Shihabudheen @ Shihabutti v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022/28TH AGRAHAYANA, 1944** **CRL.MC NO. 9134 OF 2022** **AGAINST SC 1370/2022 OF PRINCIPAL SESSIONS COURT,MANJERI CRIME NO.280/2022 OF NILAMBUR POLICE STATION** ## **PETITIONER/2ND ACCUSED:** **SHIHABUDHEEN @ SHIHABUTTI AGED 36 YEARS S/O. RAHIM, PONNAKARAN HOUSE, SULTHAN BATHERI, WAYANAD DISTRICT., PIN - 673592** **BY ADV P.K.BABU** ## **RESPONDENTS/STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,COCHI, PIN - 682031** - **2 THE STATION HOUSE OFFICER NILAMBUR POLICE STATION, PIN - 679329 BY ADVS. SRI.P. NARAYAYANAN, ADDL.SPECIAL P.P. ADV SREEJA V -SR PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.9134/2022 : 2 : ## **ORDER** ## **Dated this the 19[th] day of December, 2022** The petitioner is the 2[nd] accused in crime No.280/2022 of Nilambur Police Station, which is now pending as S.C. No.1370/2022 before the Principal Sessions Court, Manjeri. The offences alleged against the petitioner and other accused are under Sections 365, 344, 302, and 201, read with Section 34 of the Indian Penal Code. 2. The prosecution case in brief is as follows: On a day in August, 2019, accused Nos.1 to 7 abducted one Shaba Shareef, a resident of Rajeev Nagar, Mysore and wrongfully restrained him in the house belonging to the 1[st] accused at Mukkatta, where he was beaten up to extract the secret information from him about the ancestral treatment method for Piles, in which the said Shaba Shareef was specialised. Later, someday in October, 2020, at night, accused Nos. 1 and 2, along with accused Nos.8 and 9, killed the said Shaba Shareef and thereafter chopped his body into pieces and threw it in the river from Seethi Haji bridge at Crl.M.C.No.9134/2022 : 3 : Edavanna to Chaliyar river. The petitioner was arrested in connection with the aforesaid crime on 10.05.2022, and thereafter he was remanded to judicial custody. After completing the investigation, the Police submitted Annexure-A8 final report implicating the petitioner as the 2[nd] accused along with four other persons. The aforesaid matter is now pending before the learned Principal Sessions Judge, Manjeri, as S.C. No.1370/2022. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-A8. 3. Heard Sri. P.K. Babu, the learned counsel appearing for the petitioner and Sri. P. Narayanan, the Additional Public Prosecutor for the State. 4. The learned counsel for the petitioner vehemently contended that the materials placed on record along with Annexure-A8 final report are not sufficient to implicate the petitioner as the accused. It is pointed out that, even though the offence under Section 302 of the Indian Penal Code is alleged against the petitioner, there are no materials indicating that a murder has indeed occurred, and there are also no materials to prove that even if there occurred a murder, it was that of the said Shaba Shareef as alleged by the prosecution. It is pointed out that Crl.M.C.No.9134/2022 : 4 : the dead body of the deceased has not been recovered so far. There is no direct evidence available indicating the specific role of the petitioner in the commission of the offences. In such circumstances, it is pointed out that, in the absence of any materials indicating the culpability of the petitioner, this is a fit case in which the powers of this Court under Section 482 Cr.P.C. is to be invoked. 5. On the other hand, the learned Public Prosecutor would seriously oppose the aforesaid contentions. It is pointed out that the Police conducted a detailed investigation with the help of scientific experts. The final report was submitted based on valid materials. It is pointed out that the petitioner had confessed about the role of the petitioner in the commission of the said crime, and there are statements of witnesses which are in tune with the aforesaid confession. Several witnesses have specifically identified the petitioner as one of the culprits who had an active role in the commission of the crime. In the test identification parade conducted, CWs 1 to 3 identified the petitioner as the person who abducted the said Shaba Shareef from Rajeev Nagar, Mysore. There are statements of other witnesses indicating the presence of the petitioner at Nilambur at the time when the body of Crl.M.C.No.9134/2022 : 5 : the deceased was disposed of after chopping it into pieces. In such circumstances, dismissal of the Crl. M.C. was sought by the learned Additional Public Prosecutor. 