ARYAKKAMDY SUKUMARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) All the four appellants (accused Nos. 1 and 3 to 5 in Sessions Case No. 151 of 1997 on the file of the Sessions Court, Thalassery), were sentenced to death for offence punishable under Section 302 read with Section 149 of the Indian Penal Code. They were also sentenced to undergo (1) rigorous imprisonment for six months each under Section 143 IPC being members of an unlawful assembly; (2) rigorous imprisonment for two years each under Section 147, IPC for rioting; (3) rigorous imprisonment for three years each under Section 148, IPC for rioting armed with deadly weapons and (4) rigorous imprisonment for one month each under Section 341, IPC for wrongful restraint. Allegation of the prosecution was that due to political rivalry all the five accused together formed an unlawful assembly, and in pursuance of the common object, they killed a 38 year old person called Panniyannur Chandran in the broad day light at 4.45 p.m. on 25-5-1996 in a pathway near to his house while he was coming from the railway station along with his wife in his motor cycle after seeing offf his brother-in-law at the railway station. Even though five accused were charge-sheeted, second accused was absconding and his case was split up and only four accused, the present appellants, faced trial. Since the appellants were sentenced to death, the matter was referred to this Court for confirmation under Section 366(1) of the Code of Criminal Procedure. First accused filed Crl. Appeal No. 214 of 2005 and accused Nos. 3 to 5 filed Crl. Appeal No. 159 of 2005. Death Sentence Reference and appeals were heard together. A1 was represented by Advocate Mr. Surendra Singh and A2 to A4 were by Senior Advocate Mr. Janardhana Kurup. Shri Sujith Mathew Jose and Smt. Noorjie Noushad, Public Prosecutors, appeared for the State.

(2.) Prosecution mainly relied evidence of PWs-1, 2 and 3, eye-witnesses, evidence of PWs-4 and 7 who came immediately after the incident and who took them to the hospital, dying declaration, recovery of two weapons used by Al on the basis of the disclosure statement given by him, existence of motive etc. Both sides argued much regarding the defects in the investigation. According to the appellants, various evidence were popped up and the case was made against them and actual assailants are not found out and merely because they were Marxist party activists, they were arrested and charge was made against them. It is the case of the prosecution that it is a political crime. The deceased was a BJP activist, a former candidate in the General Election in Permgalam Constituency and District President of the BJP. During the period in question, the Government was led by LDF under the leadership of Marxist party and the defects in the investigation were purposefully made. Criminal justice should not be made the casualty for the illegalities committed by investigating officers. The question is whether the Court is convinced with the evidence available in a case. If there is clear and cogent evidence, irregularities, or even illegalities, in investigation are of no consequence as held by the Apex Court in Bikau Pandey v. State of Bihar AIR 2004 SC 997 and State of Rajasthan v. Kishore . Our endeavour is to find out whether there is clear evidence in a case against all the accused despite the defects in the investigation. The court has to be satisfied that the prosecution case is substantially true and guilt of the accused is proved beyond all reasonable doubt. Presumption of innocence continue till appellate court is satisfied that the accused are guilty of the charges levelled against them. We are aware of the Supreme Court dictum that even if the crime is committed in a most cruel and gruesome manner, Court should not be biased unconsciously and involuntarily on the accusation. In spite of the shocking nature of the crime, there should be dispassionate judicial consideration of evidence in a cool and detached manner. (Mundrika Mahto v. State of Bihar 2002 AIR SCW 2093 : 2002 Cri LJ 2810). It was argued that many observations of the trial Court would indicate that it analysed the evidence in a biased manner. Since it is a referred trial, we are considering the evidence ourselves first and then we are considering whether conviction is possible on the basis of admissible evidence adduced in this case.

(3.) PW-1, wife of the deceased, deposed that the marriage was on 14-4-1990 and her husband's house is at Panniyannoor and he is an LIC agent. They have two children, aged 5 and 3. She also deposed that her husband was killed by Marxist people on 25-5-1996 at about 4.45 p.m. Her husband was a BJP candidate in the General Election in the Peringalam Assembly Constituency. He got only 10,000 votes. There was a threat that he will be killed.