW5), the wife of the deceased and Rs.200000/- (Rupees two
lakhs only) shall be paid to Abhinand (CW13), the son of the deceased as compensation
under section 357 Crl.P.C.
(11) The charge against the accused C.H Asokan (A9), who is no more,
stands abated.

367

Other Matters
839. 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 had stayed all further proceedings in the case against accused
Sreedharan @ Karayi Sreedharan (A53), Govindan@Gopi (A58), Rajeesh (A60),
Anandan (A62), Sudheesh (A63) Prabhakaran(A64), Raghavan (A65), Kaippachery
Rameshan (A66), Kaippachery Sudhakaran (A67), Chambadan Janardhanan (A68),
K.K. Ragesh (A69), Angajan (A71), Ponnath Kumaran (A72), Ponnath Rajan (A73) and
Yousaf (A74). The case against them is split up and re-filed as a new case and posted to
28.02.2014. The Sessions Judge, Kozhikode shall be addressed to assign a new
number to the case against them.
840. As the case is not fully disposed of, no final order for disposal of the
properties produced in the case can be passed. Any person desirous of getting any
property produced in the case on interim custody may file application in that regard and
it shall be then considered on its merits.
(Dictated to the Confidential Assistant, transcribed by her, corrected by me and
pronounced in open Court on this the 28th day of January, 2014).

Sd/Special Additional Sessions Judge


(Marad Cases), Kozhikode.

APPENDIX

368

Witnesses Examined for the Prosecution:


PW1

K.K. Praseed S/o Narayanan.

PW2

T.P. Ramesan @ Dinesan S/o Chathu.

PW3

T.P. Maneesh Kumar S/o Kunhikannan.

PW4

P.M. Manoj, Sub Inspector, Vatakara Police Station.

PW5

K.K. Rema W/o T.P. Chandrasekharan.

PW6

Achuthan S/o Kelappan.

PW7

K.P. Naveendas S/o Sivadasan.

PW8

C.P. Haris S/o Hamza.

PW9

T.K. Sumesh S/o Ramesan.

PW10

P. Sooraj Kumar S/o Kunhikelappan.

PW11

E.K. Shijil S/o Chandran.

PW12

K. Vinod S/o Kumaran.

PW13

K.P. Rafeek S/o Abdullakutty.

PW14

Vijesh S/o Vasutty.

PW15

Rajeevan S/o Kunhiraman.

PW16

K.K. Raneesh S/o Rajan

PW17

Subodh S/o Nanu.

PW18

Santhosh S/o Chathukutty Nair.

PW19

E. Babu S/o Madhavan.

PW20

K. Valsan S/o Kunhiraman.

PW21

Babu S/o Kumaran.

PW22

P.M. Pramod S/o Nanu.

369

PW23

K.C. Sivan S/o Kumaran.

PW24

Soman S/o Kannan.

PW25

C.K. Bindumon S/o A.K. Chandran.

PW26

V.M. Raveendra Babu S/o Kunhananda Kurup.

PW27

P. Ajayakumar S/o Kumaran.

PW28

P. Ajith S/o Govindan.

PW29

T.P. Ajitha W/o Subhash.

PW30

K. Premjith S/o Viswanathan.

PW31

Jawad S/o Chekkutty.

PW32

K.O. Sooraj S/o Vasudevan.

PW33

T. Rajesh S/o Dhamodaran.

PW34

S. Sasidharan Pillai S/o Sivaraman Pillai.

PW35

E. Radhakrishnan S/o Balakurup.

PW36

V. Sajith S/o Purushu.

PW37

M. Chandran S/o Kunhikannan.

PW38

Sharlet S/o Varghese.

PW39

P.K. Prathyush S/o Kumaran.

PW40

Mukundan S/o Govindan.

PW41

Abdulla S/o Ahammad.

PW42

P. Sandeep S/o Achuthan.

PW43

Ajith S/o Gopalan.

PW44

V. Jileesh S/o Krishnan.

PW45

C. Prajeesh S/o Padmanabhan.

PW46

C. Anoop S/o Mukundan.

370

PW47

Nithyanandan S/o Vasu.

PW48

V.P. Prakasan S/o Balan.

PW49

P. Sheeja W/o Chandran.

PW50

K. Kunhikannan S/o Kanaran.

PW51

P. Simi W/o Mahesh.

PW52

Nithul S/o Ramesan.

PW53

K. Rinil S/o Sreedharan.

PW54

M. Velayudhan Nambiar S/o Krishnan Nambiar.

PW55

Prakasan S/o Kunhambu Nair.

PW56

Mathews S/o Joseph.

PW57

N.M. Leela W/o Govindan.

PW58

Khader S/o Abdu.

PW59

N.K. Suresh Babu S/o Kumaran.

PW60

P. Lijesh S/o Surendran.

PW61

K.K. Nikhil S/o Chandran.

PW62

V.K. Nishad S/o V. Sasi.

PW63

T. Sumesh S/o Rajan.

PW64

Prajin S/o Jayanandan.

PW65

V. Vijith S/o Vijayan.

PW66

O. Abdul Raoof S/o Abdurahiman.

PW67

M. Naveen S/o Balakrishnan.

PW68

K.K. Pavithran S/o Govindan.

PW69

Nidin Narayanan S/o Narayanan.

PW70

K.M. Rugmini W/o P.K. Narayanan.

371

PW71

K. Smithesh S/o Raveendran.

PW72

P.K. Vineesh S/o Vijayan.

PW73

C.H. Anil Kumar S/o Kunhappu.

PW74

M.C. Ajesh Kumar S/o Gangadharan.

PW75

T. Raveendran S/o Achuthan.

PW76

K. Subeesh S/o Narayanan.

PW77

K.K Sudheer Kumar S/o Govindan.

PW78

Maneesh S/o Kumaran.

PW79

Pramod S/o Balakrishnan.

PW80

P. Rajeesh S/o Ravi.

PW81

K.K. Pradeepan S/o Govindan.

PW82

V.P. Sarojan S/o Nanu.

PW83

P. Subina Baburaj D/o Baburaj.

PW84

Sreejesh S/o Karunakaran.

PW85

C. Saju S/o Raghavan.

PW86

Pushparajan S/o Achutty.

PW87

Vinod S/o Vasu.

PW88

K.C. Rafnas S/o Rafeek.

PW89

K.S. Nived S/o Saseendran.

PW90

Mammukutty, Senior Civil Police Officer, Crime Detachment,


Kozhikode.

PW91

P. Vilasini, Revenue Officer, Thalassery Municipality.

PW92

K. Bhaskaran, Junior Superintendent, Chokli Grama


Panchayath.

PW93

K. Chandrabhanu, Superintendent, Kuthuparamba

372

Municipality.
PW94

Pradeepan, Secretary, Kathiroor Grama Panchayath.

PW95

K. Rejish, Commissioner, Mahe Municipality.

PW96

K. Ajith Kumar, Secretary, New Mahe Grama Panchayath.

PW97

N. Pavithran, Secretary, Kunnothuparamba Grama


Panchayath.

PW98

N.M. Praseetha, Secretary, Panniyannur Grama Panchayath.

PW99

Sheela Sara Abraham, Nodal Officer, Tata Tele Services


Limited.

PW100

P.A. Ajith Kumar, Asst. Motor Vehicles Inspector, Regional


Transport Office, Vatakara.

PW101

N. Rakesh, Asst. Motor Vehicles Inspector, Regional


Transport Office, Vatakara.

PW102

P.V. Ratheesh, Asst. Motor Vehicles Inspector, Regional


Transport Office, Vatakara.

PW103

Salim Vijayakumar, Motor Vehicles Inspector, Regional


Transport Office, Vatakara.

PW104

K.M. Louja, Special Village Officer, Chorode Village Office.

PW105

Dr. Cyriac Job, Additional Professor and Deputy Police


Surgeon, Medical College Hospital, Kozhikode.

PW106

Dr. K. Savithri, Junior Consultant Doctor , Government


Hospital, Vatakara.

PW107

Dr. Shalina Padman, Consultant Doctor, Government


Hospital, Vatakara.

PW108

Dr. Chinmoyi, Consultant Doctor, Government Hospital,


Vatakara.

PW109

K. Vasantha W/o Surendran.

PW110

M.P. Azad, Sub Inspector, Special Branch, Kannur.

373

PW111

Jeevan George, Sub Inspector, Nadapuram Police Station.

PW112

A. Premachandran, Detective Sub Inspector, CBCID, HHW III, Kannur.

PW113

A.V. Vijayan, Sub Inspector, CBCID, Kozhikode.

PW114

Muhammed Rafi, Assistant Sub Inspector, CBCID,


Kozhikode.

PW115

P. Premavally, Junior Superintendent, District Collectorate,


Kannur.

PW116

K.J. Vinoy, Sub Inspector, Iritty Police Station.

PW117

E.V. Fayis Ali, Sub Inspector, Kolavalloor Police Station.

PW118

V.K. Babu Ganesh, Senior Civil Police Officer, Kuthuparamba


Police Station.

PW119

K.A. Sunny, Civil Police Officer, K.A.P, Thrissur.

PW120

Lijo Jose, Civil Police Officer, K.A.P, Thrissur.

PW121

T. Rajesh, Civil Police Officer, Vatakara Police Station.

PW122

N.V. Balakrishnan, Senior Civil Police Officer,


Peruvannamoozhi Police Station.

PW123

K.N.Vasudevan, Senior Civil Police Officer, Kuttiadi Police


Station.

PW124

Sreedharan, Senior Civil Police Officer, Thottilpalam Police


Station.

PW125

R. Manoj Kumar, C.P.O, Vatakara Police Station.

PW126

Suresh Babu S/o Kannan.

PW127

Baburaj, Senior Civil Police Officer, CBCID, Kozhikode.

PW128

K.K. Sugunan, Senior Civil Police Officer, CBCID, Kozhikode.

PW129

Dr.P.C. Anil Kumar, Assistant Surgeon, Government Hospital,


Vatakara.

