Marialusi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY ,THE 12TH DAY OF OCTOBER 2018 / 20TH ASWINA, 1940** ## **CRA(V).No. 245 of 2012** **AGAINST THE JUDGMENT IN SC 2221/2004 of ADDITIONAL SESSIONS COURT, FAST TRACK COURT III, THIRUVANANTHAPURAM** ## **APPELLANT/:** **MARIALUSI, W/O LATE STEPHEN, OSSAVILA COLONY, KOTTAPPURAM P.O.,, VIZHINJAM.** **BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.) SRI.A.RAJASIMHAN SRI.M.CHANDRA BOSE** ## **RESPONDENTS/STATE AND ACCUSED:** - **1 STATE OF KERALA REPRSENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 VICTOR S/O.ANTHONY ADIMA MARY BHAVAN, KOTTAPURAM, VIZHINJAM.** - **3 ALLEZ S/O.VAREED ADIMA KOTTAPPURAM PURAYIDAM, VIZHINJAM.** - **4 JUSTUS S/O.VAREED APPAN KARIMBALIKKARA, VIZHINJAM.** - **5 FRANCIS S/O.ANTHONY ADIMA (DIED ON 12/2/2013 NEAR KOTTAPPURAM, NEW CHURCH, VIZHINJAM,, VIZHINJAM VILLAGE.** - **6 SABARIYAR S/O.INDRIAYATH PALLITHURA PURAYIDOM, KOTTAPURAM,, VIZHINJAM, VIZHINJAM VILLAGE.** - **7 DASAN S/O.PANIYAPPAN VARUVILAKOM PURAYIDOM, VIZHINJAM DESOM, VIZHINJAM.** - **8 BANATTE S/O.PONNAYYAN KUNCHU VEEDU HARBOUR ROAD, VIZHINJAM DESOM, VIZHINJAM.** Crl.Appeal (V) No.245/12 :2 : - **9 AROGYAM S/O.RATHINAM CHARUVILA COLONY VIZHINJAM DESOM, VIZHINJAM.** - **10 MUTHUPILLAI S/O.SEBASTIAN PALLIVILAKOM PURAYIDOM, NEAR PURUTHIYOOR CHURCH, POZHIYOOR, KOLUTHOOR VILLAGE.** - **11 ANTONY S/O.ALEXANDER KKOTTAPPURAM PURAYIDOM, VIZHINJAM DESOM,, VIZHINJAM.** - **12 MARY DASAN S/O.AROGYAM VADAYAR PURYIDOM, KOTTAPPURAM,, VIZHINJAM, VIZHINJAM VILLAGE.** - **13 DEVADAS S/O.SILUVA PICHA KARIMBALLIKARA PURAYIDOM, VIZHINJAM DESOM, VIZHINJAM.** - **14 PANKAN RAJ S/O.MIKHEL KARIMBALLIKARA PURAYIDOM, VIZHINJAM DESOM, VIZHINJAM.** - **15 SILVAYYAN S/O.RATHINAM CHARUVILA COLONY, KARIMBALLIKARA PURAYIDOM, VIZHINJAM DESOM, VIZHINJAM.** - **16 RAJENDRAN S/O.JOSEPH VADAYAR PURAYIDOM, VIZHINJAM DESOM,, VIZHINJAM.** - **17 AROGYAM S/O.ALEXANDER CHARUVILA COLONY, OSSSAVILA, VIZHINJAM DESOM, VIZHINJAM VILLAGE.** - **18 ALAXANDER S/O.DEVASAHAYAM PALLITHARA PURAYIDOM, VIZHINJAM DESOM, VIZHINJAM.** - **19 LAZER SO.ALMANEZ PUTHIYA PALLI PURAYIDOM, VIZHINJAM DESOM,, VIZHINJAM.** - **20 SALTTON S/O.PONNAYYAN KUNCHUVEEDU PURAYIDOM, VIZHINJAM DESOM,, VIZHINJAM.** - **21 GILBERT S/O.DEVASAHAYAM VADAYARPURAYIDOM, KOTTAPPURAM,, VIZHINJAM.** - **22 OUSEPH S/O.DEVASAHAYAM VADAYAR PURAYIDOM, VIZHINJAM DESOM,, VIZHINJAM.** - **23 SABARIYAR S/O.ALMENASAM KOTTAPPURAM PURAYIDOM,, VIZHINJAM DESOM, VIZHINJAM.** Crl.Appeal (V) No.245/12 :3 : |**24**|**POULOSE S/O.ANTHONY**| |---|---| ||**PUTHANPALLI PURAYIDOM,, KOTTAPPURAM, VIZHINJAM,**| ||**VIZHINJAM VILLAGE.**| |**25**|**ROBERT S/O.ALTHANAS**| ||**PALLITHURUAPURAYIDOM, VIZHINJAM DEOSM,, VIZHINJAM.**| |**26**|**DAVIDSON SO.SIMON**| ||**PALLITHURAPURAYIDOM, VIZHINJAM DESOM,, VIZHINJAM**| ||**VILLAGE.**| |**27**|**ALBERT S/O SUZA ALLEZ**| ||**PALLITURAPURAYIDOM, VIZHINJAM DESOM,, VIZHINJAM.**| |**28**|**AROGYADAS S/O.VINSENT**| ||**FRANKO BHAVAN, CHARUVILA COLONLY, VIZHINJAM.**| |**29**|**VAREEDADIMA S/O.ALPHONSE**| ||**THUPPASYKUDY PURAYIDOM,, VIZHINJAM DESOM, VIZHINJAM.**| |**30**|**JOSEPH S/O.DEVASAHAYAM (DIED ON 26/10/2015)**| ||**VADAYAR PURAYIDOM, VIZHINJAM DESOM,, VIZHINJAM.**| |**31**|**ARULAPPAN S/O.ANTHONYAPPAN**| ||**PALLITHURAPURAYIDOM, VIZHINJAM.**| |**32**|**PETER S/O.PETHIRU, VARUVILAKOM VEEDU**| ||**VIZHINJAM.**| |**33**|**SAHAYAM S/O.LOOBEES**| ||**KARIMBALLIKARAPURAYIDOM,, VIZHINJAM DESOM, VIZHINJAM.**| |**34**|**SIMON S/O.SEBASTIAN**| ||**PALLITHURAPURAYIDOM,, VIZHINJAM DESOM, VIZHINJAM.**| |**35**|**VARGHESE S/O.ROCKY**| ||**OOTTUKAL PURAYIDOM, VIZHINJAM DESOM, VIZHINJAM.**| |**36**|**VARGHESE S/O.HENTRY**| ||**KOTTAPPURAM VEEDU, VIZHINJAM DESOM, VIZHINJAM**| ||**VILLAGE.**| |**37**|**RICHANZ S/O.FRANCIS**| ||**KARIMPALLIKARA COLONY, KADAYIKKULAM, VIZHINJAM.