Anoop and Ramkumar P.M. v. State of Kerala (with related matter involving Sreenath)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** **Crl.Rev.Pet.No.157 of 2019** **SC NO.108/2013 OF THE DISTRICT COURT & SESSIONS COURT, PALAKKAD** **CRIME NO.307/2012 OF CHERPULASSERY POLICE STATION, PALAKKAD** ## **REVISION PETITIONERS/ACCUSED NOS.12 & 13:** - **1 ANOOP, AGED 34 YEARS, SON OF SANKARANARAYANAN, KADAMKURUSSI VEEDU, PANAMANNA, PALAKKAD DISTRICT.** - **2 RAMKUMAR P.M., AGED 27 YEARS, SON OF MOHANDAS, PULAKKATT HOUSE, KALLUVAZHI, PALAKKAD DISTRICT.** - **BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.R.S.ASWINI SANKAR SRI.G.RENJITH SRI.T.H.ARAVIND SRI.T.RAMPRASAD UNNI** ## **RESPONDENTS/STATE,COMPLAINANT & RESPONDENTS 1 TO 3 & ACCUSED 8,9,& 10:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 THE STATION HOUSE OFFICER, CHERPULASSERY POLICE STATION, CHERPULASSERY, PALAKKAD DISTRICT, PIN-679 503.** - **3 SREENATH, SON OF SIVASANKARAN, CHIRAKKAL HOUSE, ATTASSERY, KOTTAPADAM, PALAKKAD DISTRICT, PIN-679 513.** - **4 JINEESH, SON OF RAJAN, MOZHANKUNNATH VEEDU, KALLUVAZHI, PALAKKAD DISTRICT, PIN-679 514** - **5 SHAJUMON, SON OF BHASKARAN, CHUNKATH HOUSE, ALUMKULAM, KALLUVAZHI, PALAKKAD DISTRICT,PIN-679 514** - **BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI SURESH BABU THOMAS SR PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01.08.2019, ALONG WITH Crl.Rev.Pet.169/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.NoS.157 of 2019 & 169 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** ## **Crl.Rev.Pet.No.169 of 2019** **SC NO.108/2013 OF THE DISTRICT COURT & SESSIONS COURT, PALAKKAD DATED 30-11-2018** **CRIME NO.307/2012 OF CHERPULASSERY POLICE STATION , PALAKKAD** ## **REVISION PETITIONER/ACCUSED NO.8:** **SREENATH, AGED 33 YEARS, S/O.SIVASANKARAN, ATTASSERY, KOTTPADAM, PALAKKAD DISTRICT-679513.** **BY ADVS.SRI.P.SAJU** **SRI.R.PRATHEESH (ARANMULA)** **RESPONDENTS/STATE/COMPLAINANT/RESPONDENTS 2 TO 5/ ACCUSED NOS.9, 10, 12 & 13:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 THE STATION HOUSE OFFICER, CHERPULASSERY POLICE STATION, CHERPULASSERY, PALAKKAD DISTRICT, PIN-679503.** - **3 JINEESH, AGED 27 YEARS, S/O.RAJAN, MOZHANKUNNATH VEEDU, KALLUVAZHI, PALAKKAD DISTRICT-679514.** - **4 SHAJUMON, AGED 32 YEARS, S/O.BHASKARAN, CHUNKATH HOUSE, ALUMKULAM, KALLUVAZHI, PALAKKAD DISTRICT-679514.** - **5 ANOOP, AGED 33 YEARS, S/O.SANKARANARAYANAN, KANDAMKURUSSI VEEDU, PANAMANNA, PALAKKAD DISTRICT-679501.** Crl.R.P.NoS.157 of 2019 & 169 of 2019 3 **6 RAMKUMAR, AGED 26 YEARS, S/O.MOHANDAS, PULAKKAT HOUSE, KALLUVAZHI, PALAKKAD DISTRICT-679514.** **BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI. SURESH BABU THOMAS SR. PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01.08.2019, ALONG WITH Crl.Rev.Pet.157/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.NoS.157 of 2019 & 169 of 2019 4 ## **ORDER** The petitioners in Crl.R.P.No.157 of 2019 are the accused Nos.12 and 13 and the petitioner in Crl.R.P.No.169 of 2019 is the 8[th] accused in S.C.No.108 of 2013 on the file of the Court of Session, Palakkad Division. In the said case, the petitioners along with co-indictees have been summoned by the learned Sessions Judge to answer a charge under Sections 120B, 341, 307 and 302 r/w. Section 34 of the IPC and Section 20 r/w. Section 27 of the Arms Act. 2. Contending that there are no materials in the final report to frame a charge against them, the petitioners filed a petition seeking discharge under Section 227 of the Code of Criminal Procedure, 1973. The learned Sessions Judge, by the impugned order, dismissed the petition. 