6. I have carefully gone through the records. One of the crucial contentions raised by the learned counsel for the petitioner is that the final report itself is not complete and is defective. It was also contended that there are no materials available on record indicating the commission of murder, and even if it is assumed for an argument that a murder has taken place, there is nothing to suggest that it was Shaba Shareef who was murdered. I have carefully gone through the records in the light of the aforesaid contention raised by the learned counsel for the petitioner. Indeed, the body of the deceased could not be recovered by the prosecution. The specific case of the prosecution in this regard is that on 01.08.2019, accused Nos.1 to 7 and 15 abducted the deceased from his residence at Rajeev Nagar, Mysore, to extract from him the method of treating Piles. Thereafter they took the deceased to the house of the 1[st] accused at Mukkatta, where he was physically tortured for extracting information about the said treatment. Following the torture, Shaba Shareef succumbed to injuries during October, 2020. Subsequently, the accused persons Crl.M.C.No.9134/2022 : 6 : chopped his body into pieces using a knife and other tools, packed it into six plastic bags and threw it into the river from Seethi Haji bridge at Edavanna after untying the bags. 7. The crime was registered based on a confession statement made by the 9[th] accused, Noushad @ Monu, who attempted to commit suicide in front of the Secretariat, Thiruvananthapuram, after pouring petrol on his body, by raising allegations against the 1[st] accused that, he is a born criminal and had committed many criminal acts within India and abroad. From the confession of the 9[th] accused, the details of the offence, which is the subject matter of this crime, were revealed, and a pen drive was also recovered from his possession. From an examination of the pen drive, it was seen that, in a room equipped with an air conditioner, a man aged about 50 years was seen confined using an iron chain. Some of the witnesses later identified the said person as the deceased. The 9[th] accused, who made the confession statement and the statement under Section 164 Cr.P.C., had identified the room, which was used as the place of confinement of the deceased, as the residence of the 1[st] accused. Based on the information furnished by the 9[th] accused, scientific experts from Forensic Lab, Thrissur, inspected the premises and Crl.M.C.No.9134/2022 : 7 : collected blood stains, hair etc., from the bathroom, waste water pipe and AC indoor unit. The collected samples were sent for analysis. 8. The other crucial evidence relied on by the prosecution to establish the role of the accused is the evidence of CW4, who is the friend of the 1[st] and 2[nd] accused. It was he who introduced the 2[nd] accused to the 1[st] accused. He deposed that while he was suffering from the decease of Piles, the 1[st] accused took him to Mysore for treatment with a traditional healer of piles, and he recovered. He further stated that, during the end of the year 2020, the petitioner/2nd accused disclosed to him that the petitioner, along with the other accused, kidnapped the Shaba Shareef from Mysore, the said healer, and while attempting to extract the secret method of treatment from him, he succumbed to injuries, and later they disposed of his body. 9. CWs1, 2 and 3, the wife, grandson and daughter of the deceased Shaba Shareef, had identified the 2[nd] accused during the test identification parade conducted as the person who abducted the deceased from their house on 01.08.2019. The aforesaid aspect is also confessed by the petitioner herein. All these statements are mutually corroborative. CW41, the Manager Crl.M.C.No.9134/2022 : 8 : of Cherupushpam Lodge at Nilambur, identified the petitioner as the person who resided in the lodge on 08.10.2020. CW7 is the shopkeeper of one Zenith Store and identified the 2[nd] accused as the person who came to the shop on 09.10.2020 to purchase the materials used for chopping the deceased's body. The said witness also produced a duplicate bill for the purchase made in this regard. CW30 is the person who had stated that a tamarind wood log was produced by the 2[nd] accused, and according to the prosecution, this wooden log was used for chopping the body of the said Shaba Shareef. 