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Criminal Appeal No. 839 of 2006 with Criminal Appeal No. 840 of 2006. Case: 1. Myladimmal Surendran, 2. Arayakkamdy Sukumaran @ Suku and Ors. Vs State of Kerala. Supreme Court (India)

Judgment Cited authorities 1 Cited in 2 Precedent Map Related
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Case NumberCriminal Appeal No. 839 of 2006 with Criminal Appeal No. 840 of 2006
JudgesB. Sudershan Reddy and Surinder Singh Nijjar, JJ.
IssueIndian Penal Code - Sections 143, 147, 148, 341, 302, 149; Evidence Act - Section 27
CitationAIR 2010 SC 3281
Judgement DateSeptember 01, 2010
CourtSupreme Court (India)

Judgment:

Surinder Singh Nijjar, J.

  1. These appeals have been filed against the common judgment passed by the High Court of Kerala, at Ernakulam in Criminal Appeal Nos. 214 and 159 of 2005 filed by the accused/appellant no.1 and accused/appellant no.3 to accused/appellant no.5 respectively whereby the High Court was pleased to confirm the conviction of the accused/appellants under Sections 143, 147, 148, 341, 302 read with 149 IPC, but partly allowed their appeals to the extent that the sentence of death imposed upon by the Sessions Court was converted to imprisonment for life.

  2. Both the trial court and the High Court have concluded that the deceased was killed due to political vendetta. The conclusions reached by the two Courts do not seem to be without basis. The High Court has noticed that there were many political murders and other crimes in Kannur district of Kerala at the time when Sri Panniyannur Chandran was murdered. He was murdered to avenge the murder of an activist of the Communist Party of India (Marxist), Mamman Vasu within the limits of Checkli Police Station. At that time, the deceased, Sri Panniyannur Chandran was the Secretary of the District Committee of BJP. Following the murder of Mamman Vasu, death threats were often received by the deceased. He was thought to be the brain behind the murder of the CPM activist. It was said that such threats were made even in the Peace Committee Meetings that followed the killing of Mamman Vasu. The State Special Branch officials being satisfied about the possible threat to the life of deceased had conveyed the information to the local police station of the area in which the deceased resided. Consequently, a Police Picket was set up near the house of the deceased to provide security. Tragically, it appears that in spite of all the security measures, the assailants had their way. He was murdered on 25.5.1996 in broad day light, in front of his wife. He was literally hacked to death, by trained killers.

  3. We may now notice the facts.

  4. On 25.5.1996, between 2:30 and 3:00 p.m. Sri Panniyannur Chandran accompanied by his wife, Arundhuti (hereinafter referred to as PW1) went to the Thalassery Railway Station riding a motor bike to see off his brother-in-law to Madras. On their return, they met the father of the deceased, who told them that he was going to the ration shop to buy rice. On their way back, when they had almost reached home, they found that the road had been blocked by Arayakkamdy Sukumaran @ Suku (hereinafter referred to as A1), Thayyullathil Thazhekuniyil Pavithran @ Pavi (hereinafter referred to as A2), Myladimmal Surendran (hereinafter referred to as A3), Kaithayullaparambath Preman (hereinafter referred to as A4) and Kunhiparambath Purushothaman @ Purushu (hereinafter referred to as A5). They were all armed with deadly weapons. Though the deceased attempted to avoid them, he was unable to do so, as the engine of the motor cycle went dead. The wife jumped off the motorcycle just before it fell. She ran away. Then from a distance she saw that A1 assaulted the deceased with a billhook which injured his left hand. The deceased started running towards his house hotly chased by the accused armed with deadly weapons. The wife ran to the place where they had met CW1. But hearing her screams, CW1 was already coming towards the trouble spot. On meeting CW1, she informed him about the incident. She then ran to the house of her husband thinking that the deceased must have reached home. Finding that her husband was not in the house, she again ran back, with the sister of the deceased, to the place of assault. She found the deceased lying with his head on the lap of his father. According to the wife, the incident occurred at about 4:45 p.m. At that time, she did not know the names of the accused. She was told the names by CW1 after three days.