3. The said order is assailed in these petitions filed under Section 397 r/w. Section 401 of the Code. 4. The facts as they emerge from the records can be briefly narrated in the following manner:- According to the prosecution, the Kalluvazhi-Pookottukavu region within the limits of Palakkad District is a fertile ground for fatal political clashes between CPI (M) on the one side and BJP / RSS activists on the other side. Deceased Vineesh was an active political worker of the CPI (M) and he was in Crl.R.P.NoS.157 of 2019 & 169 of 2019 5 the forefront of such clashes between the two groups. The rival side was on the look out to exterminate him for which, they are alleged to have hatched a conspiracy. On 8.4.2012, while the aforesaid Vineesh was traveling on a motor cycle bearing Registration No.KL-54-5084 from Cherpulassery to Pookottukavu with CW1 - Sreekanth on the pillion, four persons who could be identified at sight chased them in two bikes. When Vineesh reached AdackaputhurPookottukavu public road, the accused Nos.1 to 4 over took the bike and waylaid them. They knocked down Vineesh and CW1, slashed both hands of Vineesh with a sword and attacked him with an iron pipe. They are also alleged to have attacked CW1 with a sword and inflicted serious injuries. Though Vineesh was immediately shifted to the hospital, his life could not be saved. On the same day itself, at about 7.30 p.m., Crime No. 307 of 2012 was registered at the Cherpulassery Police Station, inter alia, under Section 302 of the IPC on the strength of the statement given by Sreekanth, the injured witness. The accused are stated to be four persons, who could be identified at sight. 5. The investigation was taken over by CW51, the Inspector of Police, Cheruplasserry. In the course of investigation, it was revealed that it was pursuant to a conspiracy hatched among the accused that the murder was committed. Accused Nos. 6, 11 and 12 are the persons, who had allegedly identified the assailants. They are also alleged to have supplied them with Crl.R.P.NoS.157 of 2019 & 169 of 2019 6 weapons to commit the horrendous act. The rest of the accused are alleged to have taken active part in the hatching of the conspiracy to do away with Vineesh. 6. Sri. K. Ramakumar, the learned Senior Counsel appearing for the revision petitioners in Crl.R.P.No.157 of 2019, would urge that the only material that is relied on by the prosecution to connect the petitioners with the crime are the statements of CWs.41 and 42. CW41 is admittedly, an active member of the party to which the deceased belonged and this fact is admitted by him in his statement. In his statement recorded on 19.05.2012, about one month after the incident, all that CW41 had stated was that a week prior to the incident, he had occasion to see Sudheesh (A7), Praveen (A11), Ramkumar (A13), Jineesh (A9) and Shajumon (A10) standing on the top of a canal bridge in public view and having a conversation. CW42, on the other hand, in his statement, which is recorded on 19.05.2012, stated that he is residing near to the canal bridge and had occasion to witness Sudheesh (A7), Praveen (A11), Ramkumar (A13), Jineesh (A9) and Shajumon (A10) standing on the top of the canal bridge near to his house. The learned Senior Counsel would further urge that the name of the 1[st] petitioner in Crl.R.P.No.157 of 2019 and that of the petitioner in Crl.R.P.No.169 of 2019 has not been mentioned by any of the witnesses in the final report. There are no other materials as well. Insofar as the 2[nd] petitioner Crl.R.P.NoS.157 of 2019 & 169 of 2019 7 in Crl.R.P.No.157 of 2019 is concerned, the only reference to him in the entire final report is in the statements of CWs.41 and 42 and nothing more. 7. Sri. P. Saju, the learned counsel appearing for the revision petitioner in Crl.R.P.No.169 of 2019, submitted that none of the witnesses speak about the involvement of the petitioner and there are no materials even remotely linking him with the incident. 8. Sri.Suresh Babu Thomas, the learned Additional Director General, has appeared for the State. It is submitted that the learned Sessions Judge, after proper evaluation of the prosecution records, had come to the conclusion that there are materials showing their involvement. The said finding cannot be said to be one which is perverse or on improper appreciation of the records. In that view of the matter, no interference is warranted is the submission. 