10. CW6 is a native of Othayi, and his statement is to the effect that on 10.10.2020, while he was escorting a vehicle used for the transportation of sand, he found a car stopped in the middle of the bridge, and a bald-headed man came out of the said car and took out five or six plastic bags, untied the carry bags and poured something into the Chaliyar river. The specific case of the prosecution is that the place pointed out by the 1[st] accused as the place where the body was disposed of tallies with the statement of CW6. It is also the case of the prosecution that the forensic experts with the help of the Indian Navy, could collect human body bone from the spot and send it for chemical analysis. Crl.M.C.No.9134/2022 : 9 : 11. Thus, on going through the aforesaid aspects, it can be seen that there are materials produced by the prosecution for establishing the culpability and the overt acts of the petitioner herein and other accused. The specific role assigned to the petitioner is that he took part in abducting the deceased from Mysore, tortured him while he was kept under detention in the residence of the 1[st] accused, when the deceased succumbed to injuries, his body was removed from the place of confinement, after chopping it into pieces, packed in plastic bags and disposed of the same to the Chaliyar river from the Seethi Haji bridge. Thus in all the acts which constituted the offence, the specific role of the petitioner has been mentioned. Some witnesses specifically identified the petitioner as having committed various acts at various stages of the incident. 12. The contentions raised by the petitioner about the lack of materials establishing his culpability are to be considered in the light of the above aspects. The scope of application to quash the final report under Section 482 of Cr.P.C. is very much limited, and the same is well defined by various decisions rendered by the Hon’ble Supreme Court in this regard. As mentioned above, one of the crucial contentions raised by the learned counsel for the Crl.M.C.No.9134/2022 : 10 : petitioner relates to the failure to recover the body or parts of the body of the deceased and the materials to show that it was the said Shaba Shareef who was murdered. In response to the aforesaid contention, the learned Additional Public Prosecutor places reliance upon the decision rendered by the Hon’ble Supreme Court in **Prithipal Singh and others v. State of Punjab and another** [(2012) 1 SCC 10 and **Mani Kumar Thapa v. State of Sikkim** [(2002) 7 SCC 157]. In **Mani Kumar** ’s case cited supra, it was observed by the Hon’ble Supreme Court in paragraph 4 as follows: “ 4. ………….. It is a well-settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without a trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. (See **Sevaka Perumal v. State of T.N** .) Therefore, the argument that the prosecution case should be rejected in the absence of corpus delicti, cannot be accepted…………..” Crl.M.C.No.9134/2022 : 11 : 13. The aforesaid decision was followed in **Prithipal Singh** ’s case, and it was reiterated that it was not necessary that the dead body of the victim should be found and identified, i.e., a conviction for the offence of murder does not necessarily depend upon _corpus delicti_ being found. The corpus delicti in a murder case has two components – death as result and criminal agency of another as the means. Where there is direct proof of one, the other may be established by circumstantial evidence. Thus it is evident that, even if the body of the deceased could not be recovered, nothing would preclude the prosecution from establishing the death of the deceased by producing materials to show the circumstantial evidence indicating the death of the deceased. 14. Therefore, the failure to recover the body of the deceased, by itself cannot be a ground to hold that prosecution failed in making out a _prima facie_ case of murder against the accused persons. With regard to the manner in which the murder allegedly occurred, the prosecution has a specific case. In support of that case, the prosecution has also produced certain materials which would create a reasonable suspicion against the petitioner herein. The question whether the aforesaid evidence is adequate Crl.M.C.No.9134/2022 : 12 : or not, is not a matter which can be considered in a proceeding under Section 482 Cr.P.C. The power under Section 482 can be invoked only in those circumstances where, even if all the materials placed on record by the prosecution were accepted as true, no offences are made out. The aforesaid question was considered in detail by the Hon’ble Supreme Court in various decisions. In a celebrated case rendered by the Hon’ble Supreme Court in the **State of Haryana and others v. Ch.Bhajan Lal and others** [1992 KHC 600], in paragraph 104, the circumstances under which the powers under Section 482 Cr.P.C. for interfering with the criminal proceedings are specified, which reads as follows: “104. In the backdrop of the interpretation of the various relevant provisions of the Code under Chap.XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under S.