**| |**38**|**DAVIDSON S/O.OUSEPH**| ||**PALLITHURAPURAYIDOM, NEAR PAZHYAPALLI, KOTTAPURAM,**| ||**VIZHINAJAM.**| Crl.Appeal (V) No.245/12 :4 : - **39 PUSHPARAJAN S/O.ANTHONYADAMA NEAR PUTHIYAPALLI, KOTTAPPURAM, VIZHINJAM.** - **40 JALASTEEN S/O.FRANCIS KARIMALLIKKARA COLONY, KADAYKULAM DESOM,, VIZHINJAM VILLAGE.** - **41 MARIYADASAN S/O.GLARANS JARRY HOUSE NEAR ST.MARY'S CONVENT, KADAYKULAM,, VIZHINJAM.** - **42 ROBERT S/O.JOHN, JESUS BHAVAN KOTTAPURAM, VIZHINJAM VILLAGE.** - **43 STEPHEN S/O.MALIKIYAZ KARIMBALLIKKARA COLONY, KADARYIKULAM DESOM, VIZHINJAM VILLAGE.** - **44 JOHN ROSE S/O.SABERIYAR THEKKECOLONY, CHARUVILA, KARIMBALLIKKARA, KADAYIKULAM DESOM, VIZHINJAM VILLAGE.** - **45 FRAKONZ S/O.SHINKARAN KARIMBALLIKKARA COLONY, KADAYIKULAM DESOM,, VIZHINJAM VILLAGE.** - **46 LUCKOSE S/O.ARULAPPAN PALLIPURAYIDOM, THUPASEIKUDI, NEAR VIZHINJAM MARKET.** - **47 VIJAYAN S/O.KARLOSE NEAR KARIMBALLIKKARA CHURCH,, KADAIKULAM DESOM, VIZHINJAM.** - **48 BANSEER S/O.SILVAYYAN NEAR NEW KURISADI, KOTTAPPURAM,, VIZHINJAM, VIZHINJAM VILLAGE.** - **49 JERON S/O.ABRAHAM (DIED ON 26/8/2016) NEAR ST.MARY'S HIGH SCHOOL, THOPPUVILA, KOTTAPPURAM, VIZHINJAM VILLAGE.** - **50 REETUS S/O.AROGYAM VADAYARPURAYIDOM, KOTTAPPURAM, VIZHINJAM.** - **BY ADVS.SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR SRI.K.K.DHEERENDRAKRISHNAN** - **SRI.D.FEROZE SRI.S.RAJEEV SRI.V.VINAY** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 9.10.2018, THE COURT ON 12.10.2018 DELIVERED THE FOLLOWING:** Crl.Appeal (V) No.245/12 :5 : ## **J U D G M E N T** ## _**Shaffique, J.**_ The case of the prosecution is that the 6[th] accused had vengeance towards the deceased owing to the deceased's interference in saving a widow from evicting her from a puramboke land in which she was building a house, in the eviction of which the 6[th] accused was involved. So, the 6[th] accused along with other accused entered into a criminal conspiracy to murder the deceased. Pursuant to that conspiracy, the accused persons led by 6[th] accused formed an unlawful assembly on 08/02/1994 in front of Kottappuram church with deadly weapons including silver oak wooden pieces. The accused attacked and inflicted injuries on the deceased and many others including CW24, PW16, PW17 and Sri.Francis. The deceased succumbed to the injuries. 2. Prosecution examined 42 witnesses and marked Exts.P1 to P14 documents and produced MO1 series to MO11 material objects. During trial, the independent witnesses, PWs 1, 3 to 21 and 30 to 33 turned hostile to the prosecution. After the trial, the Court below acquitted all the accused. The present appeal is filed by the wife of the deceased against the order of acquittal and alleged irregularity in the investigation and conduct of the prosecution. 3. The learned counsel for the appellant argued that the investigation and prosecution were faulty and were in collusion to save the culprits. The incident happened in the year 1994. Final report is filed Crl.Appeal (V) No.245/12 :6 : much later and the trial took place only in 2010. Ext.P4 final report was tailored to ensure the acquittal of the accused. Instead of the appellant, another person with similar name was shown as CW14. In the place of the brother of the deceased Sri.Victor, a totally strange person with same name was planted as CW6. The father, mother and elder sister of the deceased were excluded from the list of charge witnesses in the final report though they were questioned by the police and their statements were recorded. According to the appellant, the investigation officer had manipulated the case and defeated the ends of justice for which the prosecution also conceded without any sincere effort to dig out truth by effectively cross examining the hostile witnesses. He relied on the decision of the Apex Court in _**Zahira Habibullah H. Shiekh v. State of Gujarat**_ (2004(2) KLT SN 30). Justice is buried in this case. He sought for setting aside the order of acquittal passed by the trial Court and further sought for a remand of the case and fresh trial with taking of additional evidence of the witnesses the prosecution left out including the appellant. 