PW130

Saju. S.Das, Sub Inspector, Meppayoor Police Station.

374

PW131

P. Dileep Kumar, Sub Inspector, Nadapuram Police Station.

PW132

E.K. Rajan, A.S.I, Rural AR Camp, Kozhikode.

PW133

T.T. Ramachandran, Civil Police Officer, Vatakara Police


Station.

PW134

P.P. Rajeev, Senior Civil Police Officer, Kakkoor Police


Station.

PW135

N. Asokan, Senior Civil Police Officer, Vatakara Police


Station.

PW136

Dr. Sujith Sreenivas, Assistant Professor and Assistant


Police Surgeon, Medical College Hospital, Kozhikode.

PW137

Dr. C.K. Anandan, Junior Medical Consultant, Government


Hospital, Vatakara.

PW138

C. Sunil Kumar, Senior Civil Police Officer, Kolavalloor Police


Station.

PW139

P. Sunil Babu, Rural Dy.S.P, Special Branch CID,


Kozhikode.

PW140

Prejish, Rural Dy.S.P, Special Branch CID, Kozhikode.

PW141

V.K. Abdul Khader, Rural Dy.S.P, Special Branch CID,


Kozhikode.

PW142

K.K. Remya, Scientific Assistant, District Crime Records


Bureau, Kozhikode.

PW143

Padmanabhan, Senior Civil Police Officer, Thamarassery


Police Station.

PW144

E. Madhusoodanan, Finger Print Expert, Finger Print Bureau,


Kannur.

PW145

O.C. Ramesh Babu, Test Inspector, Finger Print Bureau,


Vatakara.

PW146

V. Raghavendran, Assistant Police Photographer, District


Crime Records Bureau, Kannur.

PW147

S.V. Valsaraj, Finger Print Expert, Finger Print Bureau,


Vatakara.

375

PW148

Ajeesh Thekadavan, Scientific Assistant, Regional Forensic


Science Laboratory, Kannur.

PW149

Jayan Dominic, Circle Inspector, Panur.

PW150

K. Vasudevan, Nodal Officer, Bharathi Airtel Limited.

PW151

Rajkumar Parothil, Nodal Officer, Idea Cellular Limited.

PW152

Shahin M. Komath, Nodal Officer, Vodafone Cellular Limited.

PW153

K. Vinodan, Circle Inspector, CBCID, Kozhikode.

PW154

Bijuraj, Circle Inspector of Police, Thamarassery.

PW155

Anshith Narayanan S/o Narayanan.

PW156

K.K. Subin S/o Vasu.

PW157

Shinoj S/o Raghavan.

PW158

S.N. Ramesh Raj, Alternate Nodal Officer, B.S.N.L.

PW159

P.T. Prakashan, Judicial First Class Magistrate I,


Kozhikode.

PW160

Dr. Ajesh P.P, Junior Medical Officer, Medical College


Hospital, Kozhikode.

PW161

M. Rajan, R.T.O, Thalassery.

PW162

Sajeendran Meethal S/o Govindan.

PW163

V.V. Benny, Circle Inspector, Kuttiadi Police Station.

PW164

A.P. Shoukathali, Dy.S.P, Thalassery.

PW165

Jossy Cherian, Dy.S.P, Vatakara.

PW166

K.V. Santhosh, Dy.S.P, CBCID, HHW III, Kannur.

Exhibits Marked for the Prosecution:

376

P1

05.05.2012 Seizure Mahazar of KL-58/D 8144 Innova Car.

P2

04.05.2012 F.I.R in Crime no.433/2012 of Vatakara Police Station.

P3

-----

Invitation Letter.

P4

-----

Photocopy of Certificate of Registration of KL-58/D


8144 Innova Car.

P5

-----

Photocopy of Insurance Certificate of KL-58/D 8144


Innova Car.

P6

-----

Blank Cheque Leaf No. 126222 of Kodiyeri Service


Co-operative Bank Ltd, Kodiyeri.

P7

-----

Blank Stamp Paper of Rs. 100/-.

P8

-----

Photocopy of Driving Licence of P.V.Rafeek (A18).

P9

05.06.2012 Statement of PW9 Sumesh Under Section 164


Cr.P.C.

P10

27.04.2012 Licence for Use of Loudspeaker.

P11 P11(a)-

----Minutes Book of Brothers Club, Vallikkad.


17.04.2012 Page No.311 of Exhibit P11.

P12

01.08.2012 Seizure Mahazar of Exhibits P10 and P11.

P13

19.04.2012 Customer Application Form of Pre-paid Mobile Phone


Connection.

P14

19.11.1994 Photocopy of Election Identity Card.

P15

02.07.2012 Statement of PW14 Vijesh Under Section 164 Cr.P.C.

P16

02.08.2012 Statement of PW14 Vijesh Under Section 164 Cr.P.C.

P17

04.05.2012 Petition to Circle Inspector of Panoor by PW18


Santhosh.

P18 Series - -----

Photographs of the Dead Body of


T.P. Chandrasekharan (15 in number).

P19

-----

Compact Disk of Exhibit P18 Series.

P20

05.05.2012 Scene Mahazar.

377

P21

11.06.2012 Seizure Mahazar of Hard Disk (MO73).

P22

06.05.2012 Inquest Report.

P23

-----

P24

08.05.2012 Seizure Mahazar of Exhibits P23, P173 and P174.

P25

18.05.2012 Seizure Mahazar of KL-58/E 2321 Motor Cycle.

P26

17.05.2012 Observation Mahazar.

P27

18.05.2012 Search List.

P28

15.05.2012 Recovery Mahazar of MO1 series, MO46 and MO47.

P29

15.05.2012 Search List.

P30

19.05.2012 Observation Mahazar.

P31

22.05.2012 Seizure Mahazar.

P32

19.05.2012 Observation Mahazar.

P33

04.05.2012 Registration Card of Lyndas Residency,


Kuthuparamba.

P34

19.05.2012 Body Mahazar of KL-58/E 653 Autorickshaw.

Notice of Second Anniversary of Friends Arts and


Sports Club, Kallilthazhe.

P34(a)-

19.05.2012 Kychit of KL-58/E 653 Autorickshaw.

P35

19.05.2012 Seizure Mahazar of KL-58/C 1253 Motor Cycle.

P36

20.05.2012 Search List.

P37

21.05.2012 Seizure Mahazar of KL-58/G 3238 Nano Car.

P38

21.07.2012 Kychit of KL-58/G 3238 Nano Car.

P39

27.05.2012 Observation Mahazar.

P40

27.05.2012 Body Mahazar of KL-58/F 8169 Jeep.

P41

28.05.2012 Search List.

378

P42

04.05.2012 Cash Bill from Chokli Medical Centre.

P43

05.06.2012 Seizure Mahazar of Mobile Phone (MO95).

P44

11.06.2012 Seizure Mahazar of MO51 Series.

P45

11.06.2012 Seizure Mahazar of MO69 to MO71.

P46

11.06.2012 Seizure Mahazar of KL-58/C 3348 Car.

P47

11.06.2012 Observation Mahazar.

P48

11.06.2012 Seizure Mahazar of MO96 and MO97.

P49

14.06.2012 Seizure Mahazar of MO75 Series to MO77.

P50

24.06.2012 Observation Mahazar.

P51

20.07.2012 Statement of PW69 Nidhin Narayanan Under Section


164 Cr.P.C .

P52

-----

P53
P54

05.07.2012 Seizure Mahazar of Ext.P52.


05.07.2012 Kychit of Cheque Issue Register of Kodiyeri Serice
Co-operative Bank.

P55

20.07.2012 Statement of PW71 Smithesh Under section 164


Cr.P.C.

P56

05.07.2012 Seizure Mahazar of Compact Disc (MO52).

P57

05.07.2012 Seizure Mahazar of Invitation Letter (Ext.P3).

P58

06.07.2012 Seizure Mahazar of Mobile Phone.

P59

11.07.2012 Seizure Mahazar of KL-13/T 6190 Car.

P60

11.08.2012 Observation Mahazar.

P61

17.05.2012 Observation Mahazar.

P62

05.02.2005 Copy of the Election Identity Card of PW83 Subina


Baburaj.

P63

11.05.2012 Seizure Mahazar of MO54 to MO57 and MO88.

Ledger Account of A/C No. 9169 of Kodiyeri Serice


Co-operative Bank.

379

P64

06.08.2012 Seizure Mahazar of Mobile Phone (MO58).

P65

15.02.2011 Copy of Driving Licence of PW89 Nived K.S.

P66

20.04.2011 Customer Application Form for Prepaid Mobile Phone


Connection no. 8606713507.

P67

24.07.2012 Ownership Certificate of the House no.12/958 of


Thalassery Municipality.

P68

24.07.2012 Ownership Certificate of the House no.16/578 of Chokli


Grama Panchayath.

P69

24.07.2012 Ownership Certificate of the House no.16/646 of Chokli


Grama Panchayath.

P70

24.07.2012 Ownership Certificate of the House no. 17/278 of


Chokli Grama Panchayath.

P71

25.07.2012 Ownership Certificate of the House no. 4/292 of Chokli


Grama Panchayath.

P72

P73

24.07.2012 Ownership Certificate of the House no. 4/375 A to M of


Kuthuparamba Municipality.
27.07.2012 Ownership Certificate of the House no.9/403 of
Kadirur Grama Panchayath.

P74

26.07.2012 Ownership Certificate of the House no.7/200 of Mahe


Municipality.

P75

26.07.2012 Ownership Certificate of the House no.14/12 of Mahe


Municipality.

P76

24.07.2012 Ownership Certificate of the House no. 8/155B of


New Mahe Grama Panchayath.

P77

25.07.2012 Ownership Certificate of the House no.13/582 of


Kunnoth paramb Grama Panchayath.

P78

25.07.2012 Ownership Certificate of the House no. 1/671A of


Kunnothparamb Grama Panchayath.

