RADHAKRISHNAN NAIR HARIPRASAD KRISHNAKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) These three appeals under Section 2 (a) of the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act read with Section 379 Criminal Procedure Code are filed against the judgment of the High court of Kerala. Original Accused 2 to 5 and 7 to 15 are the appellants herein. Altogether 15 accused were tried by the Sessions Judge, Alleppey for offences punishable under S. 143, 147, 148, 149, 286, 452, 323, 324, 326, 436 and 302 Indian Penal Code. A-1 was murdered sometime during the pendency of the trial and the remaining accused were acquitted by the trial court. The State of Kerala filed an appeal against the acquittal in the High court. During the pendency of the appeal A-6 died and the High court convicted the remaining accused, who are the appellants before us, and sentenced them to undergo imprisonment for life under S. 302/149 Indian Penal Code and for other periods varying from six months to five years under the other charges. Hence the present appeals. The prosecution case is as follows.

(2.) The accused are said to be the sympathisers of the RSS having political animosity towards the sympathisers of Marxist Party to which the injured witnesses and the deceased belong. One RSS sympathiser by name Sivan was alleged to have been done to death by the Marxists earlier. This aggravated the strained feelings. On the night of 9/11/1981 the accused having formed themselves into an unlawful assembly armed with deadly weapons like choppers, swords, sticks, axes, lathis and iron rods unleashed terror in Thekkekara at Mankombu in Kuttanad and committed a series of criminal acts. At about 1 o'clock in the night, the accused in the first instance approached the house-cum-tea shop of Public Witness 4, cut open the fence of the house and A-1 to A-5 entered the house and thereby committed the offence of house-breaking. A-2 inflicted a cut injury with a chopper on the head of Public Witness 4. A-3 and A-5 inflicted several injuries on Public Witness 5 and when Public Witness 6, wife of Public Witness 4, intervened, she was kicked and pushed down. Thereafter A-8 poured petrol over the roof and set fire to the tea shop. Then they proceeded to the bunk shop of Thankappan and A-8 set fire to that shop. Thereafter they proceeded to Kuttan Taluk committee office of CPI (M) , trespassed into the compound, broke open the front door and some of them entered the building, and damaged the furniture and other articles. A-8 poured petrol and set fire. Thereafter the accused proceeded to the east along the road and reached the house of Thankappan and surrounded the house. A-8 poured petrol and set fire to the house. Thankappan woke up and extinguished the fire by pouring water. Public Witness 7, his wife, got out of the house withthe children and she cried out to her husband that the assailants were RSS men. When Thankappan got out of the house. A-1 inflicted cut injury with a chopper on his right shoulder. The deceased rushed to the east and was chased by all the accused. The deceased then rushed to the south and stepped into the courtyard of Public Witness 34. But the accused reached the place and A-4 inflicted a cut injury on the neck with an axe. The deceased fell down. A-1, A-2, A-3 and A-5 inflicted a number of injuries with choppers and swords. Thereafter A-1 cut and severed the head of the deceased and took up the head of the deceased raising war cries and proceeded along the road. On the way they also came to the tea shop of Public Witness 11 and set fire to the same. Likewise they damaged the house of Public Witness 10. Thereafter the accused went to the local committee office of CPI (M) and set fire to the furniture. After that they proceeded towards the east raising cries and placed the severed head of the deceased on the bridge. Then they proceeded along the eastern side of the bridge and reached the boat shed belonging to the union and they set fire to the same causing a loss of Rs. 1 lakh. Public Witness 39, SI of Police, attached to Pulincunnu Police Station on getting information about the atrocities proceeded to the place of incident with a party and recorded Ex. P-1, the statement of Public Witness 1 and registered the crime and issued the FIR. Public Witness 40, DSP, took up the investigation, held the inquest over the dead body and the severed head and visited various places where the damage had been caused, and prepared mahazars in respect of the abovesaid places of occurrence. Public Witness 29, the Doctor, examined the injured witnesses and issued the wound certificates in respect of the injuries found on them. Public Witness 31, Assistant Professor of Forensic Medicines conducted the post-mortem on the body of the accused and the severed head and issued the post-mortem certificate. The accused were arrested on various dates and after completion of the investigation, the charge-sheet was filed.

(3.) The prosecution examined as many as 41 witnesses. The accused pleaded not guilty. During the trial PWs 4, 5, 6, 9, 12, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 27, 34, 37 and 38 turned hostile and they did not support the prosecution case. Then there remained PWs 1 to 3, 7, 8, 10, 11 and 13 who supported the prosecution story and who are admittedly interested and inimical witnesses. The trial court in the first instance discussed the evidence of Public Witness 1 in detail and pointed out various infirmities. According to Public Witness 1, he gave the report Ex. P-1 at about 4 a. m. on 10/11/1981 and admittedly it reached the Magistrate only on 12/11/1981 and the trial court rightly pointed out that this delay renders Ex. P-1 suspicious in the absence of any explanation. With that background the trial court proceeded further to discuss the evidence of the remaining eyewitnesses. PWs 1 to 3 formed one group. Public Witness 1 had merely identified some of the accused in the group but did not attribute any overt acts to anyone of them. He merely stated that there could be 16 to 18 persons. The trial court also pointed various inconsistencies between the version in Ex. P-l and his present evidence. The version given by Public Witness 2 is found to be contrary to the one given by Public Witness 1. The trial court pointed out numerous inconsistencies in the evidence of Public Witness 3 and observed that it was extremely difficult to believe him. Public Witness 7 was the wife of the unfortunate deceased Thankappan but her version is inconsistent with the one given by Public Witness 1 in respect of movements of some of the accused. She has not, however, witnessed the attack on the deceased fully. She named as many as 9accused. She was cross-examined at length as to how she could come to know that. The trial court after examining many admissions made by her held that her evidence is totally false when she deposed that she recognised these accused persons and noted that she is an interested witness and she fell in line with the version given by Public Witness 1. We may point out that the trial court has pointed out a number of inconsistencies and infirmities in her evidence which totally affect its veracity. Coming to the murder of Thankappan, the prosecution could rely only on the evidence of Public Witness 8. The trial court noted that not a single neighbour has been cited to prove any part of the occurrence except Public Witness 8. Public Witness 8 deposed that he was a toddy-tapper and that on the night of 9/11/1981 he woke up hearing a loud cry. He came out and he saw a man running ahead. Then he saw the occurrence namely the attack on the deceased by A-1 to A-5 and he could not recognise the others. He claimed to have seen the entire incident in the light of the burning electric light on the northern side of the house belonging to Public Witness 34. Admittedly Public Witness 8 is also an interested witness. But for the presence of the light, he could not have witnessed the occurrence and the presence of light itself became highly suspicious because Public Witness 34, Indra, the owner of the house did not support the prosecution case regarding the presence of the light and she stated that during the night time that light in the courtyard would be switched off. That apart there are some tell-tale admissions in the evidence of Public Witness 8 which throw any amount of doubt about the electric light burning at the relevant time. Several other discrepancies also have been pointed out in his evidence. Yet another grave infirmity in his evidence is that he committed mistake completely in identifying the accused in the court. The prosecution, however, contended before the trial court that Public Witness 8 was afraid of the accused and in making wrong identification he colluded with the defence. In view of this serious defects in his evidence the trial court held him to be a false witness. In this view of the matter the trial court acquitted all the accused.