4. Considering the strong contention raised by the counsel for the appellant, we called for the Case Diary of the matter. It is submitted by the learned Public Prosecutor that on perusal of the records, he could not find the statement of the witnesses alleged to be given to the investigators including that of the appellant. It is not the case that the investigating officer took statements and not cited them as witnesses. Crl.Appeal (V) No.245/12 :7 : There is no error in the conduct of the investigation and prosecution. All the witnesses were examined by the prosecution and unfortunately all of them turned hostile to the prosecution. The trial Court acquitted all the accused after conducting fair trial and giving sufficient opportunity to both sides. 5. We heard both sides and perused the records. 6. As already stated, the trial Court acquitted the accused as all the witnesses cited as eye-witnesses turned hostile to the prosecution. The question to be decided is whether any irregularity and miscarriage of justice occurred in the case at hand as alleged by the appellant. 7. The definite argument of the appellant is that she and other witnesses cited were occurrence witnesses and they had given their statements before the police during investigation and the said statements were recorded by the police. But they were not summoned to the Court and examined. So, truth was suppressed from the Court. But on perusal of the Case Diary, it is found that no such statements are there in the CD. Unless such a material is available in the Case Diary, it is not proper to presume that the investigating officers and the prosecution connived to help the accused. Investigation is the realm of police. It is the prerogative of the investigating agency to collect evidence and bring the culprits before law. The case of the prosecution cannot be led by rumours. The case of the appellant is that instead of them, prosecution examined some other people as witnesses. Perusal of the CD shows that Crl.Appeal (V) No.245/12 :8 : it is not true. In the present case, witnesses cited in the petition including the appellant are not arrayed as charge witnesses nor their statements find a place in the Case Diary. The situation would be different, if the witnesses were arrayed in the charge sheet and the prosecution failed to examine them. 8. It is true that a young man lost his life in the incident. The canons of criminal law demand evidence which proves the guilt of the accused beyond reasonable doubt to convict them. During trial, all witnesses turned hostile to the prosecution. Nothing is brought out to show that there is miscarriage of justice or material irregularity in the conduct of the case. As the factual situation stands so, we don't find any reason to order a fresh investigation nor a re-trial. The judgment of the trial Court need not be disturbed. Appeal is dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/P.SOMARAJAN** Rp //True Copy// **JUDGE** PS to Judge Crl.Appeal (V) No.245/12 :9 : ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE A1 : TRUE COPY OF THE NEWS PAPER REPORT. ANNEXURE A2 : TRUE COPY OF THE NEWS PAPER REPORT. ANNEXURE A3 : TRUE COPY OF THE NEWS PAPER REPORT. ANNEXURE A4 : TRUE COPY OF THE FINAL REPORT. ANNEXURE A5(a) : TRUE COPY OF THE DEPOSITION. ANNEXURE A5(b) : TRUE COPY OF THE DEPOSITION. ANNEXURE A5(c) : TRUE COPY OF THE DEPOSITION.** Rp //True Copy.// PS to Judge