P79

25.07.2012 Ownership Certificate of the House no.1/688 of


Kunnothparamb Grama Panchayath.

P80

23.07.2012 Ownership Certificate of the House no.7/69 of

380

Panniyannur Grama Panchayath.


P81

01.08.2012 Letter from Tata Teleservices Limited.

P82

-----

P83

08.03.2011 Customer Application Form for Mobile Phone


Connection.

P84

13.07.1998 Copy of Election Identity Card of C. Babu (A42).

P85

-----

P86

01.05.2012 Customer Application Form for Mobile Phone


Connection.

P87

-----

Copy of First Page of Passport of Sameer.

P88

-----

Document Containing Cell ID Details.

P89

08.08.2012 Seizure Mahazar of Call Data Records of Tata


Teleservices Limited, Cochin.

P90

08.08.2012 Seizure Mahazar of Exts. P83 and P84.

P91

05.07.2012 Inspection Certificate of KL-58/C 3348 Car.

P92

12.07.2012 Inspection Certificate of KL-13/T 6190 Car.

P93

12.07.2012 Inspection Certificate of KL-58/G 7181 Car.

P94

05.07.2012 Inspection Certificate of MH-04/AS 7610 Car.

P95

05.07.2012 Inspection Certificate of KL-58/C 331 Car.

P96

09.08.2012 Inspection Certificate of KL-59/B 5151 Car.

P97

03.08.2012 Inspection Certificate of KL-58/E 2321 Motor Cycle.

P98

03.08.2012 Inspection Certificate of KL-39/ 3332 Car.

P99

03.08.2012 Inspection Certificate of KL-13/N 8570 Motor Cycle.

P100 -

Call Data Record of Mobile Phone Connection No.


8891222301.

Call Data Record of Mobile Phone Connection No.


7736822709.

03.08.2012 Inspection Certificate of KL-58/ 2298 Motor Cycle.

381

P101 -

01.06.2012 Inspection Certificate of KL-58/C 1283 Motor Cycle.

P102 -

01.06.2012 Inspection Certificate of KL-58/G 3238 Car.

P103 -

01.06.2012 Inspection Certificate of KL-58/G 1768 Motor Cycle.

P104 -

01.06.2012 Inspection Certificate of KL-58/D 8144 Car.

P105 -

01.06.2012 Inspection Certificate of KL-18/A 6395 Motor Cycle.

P106 -

-----

P107 -

01.06.2012 Wound Certificate of Sijith (A6).

P108 -

14.06.2012 Wound Certificate of Sunil Kumar (A3).

P109 -

14.06.2012 Wound Certificate of K.K. Muhammed Shafi (A5).

P110 -

14.06.2012 Wound Certificate of Manoj Kumar (A2).

P111 -

14.06.2012 Letter from PW106 Dr. Savithri. K.

P112 -

23.05.2012 Wound Certificate of Sijith (A6).

P113 P114 -

13.06.2012 Letter from PW107 Dr. Shalina Padman.


13.06.2012 Wound Certificate of Rafeeque (A18).

P115 -

08.06.2012 Wound Certificate of T.K. Rajeesh (A4).

P116 -

08.06.2012 Letter from PW108 Dr. Chinmoy.

P117 -

14.05.2005 Photocopy of Election Identity Card of K. Vasantha


(PW109).

P118 -

16.06.2012 Observation Mahazar.

P119 -

17.06.2012 Observation Mahazar.

P120 -

18.06.2012 Seizure Mahazar of Shirt.

P121 -

18.06.2012 Observation Mahazar.

P122 -

16.05.2012 Seizure Mahazar of the Mobile Phone (MO60).

P123 -

14.06.2012 Seizure Mahazar.

P124 -

23.06.2012 Seizure Mahazar of KL-58/C 331 Car.

Sketch of Scene of Occurrence.

382

P125 -

16.05.2012 Seizure Mahazar of Mobile Phone (MO61).

P126 -

01.07.2012 Observation Mahazar.

P127 -

01.07.2012 Observation Mahazar.

P128 -

01.07.2012 Observation Mahazar.

P129 -

01.07.2012 Observation Mahazar.

P130 -

15.05.2012 Seizure Mahazar of Mobile Phone (MO62).

P131 -

28.05.2012 Seizure Mahazar.

P132 -

12.06.2012 Seizure Mahazar .

P133 -

13.06.2012 Seizure Mahazar .

P134 -

-----

P135 -

14.06.2012 Certified Copy of Report in Cr. No. 787/12 of Iritty


Police Station.

P136 -

14.06.2012 Copy of F.I.R in Crime No. 787/12 of Iritty Police


Station.

P137 -

20.05.2012 Search Memorandum.

P138 -

-----

P139 -

16.06.1998 Copy of Election Identity Card of A13.

P140 -

19.06.2012 Observation Mahazar .

P141 -

11.07.2012 Seizure Mahazar of KL-58/G 7181 Car.

P142 -

17.07.2012 Seizure Mahazar of Rubber Mats (MO63 series).

P143 -

18.07.2012 Seizure Mahazar of KL-39/3332 Car.

P144 -

14.07.2012 Seizure Mahazar .

P145 -

07.05.2012 Seizure Mahazar of Plastic Chappal (MO44).

P146 -

06.05.2012 Seizure Mahazar .

Letter Regarding Explosive Licence from the A.D.M,


Kannur.

Passport (No.A7805466) of A13.

383

P147 -

20.05.2012 Seizure Mahazar .

P148 -

-----

Bill Book of Lyndas Residency.

P148(a)-

-----

Page No. 941 of Exhibit P148.

P149 -

19.09.2009 Copy of Driving Licence of C. Shanoj (A33).

P150 -

11.08.2012 Seizure Mahazar.

P151 Series- -----

Photographs of Parts of KL-18/H 4907 Motor Cycle


(3 in number).

P152 -

17.05.2012 Seizure Mahazar of Mobile Phone .

P153 -

08.06.2012 Seizure Mahazar.

P154 -

22.06.2012 Observation Mahazar .

P155 -

04.07.2012 Seizure Mahazar of MH-04/AS 7610 Car.

P156 Series- -----

Photographs (6 in number).

P157 -

01.08.2012 Seizure Mahazar of Photographs (Ext.P18) and


Compact Disc (Ext.P19).

P158 -

15.05.2012 Seizure Mahazar of Mobile Phone (MO68).

P159 -

01.06.2012 Seizure Mahazar of Cash Bill from Chokli Medical


Centre (Ext.P42).

P160 -

05.06.2012 Seizure Mahazar of Intelligence Reports.

P161 -

05.06.2012 Copy of Forwarding Letter of Intelligence Reports.

P162 -

06.04.2009 Intelligence Report.

P163 -

23.03.2012 Intelligence Report.

P164 -

25.10.2010 Intelligence Report.

P165 -

11.11.2010

P166 -

15.10.2010 Intelligence Report.

Intelligence Report.

384

P167 -

17.03.2012 Intelligence Report.

P168 -

14.06.2012 Seizure Mahazar.

P169 -

04.07.2012 Body Mahazar of KL-58/B 5151 Car.

P170 -

12.06.2012 Letter from PW129 Dr. P.C. Anilkumar.

P171 -

12.06.2012 Wound Certificate of M.C. Anoop (A1).

P172 -

19.05.2012 Observation Mahazar.

P173 -

-----

Card of Friends Arts and Sports Club, Kallilthazhe.

P174 -

-----

Note book of Friends Arts and Sports Club,


Kallilthazhe.

P175 -

08.05.2012 Seizure Mahazar of Titan Watch (MO43).

P176 -

09.05.2012 Seizure Mahazar Exts. P4 to P8.

P177 -

07.06.2012 Observation Mahazar.

P178 -

26.06.2012 Seizure Mahazar of KL-18/F 8500 Autorickshaw.

P179 -

05.05.2012 Postmortem Report.

P180 -

07.08.2012 Seizure Mahazar of Memory Stick (MO53).

P181 -

04.05.2012 Wound Certificate of T.P. Chandrasekharan.

P182 -

04.05.2012 Intimation.

P183 -

14.07.2012 Wound Certificate of Shinoj (A7).

P184 -

14.06.2012 Seizure Mahazar.

P185 -

14.06.2012 Arrest Memo of Manoj Kumar (A2).

P186 -

14.06.2012 Arrest Memo of Sunil Kumar (A3).

P187 -

14.06.2012 Arrest Memo of Muhammed Shafi (A5).

P188 -

14.06.2012 Arrest Memo of K. Sreejith (A48).

P189 -

14.06.2012 Arrest Memo of M. Sudheesh (A49).

385

P190 -

14.06.2012 Arrest Memo of P. Jigesh (A50).

P191 -

05.05.2012 Kychit of Deadbody of T.P. Chandrasekharan.

P192 -

23.05.2012 Seizure Mahazar .

P193 -

22.05.2012 Seizure Mahazar.

P194 -

22.05.2012 Seizure Mahazar.

P195 -

-----

Photographs of Finger Print

P196 -

-----

Photographs of Finger Print.

P197 -

-----

Photographs of Chance Print.

P198 -

16.07.2012 Finger Print Examination Report.

P199 -

05.05.2012 List of Samples.

P200 -

23.06.2012 Report of Scientific Assistant.

P201 -

22.05.2012 List of Samples Collected From House no.7/870 of


Mahe Municipality.

P202 -

22.05.2012 Report of Scientific Assistant.

P203 -

11.06.2012 List of Burned Remnants.

P204 -

09.07.2012 Report of Scientific Assistant.

P205 -

03.07.2012 Report of Examination of Washing Machine (MO85).

P206 -

09.05.2012 Seizure Mahazar of Digital Video Recorder MO86.

P207 -

10.05.2012 Seizure Mahazar of Digital Video Recorder MO87.

P208 -

-----

Petition Register of Chokli Police Station.

P208(a)-

-----

Page no.47 of Ext.P208.