9. During the course of his arguments, the learned ADGP was requested to highlight the materials in the final report, which spoke about the involvement of the petitioners. It is submitted that insofar as accused Nos.8 and 12 are concerned, in spite of his best efforts, he has not been able to find out any records showing their involvement. Insofar as the 13[th] accused is concerned, the learned ADGP submitted that his name has been referred to by CWs. 41 and 42 in their statements. They had stated that they had occasion to witness the accused Nos.7, 9, 10, 11 and 13 standing on the top of a canal Crl.R.P.NoS.157 of 2019 & 169 of 2019 8 bridge. According to the learned ADGP, though the witnesses do not have a case that they had occasion to overhear their conversation, the possibility of them stating so, while they tender evidence in court cannot be ruled out. 10. As it appeared from the impugned order that the learned Sessions Judge had concluded that the Call Data Records collected during investigation pointed to the involvement, the learned ADGP was asked to appraise this Court as to whether any such materials link the petitioners in any way with the crime. After perusing the entire records, it is submitted that the prosecution has not been able to collect any electronic evidence to connect them with the incident which took place on 8.4.2012. It is also submitted that the Call Data Records have not been produced before the Court below to prove that the accused had interacted with each other or that they had a role in the conspiracy. No witnesses have been cited as well. 11. I have anxiously considered the submissions advanced and have perused the final report. 12. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to Crl.R.P.NoS.157 of 2019 & 169 of 2019 9 the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exist, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. (See **Amit Kapoor v. Ramesh Chander and others[1]** ) 13. In **State of Bihar v. Ramesh Singh[2] ,** the Apex Court had occasion to interpret Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial. In paragraph No. 4 of the judgment, it was observed as under: “4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either Under Section > 1 (2012) 9 SCC 460) > 2 [(1977) 4 SCC 39] Crl.R.P.NoS.157 of 2019 & 169 of 2019 10 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- ... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding Crl.R.P.NoS.157 of 2019 & 169 of 2019 11 against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order Under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not Under Section 227.” ## 14. Discharge of accused under Section 227 of the Code was extensively considered by the Hon’ble Supreme Court in **Vijayan.P. v. State of Kerala and Another[3] ,** wherein it was held as under: **“** 10.... If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial 3 2010 (2) SCC 398 Crl.R.P.NoS.157 of 2019 & 169 of 2019 12 Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In Assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” ## 15. While considering the very same provisions i.e., framing of charges and discharge of accused, again in **Sajjan Kumar v. Central Bureau of Investigation[4]** , the Apex Court held as under: “16. It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground 4 (2010) 9 SCC 368 Crl.R.P.NoS.157 of 2019 & 169 of 2019 13 for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. xxxxxx xxxxxx xxxxxx 17. Exercise of jurisdiction under Section 227 & Section 228 Cr.P.C. On consideration of the authorities about the scope of S.227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad Crl.R.P.NoS.157 of 2019 & 169 of 2019 14 probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” Crl.R.P.NoS.157 of 2019 & 169 of 2019 15 16. With the above principles in mind, I have perused the records. Insofar as the petitioners herein are concerned, the prosecution hopes to bring home the charge solely on the basis of the evidence tendered by CW 41 and CW 42. All that the witnesses state in their statements recorded after a month of the date of registration of the crime is that they had occasion to see a group of persons standing on the top of the canal bridge. CW 41 further states that they were seen having a conversation in the open, a week prior to the incident. CW 42 merely says that they were seen standing on top of the bridge. None of them say that they had overheard the conversation. Insofar as the accused Nos.8 and 12 are concerned, neither of the witnesses speak even about their presence. Insofar as the 13[th] accused is concerned, all that they state is that he was found standing on top of the bridge with the others. The prosecution has not been able to point out any other material, which shows their involvement. 