Anildas @ Jeerakam Anil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940** ## **CRL.A.No. 1402 of 2013** **AGAINST THE JUDGMENT IN SC 974/2006 of ADDL. DISTRICT COURT FAST TRACK COURT-II, THIRUVANANTHAPURAM DATED 24-07-2013** ## **APPELLANT/ACCUSED:** **ANILDAS @ JEERAKAM ANIL S/O.TITUS, THATTALI VEEDU, KPVII/552, KUDAPPANAKKUNNU VILLAGE.** **BY ADV. SRI.B.RAMAN PILLAI (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY ADV.SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.01.2019, THE COURT ON 16.01.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.1402/13 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellant challenging the verdict of the Additional Sessions Judge, Fast Track-II, Thiruvananthapuram in S.C. No. 974 of 2006 dated 24/07/2013, by which he was found guilty under Sections 302 read with Section 34 and Section 326 of the Indian Penal Code, 1860 (for brevity 'IPC') and also for offence under Section 3 of the Explosive Substances Act, 1908 and was sentenced to undergo imprisonment for life, rigorous imprisonment for 10 years and a fine of `50,000/-, in default of which to undergo simple imprisonment for one year and rigorous imprisonment for 10 years respectively for the above-mentioned offences. 2. The case has the following background: A crime had been registered at Fort Police Station with No.223/1999 by which 12 persons were arrayed as accused. All accused except A3, A10 and A11 appeared before the committal Court and their case was committed to the Court of Sessions, Thiruvananthapuram for trial and disposal with number S.C. 745 Crl.Appeal No.1402/13 -:3:- of 1999. The case against A1, A2, A4 to A9 and A12 were disposed off by the trial Court with a finding that except A5 and A6, all others are guilty for various offences and they were sentenced to imprisonment including life term and A1 and A2 were given death sentence. They challenged the impugned judgment before this Court and this Court confirmed the conviction and sentence of all accused including death sentence except A4 and A12. A4 and A12 were acquitted. Aggrieved by the same, A1, A2, A7 and A8 filed criminal appeals before the Supreme Court of India with case number Crl.A.Nos.656/2001 and 657/2001. State of Kerala also preferred appeals against the acquittal of A4 and A12 as Crl.A.Nos.1049/2001 and 1050/2001. Apex Court vide judgment dated 09/04/2002 reported as _**Farooq and ors. v. State of Kerala**_ (AIR 2002 SC 1826) confirmed the acquittal of A4 and A12, allowed appeals of A7 and A8 and acquitted both of them and also confirmed the conviction of A1 and A2 but commuted their death sentence to imprisonment for life. Subsequently, in the year 2006, the appellant herein, who was A3 in the original charge-sheet surrendered before the committal Court and his case was re-opened and re-filed as C.P. Crl.Appeal No.1402/13 -:4:- No.64/2004. The case was committed to Sessions Court and was taken on file as S.C. No. 974 of 2006 and the Court mentioned above disposed of the same. ## 3. Prosecution case, in brief, is as follows: Accused no. 12 Sulaiman, out of his previous enmity to the deceased Kabir who was undergoing remand in another murder case at the relevant time, hatched a conspiracy with A1 to A11, to murder Kabir and in furtherance of the said conspiracy, A12 abetted A1 to A11 to kill Kabir and all the accused except A12 way-laid in front of the Sub-Jail, Attakkulangara on 16/07/1999 at about 01.00 p.m., positioning themselves as under: A2 and A3 stood near the south western portion of the jail gate carrying explosive substance in a plastic cover; A4 waited on his Hero Honda motor bike bearing number TN 74A 6718 owned by A7 near Buhari Hotel; A1, A8, A9 and A11 stood near the MadanThampuran temple with an Ambassador car bearing number KRB 3106 and A1 was holding a mobile phone and giving instructions to others; A5 and A6 stood near the Air-Travel bureau with a Yamaha motor cycle with number KL 01 M 2108 for helping A2 and A3. When Kabir (the deceased herein) and Vinil Kumar Crl.Appeal No.1402/13 -:5:- (PW11) who were under-trial prisoners were being taken to the Sub-Jail by police constables (CWs 22, 24 and 25 in the original charge-sheet), A3 (the appellant herein) took the explosive substance (a country bomb) from the plastic bag he was carrying and gave the bomb to A2, and A2 hurled it at the deceased causing a huge explosion killing Kabir instantaneously and also seriously injuring PW11, police constables and PW12 a pedestrian. Thereafter, A2 ran towards and mounted on the above-mentioned Hero Honda motor bike which was kept ready for a ride and A3 ran towards the Ambassador car which was kept ready by A1 and others and all the accused drove away giving signal to others. All of them were charged under Sections 302, 307, 324, 120B, 109, 114 r/w 34 of IPC and Sections 3 and 5 of the Explosive Substances Act, 1908. 