P209 -

04.08.2012 Letter from Airtel.

P210 -

08.08.2012 Seizure Mahazar of Call Data Records of Airtel.

P211 -

25.08.2011 Application Form for Prepaid Mobile Phone


Connection.

386

P212 -

-----

Photocopy of Driving Licence.

P213 -

-----

Call Data Records of the Mobile Phone Connection


No.9567890119.

P214 -

22.12.2009 Application Form of C. Rajith (A27) for Prepaid Mobile


Phone Connection.

P215 -

-----

Photocopy of S.S.L.C Book of C. Rajith (A27).

P216 -

-----

Call Data Records of the Mobile Phone Connection


No.8129392004.

P217 -

-----

Call Data Records of the Mobile Phone Connection


No.9895725535.

P218 -

-----

Call Data Records of the Mobile Phone Connection


No. 9567474878.

P219 -

-----

Call Data Records of the Mobile Phone Connection


No. 9567011036.

P220 -

-----

P221 -

-----

Call Data Records of the Mobile Phone Connection


No. 9995775865.
List of Customers and Idea Mobile Phone Numbers.

P222 -

-----

List of Cell Identity.

P223 -

-----

List of Idea Tower Locations in Kannur.

P224 -

-----

List of Idea Tower Locations in Kozhikode.

P225 -

08.08.2012 Seizure Mahazar.

P226 -

-----

P227 -

06.10.2011 Customer Application Form with Identity Proof of the


Mobile Phone Connection.

P228 -

08.08.2012 Seizure Mahazar of Ext.P227.

P229 -

-----

P230 -

26.04.20122 Customer Application Form of Mobile Phone

Call Data Records of the Mobile Phone Connection


No.9747170471.

Call Data Records of the Mobile Phone Connection


No. 8606398416.

387

Connection.
P231 -

08.08.2012 Seizure Mahazar of Ext.P230.

P232 -

-----

P233 -

28.11.2010 Customer Application Form of Mobile Phone


Connection.

P234 -

17.06.2010 Copy of Driving Licence.

P235 -

08.08.2012 Seizure Mahazar of Exts. P233 and P234.

P236 -

-----

P237 -

24.08.2008 Customer Application Form of Mobile Phone


Connection.

P238 -

-----

P239 -

08.08.2012 Seizure Mahazar of Exts. P237 and P238.

P240 -

-----

P241 -

29.09.2011 Customer Application Form of Mobile Phone


Connection.

P242 -

11.12.2006 Photocopy of Driving Licence.

P243 -

08.08.2012 Seizure Mahazar of Exts. P241 and P242.

P244 -

-----

P245 -

01.03.2011 Customer Application Form of Mobile Phone


Connection.

P246 -

-----

P247 -

08.08.2012 Seizure Mahazar of Exts. P245 and P246.

P248 -

-----

Call Data Records of the Mobile Phone Connection


No.8606896163.

Call Data Records of the Mobile Phone Connection


No. 9544097009.

Copy of Election Identity Card.

Call Data Records of the Mobile Phone Connection


No.9747577078 .

Call Data Records of the Mobile Phone Connection


No. 9562681111.

Photocopy of Election Identity Card.

Call Data Records of the Mobile Phone Connection


No.954478537.

388

P249 -

14.11.2011

Customer Application Form of Mobile Phone


Connection.

P250 -

07.04.2011

Photocopy of Election Identity Card.

P251 -

08.08.2012 Seizure Mahazar of Exts. P249 and P250.

P252 -

-----

P253 -

26.11.2005 Customer Application Form of Mobile Phone


Connection.

P254 -

25.10.2000 Photocopy of Election Identity Card.

P255 -

08.08.2012 Seizure Mahazar of Exts. P253 and P254.

P256 -

-----

P257 -

19.11.2010 Customer Application Form of Mobile Phone


Connection.

P258 P259 -

05.02.2007 Photocopy of Election Identity Card.


08.08.2012 Seizure Mahazar of Exts. P257 and P258.

P260 -

-----

P261 -

08.08.2012 Seizure Mahazar of Exts. P65 and P66.

P262 -

-----

Call Data Records of the Mobile Phone Connection


No. 8606713507.

P263 -

-----

Call Data Records of the Mobile Phone Connection


No.9995775865.

P264 -

-----

Call Data Records of the Mobile Phone Connection


No. 9656660656.

P265 -

-----

Customer Details of Mobile Phone Connection No.


9656660656.

P266 -

01.08.2012 Letter from Vodafone Cellular Limited.

P267 -

07.05.2013 List of Cell Identity of Vodafone Kerala Circle.

Call Data Records of the Mobile Phone Connection


No.9947212020.

Call Data Records of the Mobile Phone Connection


No. 9947170158.

Call Data Records of the Mobile Phone Connection


No.9526291825.

389

P268 -

24.08.2011 Customer Application Form of Mobile Phone


Connection.

P269 -

01.08.2012 Seizure Mahazar of Exts. P117 and P268.

P270 -

-----

P271 -

01.08.2012 Certificate Issued by Shahin Komath, Nodal Officer,


Vodafone Cellular Limited.

P272 -

20.04.2007 Customer Application Form of Mobile Phone


Connection.

P273 -

01.08.2012 Seizure Mahazar of Exts. P62 and P272.

P274 -

-----

P275 -

21.11.2008 Customer Application Form of Mobile Phone


Connection.

P276 -

13.07.1998 Photocopy of Election Identity Card.

P277 -

01.08.2012 Seizure Mahazar of Exts. P275 and P276.

P278 -

-----

P279 -

01.08.2012 Seizure Mahazar of Idea Mobile Phone Numbers,


Tower Locations and Name and Address of
Customers.

P280 -

01.08.2012 Seizure Mahazar of Vodafone Mobile Phone Numbers,


Tower Locations and Name and Address of
Customers.

P281 -

01.08.2012 Seizure Mahazar of Exts. P282 and P283.

P282 -

17.01.2012 Customer Application Form of Mobile Phone


Connection.

P283 -

06.08.1997 Photocopy of Driving Licence.

P284 -

01.08.2012 Seizure Mahazar of Exts. P285 and P286.

Call Data Records of the Mobile Phone Connection


No.9539481806.

Call Data Records of the Mobile Phone Connection


No.9946452616.

Call Data Records of the Mobile Phone Connection


No.9846246611.

390

P285 -

06.01.2010 Customer Application Form of Mobile Phone


Connection.

P286 -

-----

P287 -

01.08.2012 Seizure Mahazar of Exts. P288 and P289.

P288 -

04.06.2010 Customer Application Form of Mobile Phone


Connection.

P289 -

02.03.2004 Photocopy of Election Identity Card.

P290 -

01.08.2012 Seizure Mahazar of Exts. P291 and P292.

P291 -

22.06.2009 Customer Application Form of Mobile Phone


Connection.

P292 -

25.09.2008 Photocopy of Driving Licence.

P293 -

08.08.2012 Seizure Mahazar.

P294 -

-----

Call Data Records of the Mobile Phone Connection


No.8086407459.

P295 -

-----

Call Data Records of the Mobile Phone Connection


No.9645193160.

P296 -

-----

Call Data Records of the Mobile Phone Connection


No.9048714909.

P297 -

-----

Call Data Records of the Mobile Phone Connection


No.9539381380.

P298 -

-----

Call Data Records of the Mobile Phone Connection


No.9048712091.

P299 -

05.06.2012 Statement of PW155 Anshith Narayanan Under


Section 164 Cr.P.C.

P300 -

05.06.2012 Statement of PW156 K.K. Subin Under Section 164


Cr.P.C.

P301 -

16.08.2012 Letter Regarding Call Data Records and Original


Customer Application Form of B.S.N.L Mobile Phone
Numbers.

Photocopy of Election Identity Card.

391

P302 -

01.03.2004 Customer Application Form of Mobile Phone


Connection.

P303 -

16.06.1998 Copy of Election Identity Card.

P304 -

-----

P305 -

02.11.2002 Customer Application Form of Mobile Phone


Connection.

P306 -

01.09.1999 Photocopy of Election Identity Card.

P307 -

-----

P308 -

01.03.2004 Customer Application Form of Mobile Phone


Connection.

P309 -

01.01.1999 Photocopy of Election Identity Card.

P310 -

-----

Call Data Records of the Mobile Phone Connection


No. 9447543963.

P311 -

-----

Call Data Records of the Mobile Phone Connection


No. 8547348707.

P312 -

01.07.2004 Customer Application Form of Mobile Phone


Connection.

P313 -

20.06.1998 Photocopy of Election Identity Card of P.V. Geothi


Babu (A12).

P314 -

-----

P315 -

22.02.2007 Customer Application Form of Mobile Phone


Connection.

P316 -

17.06.1998 Photocopy of Election Identity Card of Manojan (A11).

P317 -

-----

P318 -

01.09.2004 Customer Application Form of Mobile Phone


Connection.

Call Data Records of the Mobile Phone Connection


No.9447642688.

Call Data Records of the Mobile Phone Connection


No.9447276615.

Call Data Records of the Mobile Phone Connection


No. 9447688670.

Call Data Records of the Mobile Phone Connection


No.9495260673.

392

P319 -

-----

Photocopy of S.S.L.C Book of Sreeyesh.

P320 -

-----

Call Data Records of the Mobile Phone Connection


No.9447931222.

P321 -

20.08.2006 Customer Application Form of Mobile Phone


Connection.

P322 -

-----

Photocopy of Election Identity Card of Shanoj (A33).

P323 -

-----

Call Data Records of the Mobile Phone Connection


No.9495494763.

P324 -

06.08.2011 Customer Application Form of Mobile Phone


Connection.

P325 -

01.01.2002 Photocopy of Election Identity Card.

P326 -

-----

P327 -

27.12.2007 Customer Application Form of Mobile Phone


Connection.

P328 -

30.01.1999 Photocopy of Election Identity Card.

P329 -

-----

P330 -

31.12.2012 Letter for Customer Application Forms of the


B.S.N.L Mobile Phone nos. 9495804804 and
9495494763.