  5. The Policemen on picket duty reached the spot and took Panniyannur Chandran to the general hospital where he breathed his last at 5:50 p.m. The father of the deceased reported the incident which was recorded by the C.I. of Police, Thalassery. The investigation was carried on for sometime by the local Police but eventually for efficient investigation the case was transferred to the Crime Branch. PW17, a Detective Inspector of the Crime Branch conducted the investigation from that point onwards. In the mean time A1 to A5 surrendered before the Addl. C.J.M, Thalassery and were remanded to custody. After investigation, PW17 submitted final report against A1 to A5 in the court of Addl. CJM, Thalassery for offences under Sections 143, 147, 148, 341 and 302 read with 149 IPC. At that stage A2 absconded. Therefore the case against A2 was split up and the case against A1, A3 to A5 was committed to the Court of Sessions, Thalassery. Since the accused pleaded not guilty they were duly put on trial.

  6. By order dated 12.11.2004, the Sessions Court convicted the appellants herein for the offences punishable under Sections 143, 147, 148, 341 and 302 IPC. For the offences punishable under the aforesaid Sections (except Section 302 IPC) they were sentenced to undergo rigorous imprisonment for different periods, varying from two months to three years. They were, however, sentenced to death for the offence under Section 302, IPC.

  7. Challenging the aforesaid judgment, A1 filed Criminal Appeal No. 214 of 2005 and A3 to A5 filed Criminal Appeal No. 159 of 2005 before the High Court of Kerala at Ernakulam. The High Court vide order dated 16.11.2005 confirmed the conviction of the accused under Section 302 read with 149 IPC but the sentence of death was converted to imprisonment for life. Aggrieved by the said judgment, A1 filed Crl. Appeal No. 840 of 2006 and A3 to A5 filed Crl. Appeal No. 839 of 2006 before this Court.

  8. We have heard Mr. Surinder Singh, learned Senior Advocate for the appellants and Mr. R. Satish on behalf of the respondent State.

  9. After taking us through the relevant materials relied on by the prosecution, Mr. Surinder Singh learned Senior Advocate raised the following contentions:

    (i) Ext P1, the First information Statement was given by the father of the deceased (CW1), who died one year before trial. The FIS has been wrongly used as a substantial piece of evidence to corroborate the evidence given by the prosecution witnesses. In the First Information Statement, he had stated that the incident occurred while his son was returning from the Railway Station together with his wife (PW1) after seeing off his brother in law. He had further stated that earlier at about 3 p.m., three persons had come to his house and enquired about whereabouts of the deceased. He had told them that his son had gone to the railway station and would be coming back by about 4:30 p.m. He had told them to wait for his son in the house. He then left for the Ration Shop to buy rice. On his way to the Ration Shop, he had met his son returning on his motorcycle with his wife. On enquiry from his son, he had told him that he was going to buy rice from the Ration Shop. Soon thereafter, he heard the cries of his daughter-in-law. He rushed back to the place where he had met his son. There he saw Arayakkamdy Sukumaran @ Suku and others assaulting the deceased with deadly weapons. He stated that the assault on his son was due to political rivalry.

    (ii) The FIR is not the correct version of the assault and the death of the victim. The FIS is the earliest version of the incident. The prosecution cannot thereafter give a different version. In the FIS the name of the main culprit is given as "Suku of Arayakkamdy House". The name of the first accused in the trial is Suku (short for Sukumaran).

    (iii) The FIR was not sent to the Magistrate forthwith, as is evident from the seal of the court of Magistrate, which is dated 29th May. Surprisingly, the Magistrate has initialed the FIR on 26.5.1996.

    (iv) It is then submitted that even if the delay in recording the FIR is not fatal, the High Court ought to have scrutinized the evidence meticulously.

    (v) The recovery of the MOS itself was not acceptable under Section 27 of the Evidence Act.

    (vi) The dying declaration that "Suku and others" had committed the crime is unreliable. With so many injuries, it is impossible that the victim would give a coherent answer to any question. In fact, PW7 at the Police Picket stated that the name uttered by the victim was not clear to him.

    (vii) The learned senior counsel submitted that there was suspicion regarding the identity of the accused as no test identification parade was conducted. PW1...

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