4. Prosecution examined PWs 1 to 73, marked documents Exts.P1 to P71 and identified material objects as MOs 1 to 9. On the side of the defence, Exts.D1(a) to D1(d) were marked. During 313 examination, the appellant herein denied all allegations and evidence levelled against him and stated that he is working in Blue Star Company at Bangalore since 1998. He pleaded Crl.Appeal No.1402/13 -:6:- innocence. No defence evidence was adduced. 5. Learned Senior Counsel for the appellant Sri.B.Raman Pillai argued that there is absolutely no evidence against the appellant herein. Eye-witnesses turned hostile to the prosecution. The appellant was not familiar to the witnesses. Hence nonconducting of Test Identification Parade is fatal to the prosecution. There is no proper identification of the appellant by PW3 in Court. In appeal, the Hon'ble Supreme Court rejected the evidence of identification adduced against the other accused as it was found unreliable. Being so, the same principle is applicable to the case of the appellant also as he is on equal footing with the accused so acquitted by the Apex Court. The recovery of plastic cover allegedly used for bringing the bomb was recovered at the instance of A1 through Ext.P4 mahazar based on his Ext.P4(a) disclosure statement. Court below thoroughly erred in appreciating evidence and in convicting the appellant. He pleaded for an acquittal. He placed reliance on the judgment of the Apex Court in _**OMA @ Omprakash and Anr. v. State of Tamil Nadu**_ (AIR 2013 SC 805) emphasizing the observation that when an FIR is lodged against unknown persons, the only Crl.Appeal No.1402/13 -:7:- way of identifying them is through Test Identification Parade and a dock identification after the lapse of 10 years without holding identification parade is doubtful and almost an impossibility. 6. On the other hand, the learned Senior Public Prosecutor, Sri.S.U.Nazar argued that prosecution has proved the case against the appellant beyond the shadow of reasonable doubt. PW3 and PW11 identified the appellant. There is no cross examination on these points. MO1 plastic cover containing bomb was carried by the appellant which fact is proved by PW3. PW11's version is fully believable as he was an injured witness. Court below is fully justified in convicting the appellant and hence no interference is called for, he argued. 7. Evidence adduced by the prosecution, in brief, are as under: PWs 1 to 6, 9, 11, 12, 20 and 69 are examined as eyewitnesses. PWs 10, 21, 23 to 28, 30, 31, 32 to 37 and 64 were examined for proving various mahazars including inquest report. PWs 7, 8, 19, 29, 33, 43, 47, 48, 54, 55 and 66 were examined to prove the motive of A12 for the commission of the crime. Medical evidence in the case includes the oral testimonies of PWs 46 to 48, 63 and 73. PW58 and PW60 are two Directors of FSL, Crl.Appeal No.1402/13 -:8:- Thiruvananthapuram. PWs 17, 18, 21, 26, 27 and 28 were examined to prove the ownership of car and motor bike in which the assailants allegedly escaped from the spot. PWs 15 and 16 were examined to prove the ownership of mobile phone used by A1. Other witnesses were examined to prove the attending circumstances against the accused including the availability of deceased and PW11 at the relevant time at the place of occurrence as they were remand accused in other cases. As far as the case against the appellant is concerned, evidence of PW3 and PW11 are crucial as the Court below heavily relied on their testimonies. 8. Coming to the medical evidence, Ext.P36 is the result of post-mortem examination conducted by PW46 Dr.P.Rema, Assistant Professor of Forensic Medicine and Deputy Police Surgeon, on the corpse of Kabir at 11.00 a.m. on 17/07/1999. The following ante-mortem injuries were noted by her:- _“1. Irregular lacerated wound 25x21 cm exposing the skull cavity on the back, right side and top of head with loss of right ear; its left extent 7 cm behind the top of ear, right extent 7 cm outer to outer angle of eye, front extent 10 cm above the middle of left eyebrow and the back extent 5 cm above the root of neck with an area of_ Crl.Appeal No.1402/13 ## -:9:- _multiple puncture lacerations, micro contusions burning and scorching 20x19 cm just below its back extent on the back of neck, right shoulder and adjacent part of trunk. The hair around the back extent were seen singed with blackening of the margins. An iron nail 2.5cm in length was found thrust in to the right side of neck along the edge of blackened area. The skull bones of vault and base were found fractured and fragmented with loss of some fragments on the right side of back. Dura was seen torn irregularly with loss of brain matter. A portion of pulpified brain stem was remaining in situ._ _2. Multiple small abrasions over an area 2x1 cm on the nose 0.5cm below its root._ _3. Multiple small abrasions over an area 3x2 cm on the left side of forehead 1 cm above the middle eyebrow._ _4. Abrasion 1x0.5 cm on the outer aspect of lower lip just to the left of midline._ _5. Lacerated wound 1x0.5x0.3 cm on the inner aspect of lower lip just to the left of midline._ _6. Fracture of tip of central incisor tooth of left upper quadrant._ _7. Abrasion 1.5x1cm on the outer aspect of left elbow._ _8. Abrasion 1.5x1cm on the back of left hand 3 cm below wrist.”