P331 -

27.12.2012 Letter from B.S.N.L.

P332 -

16.05.2013 Letter from B.S.N.L.

P333 -

17.12.2011 Customer Application Form of Mobile Phone


Connection.

P334 -

16.02.1995 Photocopy of Driving Licence of C.P. Haris (PW8).

P335 -

11.06.2012 Proceedings of Test Identification Parade of T.K.


Rajeesh (A4).

P336 -

11.06.2012 Memorandum of Test Identification Parade of T.K.

Call Data Records of the Mobile Phone Connection


No.9847562679.

Call Data Records of the Mobile Phone Connection


No. 9495804804.

393

Rajeesh A4.
P337 -

11.06.2012 Erratum Report in Ext.P336.

P338 -

11.06.2012 List of Accused, Witnesses and Non-suspects in the


Test Identification Parade of T.K. Rajeesh (A4).

P339 -

15.06.2012 Proceedings of Test Identification Parade of


Anoop (A1).

P340 -

15.06.2012 Memorandum of Test Identification Parade of


Anoop (A1).

P341 -

15.06.2012 List of Accused, Witnesses and Non-suspects in the


Test Identification Parade of Anoop (A1).

P342 -

12.07.2012 Proceedings of Test Identification Parade of


K. Shinoj (A7).

P343 -

12.07.2012 Memorandum of Test Identification Parade of


Shinoj (A7).

P344 -

12.07.2012 List of Accused, Witnesses and Non-suspects in the


Test Identification Parade of K. Shinoj (A7).

P345 -

16.06.2012 List of Accused, Witnesses and Non-suspects in the


Test Identification Parade of N.K.Sunil Kumar (A3).

P346 -

19.06.2012 Proceedings of Test Identification Parade of N.K. Sunil


Kumar (A3)

P347 -

19.06.2012 Memorandum of Test Identification Parade of N.K.


Sunil Kumar (A3).

P348 -

28.05.2012 Copy of Forwarding Report.

P349 -

22.05.2012 Registration Particulars of KL-58/D 8144 Innova Car.

P350 -

17.05.2012 Arrest Memo of Shanoj (A33).

P351 -

17.05.2012 Inspection Memo of Shanoj (A33).

P352 -

17.05.2012 Arrest Memo of Manojan (A11).

P353 -

17.05.2012 Inspection Memo of Manojan (A11).

P354 -

20.05.2012 Seizure Mahazar of KL-58/G 1768 Motor Cycle.

394

P355 -

20.05.2012 Property List of KL-58/G 1768 Motor Cycle.

P356 -

27.05.2012 Observation Mahazar.

P357 -

27.05.2012 Observation Mahazar .

P358 -

27.05.2012 Observation Mahazar.

P359 -

05.06.2012 Property List.

P360 -

11.06.2012 Arrest Memo of N.M. Shaju (A37).

P361 -

11.06.2012 Arrest Memo of C.K. Suresh (A34).

P362 -

11.06.2012 Arrest Memo of P. Shobi (A35).

P363 -

11.06.2012 Arrest Memo of V. Rageesh (A47).

P364 -

11.06.2012 Property List.

P365 -

27.06.2012 Arrest Memo of N. Roshith (A38).

P366 -

10.07.2012 Request for Test Identification Parade of Shinoj (A7).

P367 -

10.07.2012 Arrest Memo of K.K. Mukundan (A75).

P368 -

15.05.2012 Arrest Memo of M.K. Pradeepan (A31).

P369 -

15.05.2012 Inspection Memo of M.K. Pradeepan (A31).

P370 -

15.05.2012 Extract of Confession Statement of


M.K. Pradeepan (A31).

P371 -

16.05.2012 Property List.

P372 -

16.05.2012 Arrest Memo of K.P. Dilshad (A20).

P373 -

16.05.2012 Inspection Memo of K.P. Dilshad (A20).

P374 -

16.05.2012 Arrest Memo of P.K. Muhammed Fasalu (A21).

P375 -

16.05.2012 Inspection Memo of P.K. Muhammed Fasalu (A21).

P376 -

14.06.2012 Inspection Memo of N.K. Sunil Kumar (A3).

P377 -

14.06.2012 Inspection Memo of K.K. Muhammed Shafi (A5).

395

P378 -

14.06.2012 Inspection Memo of Manoj Kumar (A2).

P379 -

14.06.2012 Inspection Memo of K. Sreejith (A48).

P380 -

14.06.2012 Inspection Memo of M. Sudheesh (A49).

P381 -

14.06.2012 Inspection Memo of P. Jigesh (A50).

P382 -

05.05.2012 Seizure Mahazar.

P383 -

05.05.2012 Seizure Mahazar.

P384 -

05.05.2012 Seizure Mahazar.

P385 -

05.05.2012 Seizure Mahazar.

P386 -

05.05.2012 Property List.

P387 -

05.05.2012 Property List.

P388 -

05.05.2012 Property List.

P389 -

06.05.2012 Property List.

P390 -

05.05.2012 Property List.

P391 -

06.05.2012 Property List.

P392 -

05.05.2012 Property List.

P393 -

05.05.2012 Property List.

P394 -

05.05.2012 Property List.

P395 -

14.05.2012 Copy of Forwarding Note.

P396 -

-----

P397 -

14.05.2012 Property List.

P398 -

14.05.2012 Copy of Forwarding Note.

P399 -

16.05.2012 Arrest Memo of K.C. Ramachandran (A8).

P400 -

16.05.2012 Inspection Memo of K.C. Ramachandran (A8).

Copy of Cheque Issue Register of Kodiyeri Service


Co-operative Bank.

396

P401 -

16.05.2012 Arrest Memo of M. Saneesh (A41).

P402 -

16.05.2012 Inspection Memo of M. Saneesh (A41).

P403 -

14.05.2012 Property List.

P404 -

29.05.2012 Property List.

P405 -

26.05.2012 Copy of Forwarding Note.

P406 -

06.06.2012 Arrest Memo of K. Kumaran (A43).

P407 -

06.06.2012 Copy of Forwarding Note.

P408 -

07.06.2012 Extract of Confession Statement of


M. Abhinesh (A39).

P409 -

07.06.2012 Arrest Memo of P. Valsalan (A44).

P410 -

07.06.2012 Arrest Memo of P.C. Lalu (A45).

P411 -

07.06.2012 Arrest Memo of K. Anil Kumar (A46).

P412 -

07.06.2012 Arrest Memo of C. Rajan (A40).

P413 -

11.06.2012 Arrest Memo of C.K. Aswanth (A19).

P414 -

11.06.2012 Arrest Memo of M.C. Anoop (A1).

P415 -

11.06.2012 Inspection Memo of M.C. Anoop (A1).

P416 -

11.06.2012 Copy of Forwarding Note.

P417 -

12.06.2012 Property List.

P418 -

12.06.2012 Arrest Memo of P.V. Rafeek (A18).

P419 -

12.06.2012 Inspection Memo of P.V. Rafeek (A18).

P420 -

13.06.2012 Arrest Memo of M. Jijesh Kumar (A36).

P421 -

13.06.2012 Arrest Memo of P. Shimjith (A51).

P422 -

26.06.2012 Arrest Memo of K. Ashokan (A57).

P423 -

10.07.2012 Arrest Memo of Karayi Rajan (A26).

397

P424 -

24.05.2012 Certified Copy of Report in Crime no. 233/2012 of


Chombala Police Station.

P425 -

24.05.2012 Certified Copy of F.I.R of Crime no. 233/2012 of


Chombala Police Station.

P426 -

10.09.2012 Certified Copy of Final Report in Crime no. 233/2012


of Chombala Police Station.

P427 -

17.05.2012 Certified Copy of Report in Crime no. 226/2012 of


Chombala Police Station.

P428 -

17.05.2012 Certified Copy of F.I.R in Crime no. 226/2012 of


Chombala Police Station.

P429 -

13.03.2013 Certified Copy of Final Report in Crime no. 226/2012 of


Chombala Police Station.

P430 -

16.05.2012 Certified Copy of Report in Crime no. 467/2012 of


Vatakara Police Station.

P431 -

17.05.2012 Certified Copy of F.I.R in Crime no. 467/2012 of


Vatakara Police Station.

P432 -

17.03.2013 Certified Copy of Final Report in Crime no. 467/2012


of Vatakara Police Station.

P433 -

29.05.2012 Copy of Forwarding Note.

P434 -

05.05.2012 Copy of order No.37/Camp/ADGP (Admn.)/2012 of


A.D.G.P (Admn.).

P435 -

17.11.2012 Copy of G.O.No. 3380/12/Home Department.

P436 -

16.05.2012 Report regarding Taking-over Charge of Investigation


by K.V. Santhosh (PW166).

P437 -

15.05.2012 Arrest Memo of C. Rajith (A27).

P438 -

15.05.2012 Inspection Memo of C. Rajith (A27).

P439 -

15.05.2012 Arrest Memo of P.M. Rameesh (A28).

P440 -

15.05.2012 Inspection Memo of P.M. Rameesh (A28).

P441 -

15.05.2012 Arrest Memo of K.P. Dipin (A29).

398

P442 -

15.05.2012 Inspection Memo of K.P. Dipin (A29).

P443 -

15.05.2012 Arrest Memo of M.K. Raveendran (A30).

P444 -

15.05.2012 Inspection Memo of M.K. Raveendran (A30).

P445 -

16.05.2012 Report for Addition of Name and Address of Accused.

P446 -

17.05.2012 Report for Addition of Offences.

P447 -

17.05.2012 Report for Addition of Name and Address of Accused.

P448 -

18.05.2012 Report for Addition of Offences.

P449 -

18.05.2012 Report for Addition of Name and Address of Accused.

P450 -

18.05.2012 Observation Mahazar.

P451 -

18.05.2012 Arrest Memo of C. Babu (A42).

P452 -

19.05.2012 Arrest Memo of Geothi Babu (A12).

P453 -

19.05.2012 Inspection Memo of Geothi Babu (A12).

P454 -

19.05.2012 Report for Addition of Name and Address of Accused.

P455 -

19.05.2012 Report for Addition of Name and Address of Accused.

P456 Series- -----

Photographs of KL-58/D 8144 Innova Car.