17. While dismissing their application, the learned Sessions Judge has mentioned about the obtaining of Call Data Records, which pointed to their involvement. However, I do not find from the records accompanying the final report that any such records have been collected by the prosecution. No witness has been cited in the final report to prove any such records. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination, or rebutted Crl.R.P.NoS.157 of 2019 & 169 of 2019 16 by the defence evidence, does not even remotely point to the involvement of the petitioners, then there will be no sufficient ground for proceeding with the trial. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. 18. Of course, the prosecution case is that the accused Nos.5 to 13, which include the petitioners herein, were part of a criminal conspiracy hatched by the accused to do away with Vineesh. They also have a case that accused Nos. 6, 11 and 12 actively aided in recruiting the accused Nos. 1 to 4 and in supplying the weapons used for committing the murder to the killers. 19. There is yet another matter. The prosecution has roped in the petitioners on the premise that they were a party to the conspiracy hatched by the accused. No doubt, in a case of conspiracy, there cannot be any direct evidence. A conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will have to rely on evidence of several witnesses to persuade the trial court to infer that the acts were done with reference to a common intention. The prosecution may rely upon circumstantial evidence as well. At the same time, it is essential that the offence of conspiracy requires some kind of physical manifestation of agreement. In the case on hand, except a very feeble statement by CW42, there is not even a Crl.R.P.NoS.157 of 2019 & 169 of 2019 17 ## semblance of material connecting the accused with the case. 20. On a consideration of the entire materials in the instant case, I find total paucity of materials to rope in the petitioners herein with the aid of Section 120B of the IPC. It appears that the Investigating Officer acted in an exuberant manner and roped in the petitioners, though there is no reference to them in the materials collected by him. Merely because, two of the witnesses stated that they had occasion to witness the 13[th] accused standing on top of a bridge with certain others will not be sufficient to rope in, in a case of murder. If the witnesses are believed as such, it may give rise to some suspicion against the 13[th ] accused. However, it is by now settled that if two views are possible and if the materials collected against the accused give rise to some suspicion, but not grave suspicion, the accused is entitled to a discharge. (See **State by the Inspector of Police, Chennai v. S. Selvi and Another[5]** ) 21. It is trite that the revisional jurisdiction vested on this Court can be invoked where the decisions under challenge are grossly erroneous, or when there is failure to comply with the provisions of law, or when the finding recorded is based on no evidence, or when material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. Having considered the records in the instant case, I am of the 5 ( AIR 2018 SC 81) Crl.R.P.NoS.157 of 2019 & 169 of 2019 18 view that the learned Sessions Judge has erred in rejecting the application of the petitioners for discharge. In the result, these revision petitions are allowed and the order dated 30.11.2018 passed by the learned Sessions Judge in Crl.M.P. No.2839 of 2016 in S.C. No.108 of 2013 is set aside. The discharge petition is allowed and the petitioners will stand discharged. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** IAP //TRUE COPY// P.A. TO JUDGE