_ Crl.Appeal No.1402/13 -:10:- 9. The cause of death is cited as explosion injury caused to the head. Evidence of PW46 when read together with other evidence such as Ext.P46 inquest report and other scientific evidence, makes it rather clear that the deceased died in an incident of bomb explosion and it was a homicide. 10. PW3 and PW11 are projected as eye-witnesses by the prosecution and PW11 is an injured witness. PW3 deposed that he is a head-load worker working near Sub Jail, Attakkulangara. At the relevant time, he was working at Supreme Enterprises. It is his version that he witnessed the incident and it happened on 16/07/1999 at about 01.45 p.m. He was standing in the shop of PW1 for verifying lottery ticket. He purchased a cigarette and began to smoke it by standing in front of the said shop. At that time, a white Ambassador car reached the spot and it stopped towards Sreevaraham. Four persons got out from the said car. He identified one of them as A1 Farook. It is his version that they were talking to each other and looking towards the Sub-Jail. A1 was holding a mobile phone. Suddenly, a loud explosion took place in front of the jail gate and he saw two persons coming running from there, out of which one person got into the car, the Crl.Appeal No.1402/13 -:11:- doors of which were kept open and four people who were standing there also got inside the car. The other person ran and mounted himself on the motor bike which was waiting nearby. Two people were also there near the barber shop in another motor bike. The door of the car was closed and both the car and the bike left the place. He was standing 10 to 15 feet away from the car. He deposed that he could identify the person who ran to the car and got into it as stated above. First he deposed that the said person had similar face features of the accused/appellant standing at the dock. He also stated that he was not so fat at the time of incident. According to him, one of the persons who got into the motor cycle was holding a chopper and the person who went into the car (allegedly appellant herein) was holding a plastic cover. He identified the appellant as the one who got into the car. According to him, the said car with Reg. No. KRB 3106 was shown to him by the police. He saw one person lying dead with broken head and another lying injured near the wall of jail with a handcuff. He found two police men also. 11. During cross-examination, he admitted that police did not show the appellant to him earlier. He also deposed that police Crl.Appeal No.1402/13 -:12:- did not ask him any identifying features to identify the appellant. He further deposed that the plastic cover was not shown to him by the police. After the incident, now only he sees the appellant. After re-entering the witness box, he corrected his earlier deposition that the appellant visited him five days back, not five years. 12. PW11 is an injured eye-witness. According to him, on the date of occurrence, he was taken to Attingal Court in connection with a case in which both himself and the deceased were accused. They were acquitted in the said case. He was hand-cuffed along with the deceased Kabir. They returned from Attingal and alighted at Thampanoor bus stand. Thereafter, they took an autorickshaw and proceeded to the Sub Jail and got down in front of it. At that time, they found two persons standing under a tree. He noticed that one of them was holding a plastic cover in his hand. He also noticed something inside the said cover resembling apple in appearance. When they saw the deceased and PW11, they began to talk to each other. It is his version that both himself and the deceased went to a nearby shop and purchased a cigarette and beedi for Kabir. Money was paid by Crl.Appeal No.1402/13 -:13:- Kabir as his mother had given him money while she met him at Attingal Court. Both the deceased and PW11 proceeded to the Sub-Jail and as they reached near the compound wall of the SubJail, a loud explosion took place and as a result of which Kabir died and PW11 sustained injuries to his head, ear etc., and he became unconscious. He identified the appellant herein as the person who was holding the cover in his hand. According to him, Kabir told him that he had