P457 -

-----

Compact Disc of Ext.P456 Series.

P458 -

22.05.2012 Arrest Memo of S. Sijith (A6).

P459 -

22.05.2012 Inspection Memo of S. Sijith (A6).

P460 -

23.05.2012 Report for Addition of Name and Address of Accused.

P461 -

23.05.2012 Arrest Memo of C.H. Ashokan (A9).

P462 -

23.05.2012 Inspection Memo of C.H. Ashokan (A9).

P463 -

23.05.2012 Arrest Memo of K.K. Krishnan (A10).

P464 -

23.05.2012 Inspection Memo of K.K. Krishnan (A10).

399

P465 -

23.05.2012 Photograph of Chance Finger Prints.

P466 -

23.05.2012 Copy of Forwarding Note.

P467 -

24.05.2012 Report for Addition of Name and Address of Accused.

P468 -

25.05.2012 Arrest Memo of M. Abhinesh (A39).

P469 -

25.05.2012 Inspection Memo of M. Abhinesh (A39).

P470 -

25.05.2012 Copy of Look Out Circular of A13.

P471 -

26.05.2012 Report for Addition of Name and Address of Accused.

P472 -

28.05.2012 Observation Mahazar.

P473 -

28.05.2012 Copy of Look Out Circular of T.K. Rajeesh (A4) and


T.M. Rahul (A24).

P474 -

31.05.2012 Report for Addition of Name and Address of Accused.

P475 -

29.05.2012 Property List.

P476 -

31.05.2012 Copy of Forwarding Note.

P477 -

01.06.2012 Report for Formal Arrest of P. Ajesh (A15).

P478 -

29.05.2012 Property List.

P479 -

07.06.2012 Copy of Forwarding Note.

P480 -

07.06.2012 Arrest Memo of T.K. Rajeesh (A4).

P481 -

07.06.2012 Inspection Memo of T.K. Rajeesh (A4).

P482 -

07.06.2012 Report for Addition of Name and Address of Accused.

P483 -

08.06.2012 Property List.

P484 -

13.06.2012 Arrest Memo of P. Ajesh (A15).

P485 -

13.06.2012 Report Regarding Renumbering of Crime no.433/2012.

P486 -

18.05.2012 Copy of Proceedings of Additional D.G.P (Crime).

P487 -

13.06.2012 Letter from the Director of Forensic Science


Laboratory, Trivandrum.

400

P488 -

14.06.2012 Property List.

P489 -

-----

Copy of Forwarding Note.

P490 -

-----

Property List.

P491 -

14.06.2012 Copy of Forwarding Note.

P492 -

14.06.2012 Copy of Forwarding Note.

P493 -

14.06.2012 Report for Addition of Name and Address of Accused.

P494 -

15.06.2012 Property List.

P495 -

19.05.2012 Property List.

P496 -

15.06.2012 Property List.

P497 -

15.06.2012 Copy of Forwarding Note.

P498 -

18.06.2012 Arrest Memo of M.P. Sanoop (A22).

P499 -

18.06.2012 Inspection Memo of M.P. Sanoop (A22).

P500 -

18.06.2012 Arrest Memo of E.M. Shaji (A23).

P501 -

18.06.2012 Inspection Memo of E.M. Shaji (A23).

P502 -

18.06.2012 Arrest Memo of P.C. Shibu (A16).

P503 -

18.06.2012 Inspection Memo of P.C. Shibu (A16).

P504 -

18.06.2012 Arrest Memo of K. Sreejith (A17).

P505 -

18.06.2012 Inspection Memo of K. Sreejith (A17).

P506 -

18.06.2012 Report for Addition of Name and Address of Accused.

P507 -

11.06.2012 Property List.

P508 -

18.06.2012 Property List.

P509 -

20.06.2012 Request for Transferring of Records from Sub


Divisional Magistrate Court, Thalassery to Judicial First
Class Magistrate Court, Vatakara.

401

P510 -

24.06.2012 Arrest Memo of K. Shamjith (A55).

P511 -

25.06.2012 Arrest Memo of Sarin Sasi (A56).

P512 -

25.06.2012 Report for Addition of Name and Address of Accused.

P513 -

14.06.2012 Property List.

P514 -

20.05.2012 Property List.

P515 -

19.05.2012 Property List.

P516 -

-----

P517 -

28.06.2012 Report for Addition of Name and Address of Accused.

P518 -

28.06.2012 Report for Addition of Name and Address of Accused.

P519 -

29.06.2012 Arrest Memo of P. Mohanan Master (A14).

P520 -

29.06.2012 Inspection Memo of P. Mohanan Master (A14).

P521 -

28.06.2012 Report for Addition of Name and Address of Accused.

P522 -

02.07.2012 Arrest Memo of V.P. Shijeesh (A59).

P523 -

02.07.2012 Report for Addition of Name and Address of Accused.

P524 -

11.06.2012 Property List.

P525 -

11.06.2012 Property List.

P526 -

18.06.2012 Property List.

P527 -

05.07.2012 Report for Addition of Name and Address of Accused.

P528 -

07.07.2012 Request for granting Permission to Seize Rubber Mats


from KL-58/D 8144 Innova Car.

P529 -

06.07.2012 Property List.

P530 -

09.07.2012 Request for Change the Name.

P531 -

09.07.2012 Property List.

P532 -

11.07.2012 Report for Addition of Name and Address of Accused.

Property List.

402

P533 -

11.07.2012 Property List.

P534 -

11.07.2012 Property List.

P535 -

13.07.2012 Property List.

P536 -

18.07.2012 Seizure Mahazar.

P537 -

18.07.2012 Arrest Memo of K. Dhananjayan (A70).

P538 -

18.07.2012 Report for Addition of Name and Address of Accused.

P539 -

19.07.2012 Seizure Mahazar.

P540 -

16.07.2012 Property List.

P541 -

24.07.2012 Copy of Forwarding Note.

P542 -

22.07.2012 Arrest Memo of P. Dhaneesh (A76).

P543 -

22.07.2013 Report for Addition of Name and Address of Accused.

P544 -

16.07.2012 Property List.

P545 -

16.07.2012 Property List.

P546 -

18.07.2012 Property List.

P547 -

19.07.2012 Property List.

P548 -

27.07.2012 Copy of Forwarding Note.

P549 -

25.07.2012 Request for Permission to See Materials Objects


(MO1 series) at F.S.L.

P550 -

26.07.2012 Arrest Memo of C.M. Sunithan (A32).

P551 -

27.07.2012 Report for Addition of Name and Address of Accused.

P552 -

30.07.2012 Request for Forward the Material Objects


(PR326/2012) to Judicial First Class Magistrate Court,
Mattannoor.

P553 -

28.07.2012 Report of M.K. Ajith Kumar, Asst. Director (Explosives),


Forensic Science Laboratory, Trivandrum.

P554 -

07.08.2012 Proceedings of District Magistrate, Kozhikode.

403

P555 -

07.08.2012 Property List.

P556 -

08.08.2012 Property List.

P557 -

08.08.2012 Report for Addition of section 34 I.P.C.

P558 -

13.08.2012 Request for Re-arranging the Rank of Accused.

P559 -

15.05.2012 Property List.

P560 -

16.05.2012 Property List.

P561 -

16.05.2012 Property List.

P562 -

17.05.2012 Property List.

P563 -

15.05.2012 Property List.

P564 -

06.08.2012 Proceedings of A.D.G.P (Crime).

P565 -

08.06.2012 Copy of F.I.R in Crime no.721/2012 of Kuthuparamba


Police Station.

P566 -

08.06.2012 Copy of Report to Additional Inspector General of


Police regarding Ext.P565.

P567 -

15.04.2009 Copy of F.I.R in Crime no. 107/2009 of Edacheri Police


Station.

P568 -

19.03.2010 Copy of F.I.R in Crime no.53/2010 of Edacheri Police


Station.

P569 -

22.02.2012 Copy of F.I.R in Crime no.66/2012 of Edacheri Police


Station.

P570 -

06.11.2009 Copy of F.I.R in Crime no.246/2009 of Chombala


Police Station.

P571 -

14.08.2012 Report of R. Sreekumar, Joint Director Research),


Forensic Science Laboratory, Trivandrum.

P572 -

14.08.2012 Report of R. Vinod Kumar, Assistant Director


(Biology), Forensic Science Laboratory, Trivandrum.

P573 -

30.07.2012 Report of B. Arya, Scientific Assistant, Forensic

404

Science Laboratory, Trivandrum.


P574 -

16.08.2012 Report of K.V. Sreevidya, Scientific Assistant


(Biology), Forensic Science Laboratory, Trivandrum.

P575 -

07.08.2012 Report of T. Abdul Rasak, Scientific Assistant


(Chemistry), Forensic Science Laboratory, Trivandrum.

P576 -

13.06.2012 Report for Addition of Name and Address of Accused.

P577 -

28.06.2012 Report for Addition of Name and Address of Accused.

P578 -

14.06.2012 Copy of Forwarding Note.

P579 -

31.01.2011 Rent Agreement of Sameera Quarters.

P580 -

-------

Photograph.

P581 -

--------

Compact Disk.

P582 -

27-09-2013 Vazhipadu Receipt.

Witnesses Examined for the Defence:


DW1

M.Prasadan, S/o Chathu.

DW2

V.Mridula (Asst. Engineer, K.S.E.B, Koothuparamba).

DW3

M.Valsan (Secretary Eramala Grama Panchayath).

DW4

Manoharan (Exe. Officer, Thiruvangad Devaswam Board).

DW5

P.M Bhaskaran (Photographer).

DW6

N.K. Nanu (Treasurer, C.W.S.A Office).

DW7

Pramod (Asst. Exe. Engineer,K.S.E.B, Orkatteri).