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima Crl.M.C.No.9134/2022 : 13 : facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizhable offence but constitute only a non cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” ## 15. In **R.P. Kapur v. State of Punjab** [AIR 1960 SC 866] it was observed by the Hon’ble Supreme Court in the manner as follows: “………….It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to Crl.M.C.No.9134/2022 : 14 : secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint of the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the Crl.M.C.No.9134/2022 : 15 : accusation in question.” 16. In **Harzari Lal Gupta v. Rameswar Prasad** [AIR 1972 SC 484], it was observed by the Supreme Court that the question whether the evidence produced by the prosecution is adequate or not is not a matter which can be considered by the High Court while exercising its inherent powers. In **Saranya v. Bharathi and another** [2021 (8) SCC 583], it was observed by the Supreme Court that, at the stage of framing of charges, the court has to consider the material only with a view to finding out if there is a ground for “presuming” that the accused had committed the offence. It was observed by the Supreme Court that, at that stage, the High Court is not required to appreciate the evidence on record and consider the allegations on merits. 17. Thus, the principles laid down by the Hon'ble Supreme Court consistently are to the effect that, when there is a reasonable suspicion as to the commission of the offences by the accused, it is a matter to be decided during the course of trial and after appreciating the evidence let in by the prosecution. In this case, I have already discussed some of the materials available on record, which would establish a prima facie case as to the Crl.M.C.No.9134/2022 : 16 : petitioner's involvement in the commission of the crime. Some witnesses have specifically identified the petitioner as one of the culprits. Certain scientific materials are also available, and the results of certain scientific examinations are yet to come. In such circumstances, as there is a clear suspicion arising from all the above materials, as to the involvement of the petitioner in the commission of the crime, it is not at all justifiable for this Court to entertain this Crl. M.C. by interfering in the proceedings now in progress against the petitioner. Since it is found that there is a _prima facie_ case against the petitioner, I do not find any prejudice being caused to the accused while denying the prayer for invocation of the inherent powers of this Court under Section 482 Cr.P.C. Even if this Court does not interfere with proceedings at this stage, all the contentions raised by the petitioner would be available to him during the course of the trial, and it could be possible for him to challenge the veracity of the prosecution's version and the evidence adduced by them in support of such version. On the other hand, if interference is made at this stage, that would forever close the doors for the prosecution to establish the case by adducing evidence in support of their contentions. When considering the serious nature of the offences alleged Crl.M.C.No.9134/2022 : 17 : against the accused and the materials collected by the prosecution after a detailed investigation conducted by them, I am of the firm view that denial of such an opportunity to the prosecution would not be in the best interest of justice. In such circumstances, I do not find any merit in this Crl.M.C. Accordingly, this Crl.M.C. is dismissed without prejudice to the right of the petitioner to raise all the aforesaid contentions before the trial court at the appropriate stage. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd Crl.M.C.No.9134/2022 : 18 : ## **APPENDIX OF CRL.MC 9134/2022** ## PETITIONER ANNEXURES |Annexure A1|TRUE COPY OF THE ORDER REJECTING THE| |---|---| ||BAIL APPLICATION IN| ||CRIMINAL.M.C.942/2022 DATED 19-9-2022| |Annexure A2|COPY OF THE PETITION DATED 16-8-2022| ||FILED BEFORE THE NILAMBUR MAGISTRATE| ||COURT ON BEHALF OF THE 1ST ACCUSED IN| ||C.P.41/2022| |Annexure A3|TRUE COPY OF THE SEIZURE MAHAZAR DATED| ||30.04.2022 PREPARED BY SI OF POLICE| ||NILAMBUR| |Annexure A4|TRUE COPY OF THE FIR IN CRIME NO.| ||280/2022 OF NILAMBUR POLICE STATION| ||DATED 10- 5-2022| |Annexure A5|TRUE COPY OF THE FIR IN CRIME NO.| ||255/2022 OF NILAMBUR POLICE STATION| ||DATED 25- 4-2022| |Annexure A6|TRUE COPY OF THE SEEN MAHAZAR PREPARED| ||BY THE POLICE IN CRIME NO.280/2022 OF| ||NILAMBUR POLICE STATION DATED 13-5-2022| |Annexure A7|TRUE COPY OF THE ADDITIONAL SEEN| ||MAHAZAR PREPARED BY THE NILAMBUR| ||POLICE, IN CRIME NO.280/2022 DATED 14-| ||5-2022| |Annexure A8|TRUE COPY OF THE FINAL CHARGE SUBMITTED| ||BY THE POLICE IN SC NO.1370/2022 ON THE| ||FILES SESSIONS COURT, MANJERI DT.4-8-| ||2022| |Annexure A9|TRUE COPY OF THE MEMO OF EVIDENCES| ||(WITNESSES 1 TO 109)|