life threat from others. Kabir used to send letters to his mother and he had also arranged to file a petition regarding the threat to his life. 13. It is trite that Test Identification Parade is not a substantive piece of evidence and its primary purpose is for making sure that the investigation is going on in the right direction particularly as far as the identity of the accused is concerned. It is also settled law that when other cogent evidence is available, non-conducting of identification parade is not so material and hence not fatal to the prosecution case. But in the case on hand, prosecution heavily relies on the evidence of PW3 and PW11 to prove the identity of the appellant herein as one of the assailants. Proof of identity assumes importance here Crl.Appeal No.1402/13 -:14:- because apart from the evidence of PW3 and PW11, prosecution adduced no other convincing evidence to prove the involvement of the appellant in the crime. As already discussed, PW3 and PW11 do not have a case that they had previous acquaintance with the appellant. They also do not have a case that they had given any identifying features to the investigating officer as far as the appellant herein is concerned. PW11 (PW9 in the earlier case) turned completely hostile to the prosecution in the connected case S.C. No.745 of 1999. Ext.D1 is marked through PW11 who was PW9 in the said case. 14. PW3 deposed that one of the assailants who came running from the spot got into the car in which A1 was one of the riders and they drove away the car. He also stated that MO1 plastic cover was with the assailant at that time and he identified MO2 as the paper which was inside the said plastic cover. Interestingly, he did not categorically and unambiguously identify the appellant as the assailant in Court. PW11 does not have a case that he saw the appellant hurling bomb at them. It is pertinent to note that citing _inter alia_ , the reason of nonidentification of the accused who were strangers to the Crl.Appeal No.1402/13 -:15:- witnesses, the Apex Court acquitted all the accused except A1 and A2 in the above-mentioned connected case. In this split case, the appellant alone was facing trial and that too after a long gap of 14 years. This is a case in which witnesses identified the appellant for the first time in Court and that too after a gap of 14 years. The appellant herein was not arrested till his surrender in 2004. Investigation agency did not make any attempt to confirm the identity of the appellant by identification of witnesses. We do not find much force in the argument that since PW11 turned completely hostile to the prosecution in the earlier case S.C. No.745/1999, his evidence should not be looked into in this connected case, which arise out of the same transaction. PW11 deposed that he was in jail at the relevant time in connection with other cases and A1 and A2 were in the same prison as under-trial prisoners and hence he was in fear. It is well accepted that even if a witness turns hostile to the prosecution in one connected case because of reasons like life threat, fear etc, his evidence in subsequent split up cases need not be brushed aside completely and it can be considered with abundant caution and without prejudice. Crl.Appeal No.1402/13 -:16:- 15. But the evidence of identification in this case is inconclusive, doubtful and vague. There is no other evidence to connect the appellant herein to the crime. No other material is available to connect the appellant to the crime. Whether the appellant was in possession of the explosive substance is another important question. Prosecution has not adduced sufficient evidence to convince us that the appellant is the one who possessed the explosive substance as alleged by them. MO1 and MO2 were recovered at the instance of A1 only. Under these circumstances, we have no hesitation to extent benefit of doubt in favour of the appellant as the key prosecution witnesses i.e., PW3 and PW11 had failed to identify the appellant as the actual assailant about whom they were deposing, to the satisfaction of this Court. Court below apparently failed to consider the discrepancy in the evidence of PW3 and PW11 in material particulars. The Apex Court with reference to the very same incident had given the benefit of doubt to some of the accused, without relying upon the identification of the accused by a few of the witnesses, which is also an additional factor to arrive at our conclusion. Crl.Appeal No.1402/13 -:17:- In the result, the appeal is allowed. The conviction and sentence passed by the trial Court is hereby set aside. The appellant is to be released forthwith, if his custody is not required in connection with any other case. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/SHIRCY V.** Rp //True Copy// **JUDGE** PS to Judge