DW8

P. Dolly (Asst.Director of Agriculture, Vatakara).

DW9

K. Vasu (Polling Agent).

DW10

A.K. Pavithran (Asst. Engineer, K.S.E.B. Orkatteri).

Exhibits Marked for the Defence: D1

22.03.2012 Certified Copy of Memorandum of Evidence in Crime

405

no.167/12 of Vatakara Police Station.


D2

20.04.2009 Certified Copy Final Report in Crime no.1275/2008 of


Vatakara Police Station.

D3

22.03.2012 Certified Copy of Final Report in Crime no.167/2012 of


Vatalara Police Station.

D4

20.02.2012 Certified Copy of First Information Statement in Crime


no.167/2012 of Vatakara Police Station.

D5

01.12.2008 Certified Copy of First Information Report in Crime


no.1275/2008 of Vatakara Police Station.

D6

-----

Photograph.

D7

-----

Photograph.

D8

-----

Photograph.

D9

08.06.2012 Kerala Kaumudi Daily.

D10

10.05.2012 Malayala Manorama Daily.

D11

25.05.2012 Kerala Kaumudi Daily.

D12

17.05.2012 Malayala Manorama Daily.

D13

17.05.2012 Mathrubhumi Daily.

D14

06.05.2012 Copy of Notice Under Section 160 Cr.P.C to


K.P. Naveendas (PW7).

D15

16.05.2012 Mathrubhumi Daily.

D16

-----

Photograph.

D17

-----

Photograph.

D18

-----

Photograph.

D19

-----

Photograph.

D20

-----

Photograph.

D21

-----

Photograph.

406

D22

-----

Photograph.

D23

-----

Copy of Attendance Register of Vellikulangara


Co-operative Milk Society for the Months April, 2012
and May, 2012.

D24

----

Call Data Records of the Mobile Phone Connection


No. 9048014554 .

D25

15.05.2013 Certificate Issued by Shahin Komath, Nodal Officer,


Vodafone Cellular Limited.

D26

-----

D27

06.10.2008 Registration Particulars of KL-18/E 1414 Innova Car.

D28

06.05.2013 Call Data Records of the Mobile Phone Connection


No.919497651293 with Certificate.

D29

06.05.2013 Call Data Records of the Mobile Phone Connection


No.9496682127 with Certificate.

D30

10.01.2013 Permission for Use of Loudspeaker.

D31

18.01.2013 Report No.2/RTI/13/B3 of Sub Inspector, Chombala


Police Station.

Call Data Records of the Mobile Phone Connection


No. 8086149223.

D32 -

05-05-2012 Certified Copy of Operator's Diary.

D33 -

25-08-2012 Certified Copy of Application under RTI Act.

D34 -

22-09-2012 Certified Copy of Reply.

D35 -

25-09-2012 Certified Copy of Acknowledgment.

D36 -

27-10-2012 Certified Copy of Application under RTI Act.

D37 -

23-11-2012 Certified Copy of Reply.

D38 -

---------

Certified Copy of Acknowledgment.

D39 -

--------

List of Poojas (Vazhipadu Nirakku Report).

D40 -

--------

Photograph.

D41 -

--------

Photograph.

407

D42 -

--------

Photograph.

D43 -

--------

Photograph.

D44 -

--------

Photograph.

D45 -

--------

Photograph.

D46 -

--------

Photograph.

D47 -

--------

Photograph.

D48 -

--------

Photograph.

D49 -

--------

Photograph.

D50 -

--------

Photograph.

D51 -

--------

Photograph.

D52 -

--------

Photograph.

D53 -

--------

Photograph.

D54 -

--------

Photograph.

D55 -

--------

Photograph.

D56 -

--------

Photograph.

D57 -

--------

Compact Disk.

D58 -

--------

Copy of Lease Agreement.

D59 -

04-05-2012 Certified Copy of Load Shedding Register.

D60 -

--------

D61 -

15-02-2013 Letter from Asst. Director of Agriculture, Vatakara.

D62 -

23-10-2010 Certified Copy of Paper Seal used and


Account of Paper Seals.

D63 -

23-10-2010 Records of Paper Seal used and Account of Paper


Seals.

Certified Copy of Phone Message Register.

408

D64 -

23-10-2010 Records of Paper Seal used and Account of Paper


Seals.

D65 -

---------

D66 -

11-10-2013 11 K.V. Single Line Diagram.

Brown Colour Envelop.

Court Exhibits:C1

20.09.2012 Bond for Return of KL-85/D 8144 Innova car.

C2 Series-

-----

Photographs of KL-58/D 8144 Innova car


(4 in number).

C3

-----

Compact Disc of Ext.C2 Series.

C4

15.06.2012 Remand Report .

C5

-----

C6

27.07.2012 Order in C.M.P No. 5380/ 12 of Judicial First Class


Magistrate, Vatakara.

C7

17.05.2012 Application for Police Custody of A8, A20, A21 and


A41.

C8

17.05.2012 Remand Report.

C9

24.05.2012 Remand Report.

C10

12-6-2012

Remand Report.

C11

16-5-2012

Remand Report.

C12

06.07.2012 Affidavit.

C13

11.07.2012 Affidavit.

C14

11.06.2012 Petition Filed by T.K. Prabhasini


(Mother of T.K. Rajeesh (A4)).

C15

14.06.2012 Application for Providing Medical Aid to T.K. Rajeesh


(A4).

C16

23.06.2012 Affidavit.

C17

06.06.2012 Remand Report

Remand Report.

409

C18

17.05.2012 Affidavit.

Material Objects Marked :


MO1 Series -

Swords (5 Nos.).

MO2

Plastic Container.

MO3

Bracelet.

MO4 Series -

Packets of Sweets (3 in number).

MO5

Cigarette Packet.

MO6

Chewing Gum.

MO7

Paper Pieces.

MO8

Biscuit Packet.

MO9

Packet of Roasted Peanuts.

MO10 Series-

Small Pieces of Cloth (2 in number.).

MO11 Series -

Currency Notes of Rs. 500/- (12 in number).

MO12 Series-

Currency Notes of Rs. 100/- (5 in number).

MO13 Series-

Currency Notes of Rs.10/- (4 in number).

MO14 Series-

List of Articles for Construction of House (2 in number).

MO15

Bus Ticket.

MO16 Series-

Railway Reservation Tickets (2 in number).

MO17

Neopan Tablet.

MO18

Plastic Bottle with Red Colour Lid.

MO19 Series-

Broken Pen with Refill.

MO20 Series-

A Mobile Phone and its parts.

MO21 Series-

SIM Cards of Idea and B.S.N.L.

410

MO22 Series-

A Spectacle and its Glass.

MO23 Series-

Two Coins of One Rupee and One Coin of Fifty Paise.

MO24

Purse.

MO25

Election Identity Card of T.P. Chandrasekharan.

MO26

Driving Licence of T.P.Chandrasekharan.

MO27

Debit Card of Canara Bank of T.P.Chandrasekharan.

MO28

A.T.M Card of Indian Bank of T.P.Chandrasekharan.

MO29 Series-

Cover Containing PAN Card and A.T.M Card of State Bank.

MO30

Identity Card of Railway Season Ticket.

MO31

Railway Ticket.

MO32 Series-

Railway Season Tickets (2 in number).

MO33

Key of KL-18/A 6395 Motor Cycle.

MO34

Comb.

MO35

Broken Indicator Glass.

MO36

Paint Flakes.

MO37

Small Papers (7 in number).

MO38

Shirt.

MO39

Mundu.

MO40

Banian.

MO41

Underwear.

MO42

Belt.

MO43

Watch.

MO44

One Plastic Chappal.

MO45

Key of KL-58/D 8144 Innova Car.

411

MO46

Card Board Piece.

MO47

Plastic Jar Containing Water.

MO48

Brown Paper with Label.

MO49

Shirt.

MO50

Kaili Mundu.

MO51 Series-

Pieces of Yellow Coloured Paper (3 in number).

MO52

Compact Disc.

MO53

Memory Stick of the Videographs of the Postmortem


Examination.

MO54

Number Board KL-18/A 5964 (37.5 c.m x 12 c.m).

MO55

Number Board KL-18/A 5964 (53 c.m x 17 c.m).

MO56

Bottle of Drinking Water.

MO57

Plastic Carry Bag.

MO58

Nokia 2626 Model Mobile Phone.

MO59

Shirt.

MO60

Samsung GTE 2152 Model Mobile Phone.

MO61

Nokia N Series Mobile Phone.

MO62

Nokia 5320 Model Mobile Phone.

MO63 Series-

Rubber Mats (3 in number).

MO64

Digital Video Disc.

MO65

Nokia X2- 01 Model Mobile Phone.

MO66

Samsung G.T 85253 Model Mobile Phone.

MO67

4 GB Memory Card.

MO68

Nokia C2 Model Mobile Phone.

412

MO69

Plastic Sticker.

MO70

Plastic Film.

MO71

Yellow Coloured Paper.

MO72

Sunpath Board.

MO73

Digital Hard Disc.

MO74

Brown Paper with Label.

MO75 Series-

Buttons (2 in number).

MO76

Piece of Burnt Cloth.

MO77

Packet Containing Ash and Soil.

MO78

Cover Containing Cotton Swab of Gray Coloured Powder.

MO79

Cover Containing Paper Pieces and Jute Thread.

MO80

Soil Containing Reddish Brown Stain.

MO81

Cover Containing Soil with Reddish Brown Stain.

MO82

Cover Containing Control Soil.

MO83

Cover Containing Blood Stain in Cotton Guaze.

MO84

Paint Samples.

MO85

Washing Machine.

MO86

Digital Video Recorder.

MO87

Digital Video Recorder.

MO88

Brandy Bottle.

MO89

Brown Paper with Label (MO54).

MO90

Brown Paper with Label (MO55).

MO91

Brown Paper with Label (MO56).

MO92

Brown Paper with Label (MO57).

413

MO93

Brown Paper with Label (MO88).

MO94

Plastic Cover Containing a Tag.

MO95

Nokia C8-00 Model Mobile Phone.

MO96

Bottle Containing Burnt Remnants.

MO97

Cover Containing Ash.

MO98

Plastic Carry Bag.

MO99

Glass.

MO100

Explosive Materials.

MO101

Sealed packet.

MO102

Sealed packet.

MO103

Sealed packet.

MO104

Sealed packet.

MO105

Sealed packet.

1) Name of Police Station and Crime No. : CBCID, Kozhikode, Crime No.
CBCID/406/CR/HHW/III/KKD/2012.
(Vatakara Police Station, Cr.No. 433/2012).
2) Description of the accused
Sl.
No

Name

1 Anoop (A1)

Father's
Name

:
Occupatio
n

Gangadharan Coolie

2 Manoj Kumar @
Gangadharan Coolie
Kirmani Manoj (A2)

Age

Residence Address

32/14

Mangalassery House,
Puthoor Amsom,
Chendayad,
Padanthazha,
Kannur.

41/14 Naduvil Malayatte


House,
Panthakkal P.O,

414

Mahe.
3 N.K. Sunil Kumar
@ Kodi Suni (A3)

Surendran

Coolie

30/14 Meethale Chalil


House, Sharon Villa,
Chokli Amsom,
Nidumbram,
Kannur District.

4 Rajeesh
Thundikkandi @
T.K (A4)

Velayudhan

Coolie

35/14 Karayintavida House,


Pathayakunnu P.O,
Pattiam,
Puthiyatheruvu,
Kannur District.

5 K.K. Muhammed
Shafi @ Shafi (A5)

Moidu

Coolie

28/14 Parambath House,


Near Chokli Oriental
School,
Kannur District.

6 Sijith. S @ Annan
Sijith (6)

Surendran

Business

26/14 Palorath House,


Chambad P.O,
Arayakkool,
Kannur District.

Coolie

29/14 Kannattinkal House,


Ashirvad Nivas,
Kohinoor, Pallur,
Mahe.

7 K. Shinoj (A7)

Achuthan

8 K.C.
Ramachandran
(A8)

Kelappan

Coolie

54/14 Jayasura House,


Kunnummakkara P.O,
Kozhikode District.

9 C.H. Ashokan (A9)


(Died)

Aandi

Pensioner

61/13

Farmer

68/14 Kadathalakkandy
House,
Kunnummukkara Post,

10 K.K. Krishnan (A10) Bappu

Arunima House,
Chuttaprath,
Onchiyam Post,
Vatakara,
Kozhikode District.

415

Kozhikode District.
11 Manojan @ Trouser Govindan
Manojan (A11)

Coolie

48/14

Vadakkeyil House,
Cheruparamba Post,
Kolavallur Amsom,
Thuvvakkunnu,
Kannur.

12 Geothi Babu (A12)

Krishnan

Business

53/14

'Krishna Nivas',
Parambath House,
Cheruparamba Post,
Kunnoth Paramba,
Kannur District.

13 Pandinjare
Kunhikkattil
Kunhanandan
(A13)

Kannan

68/14

Kelothantavida,
Kolavallur Post,
Kunnoth Paramba
Panchayath,
Kannangode.

-----

60/14

Pookkotte House,
Vattoli Post,
Kakkattil, Kozhikode
District.

Nair Farmer

14 P.Mohanan @
Mohanan Master
(A14)

Raman

15 Shibu.P.C (A16)

Govindan

Coolie

32/14

Marajintavide House,
Pattiam, Pachappoyil
Post, Muthiyanga,
Now residing at
Vannathan Veettil,
Naravoor.

16 Sreejith. K (A17)

Janu

Coolie

32/14

Meethale Purayil
House,
Muthiyanga Post,
Pattiam.

17 P.V. Rafeek @
Vazhappapadachi
Rafeek (A18)

Hamsa

Driver

39/14

Valiya Puthalath
House,
Pallur Post, Mahe.

18 Aswanth C.K. @
Achu (A19)

Rajan

Designer

22/14

C.K. House
(Chettiyamkandy),
Kopparakkalam

416

Quarters, Naluthara
Post, Pallur, Mahe.
19 K.P. Dilshad (A20)

Rahim

Business

29/14

Kollamparambath
House, Koroth Road,
Azhiyoor Post,
Vatakara, Kozhikode
District.

20 P.K. Muhammed
Fasalu@ Fasalu
(A21)

Moidu

Business

30/14

Paraparambath
Meethal House,
Koroth Road,
Azhiyoor Post,
Vatakara, Kozhikode
District.

21 Sanoop. M.P (A22) Balakrishnan Coolie

27/14

Parayullathil House,
Thattolikkara,
Chombala Post,
Vatakara, Kozhikode
District.

22 C.K. Rajikanth @
Koorappan (A25)

Raghavan

Auto driver

32/14

Chirunnamkandiyil,
Kodiyeri Amsom,
Paral, Kannur.

23 Rajith. C (A27)

Rajan

Coolie

25/14 Anantham House,


Kodiyeri,
Paral Post, Kannur.

24 P.M. Rameesh @
Kuttu (A28)

Ravi

Student

23/14

'Remyatha Nivas',
Azhiyoor Post,
Kallaravath, Vatakara.

25 K.P. Dipin @ Kuttan Dileepan


@ Dipi (A29)

Coolie

28/14

Kunnummal House,
Kottamalakunnu,
Azhiyoor Post,
Vatakara Village.

26 Raveendran M.K
(A30)

Business

49/14 Padayamkandy
House,
Eramala Village,
Orkkattery,
Kozhikode District.

Chathu

417

27 Pradeepan M.K @
Lambu (A31)

Gopalan

Coolie

35/14 Maram Kunnummal


House, Chokly Post,
Kannur.

28 Shanoj @ Kelan
(A33)

Kunhiraman

Driver

34/14

Kizhakkeyil House,
Muthiyanga,
Pattiam Amsom,
Kannur District.

29 Jijesh Kumar (A36) Gangadharan Driver

30/14

Ottangadi House,
Panniannur, Kanal
Road, Therambath
Vayal, Chokli.

30 Shaju. N.M (A37)

Govindan

Coolie

39/14 Mavullor Meethal


House, Chokly Post,
Punathil Mukku,
Kannur District.

31 M. Abhinesh @
Abhi (A39)

Ashokan

Coolie

30/14

32 Saneesh. M (A41)

Chandran

Driver

29/14 Murikkoli House,


Kunduchira,
Panniyam West Post,
Kannur.

33 C. Babu, Chalil
(A42)

Balan

Office
Secretary

38/14

34 Sreejith. K (A48)

Sreedharan

Bank
Employee

27/14 Mookkath House,


Muzhakkunnu Amsom,
Mudakkozhi, Kannur.

Coolie

25/14

35 Sudheesh. M (A49) Sundaran

Kattil Parambath
Maroli House,
Moozhikkara Post,
Kodiyeri.

Grantma House,
Tholambra Post,
Maloor,
Koothuparamba,
Kannur.

Nadukkandy
Parambath House,
Muzhakkunnu
Amsom, Mudakkozhi,

418

Kannur.
36 P. Jigesh (A50)

Kumaran

Night
Watchman

37 K. Dhananjayan
(A70)

Krishnan Nair ---

27/14

Jiji Nivas House,


Muzhakkunnu Amsom,
Mudakkozhi, Kannur.

55/14 Arayalppurath House,


Naravoor,
Koothuparamba.

Date of
Occurrence

04.05.2012

Complaint

04.05.2012

Apprehension

A1

11.06.2012

A2

14.06.2012

A3

14.06.2012

A4

07.06.2012

A5

14.06.2012

A6

22.05.2012

A7

Surrendered on 10.07.2012

A8

16.05.2012

A9

23.05.2012

A10

23.05.2012

A11

17.05.2012

A12

19.05.2012

A13

Surrendered on 23.06.2012

A14

29.06.2012

A16

18.06.2012

419

Released on Bail

A17

18.06.2012

A18

12.06.2012

A19

11.06.2012

A20

16.05.2012

A21

16.05.2012

A22

18.06.2012

A25

10.07.2012

A27

15.05.2012

A28

15.05.2012

A29

15.05.2012

A30

15.05.2012

A31

15.05.2012

A33

17.05.2012

A36

13.06.2012

A37

11.06.2012

A39

25.05.2012

A41

16.05.2012

A42

18.05.2012

A48

14.06.2012

A49

14.06.2012

A50

14.06.2012

A70

18.07.2012

A9

16.07.2012

A10

22.08.2012

A11

23.08.2012

420

A12

23.08.2012

A16

23.08.2012

A17

23.08.2012

A18

24.08.2012

A19

11.06.2012

A20

08.08.2012

A21

08.08.2012

A22

22.08.2012

A25

07.12.2012

A28

07.08.2012

A29

08.08.2012

A30

08.08.2012

A31

22.08.2012

A33

04.08.2012

A36

14.06.2012

A37

11.06.2012

A39

25.05.2012

A41

23.08.2012

A42

18.05.2012

A48

16.06.2012

A49

16.06.2012

A50

16.06.2012

A70

18.07.2012

Commitment

09.10.2012

Charge framed on

20.12.2012

421

Evidence commenced on :

11.02.2013

Close of Trial

20.12.2013

Sentence or Order

28.01.2014

Explanation for delay:-

The case was committed to the Sessions Court on

09.10.2012. The committal records were received on 17.10.2012. The case was filed
and numbered on 17.10.2012 and made over to this court and posted for the
appearance of the accused to 16.11.2012. Examination of witnesses was commenced
on 11.02.2013. Evidence closed on 29.10.2013. Hearing completed on 20.12.2013.
Judgment pronounced on 22.01.2014. Sentence imposed on 28.01.2014.
Sd/-

Special Additional Sessions Judge


(Marad Cases), Kozhikode.
/True Copy/
Sheristadar (I/C)