Crl. A. No. 825 of 2012 (C). Case: Mottammal Shaji and Ors. Vs State of Kerala. High Court of Kerala (India)

Case NumberCrl. A. No. 825 of 2012 (C)
CounselFor Appellant: P.S. Sreedharan Pillai, T.K. Sandeep, Arjun Sreedhar and Arun Krishna Dhan, Advs. and For Respondents: S.U. Nazar, Public Prosecutor
JudgesP.R. Ramachandra Menon and A. Hariprasad, JJ.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 125, 154, 154(1), 161, 162, 162(1), 311; Indian Evidence Act, 1872 - Sections 118, 145, 25, 26, 27; Indian Penal Code 1860, (IPC) - Sections 143, 147, 149, 302, 449
Judgement DateFebruary 06, 2017
CourtHigh Court of Kerala (India)


A. Hariprasad, J.

  1. Recurring overt acts by members of certain political parties at some parts of the State, especially in some northern districts, eloquently disseminate a message that human lives are less worthier than a political ideology. Annihilation of political opponents has become an order of the day, ignoring the fact that divergent political ideologies are natural in a democratic polity with a multiparty system. Besides, the proponents of the philosophy forget the reality that an ideology, worth its name, should exist for the upliftment, welfare and wellbeing of mankind. Political killings by using arms and explosives are acts of barbarity. This case unfolds yet another doleful story of a political savagery. In this brutal incident, the victim happened to be a worker of Communist Party of India (Marxit), commonly known as CPM and the alleged assailants are workers of Bharathiya Janatha Party (BJP) and Rashtriya Swayamsevak Sangh (RSS). Feud between these two sets of political outfits over a long period of time in Kannur district is a notorious reality.

  2. 27 accused persons were charged in this case with offences punishable under Sections 143, 147, 449 and 302 read with Section 149 of the Indian Penal Code, 1860 (in short, "IPC"). The 5th accused was found to be a juvenile at the time of incident and therefore his name was deleted from the array of accused as the court rightly found that he could not be tried along with other accused because of the embargo in the Juvenile Justice (Care and Protection of Children) Act, 2000. After an elaborate trial, the accused 1 to 4 were sentenced to undergo imprisonment for life for murder and appropriate punishments for other offences. They are in appeal before this Court.

  3. Heard Sri P.S. Sreedharan Pillai, learned counsel appearing for the accused 1, 2 and 4 and Sri K.K. Dheerendra Krishnan, learned counsel appearing for the 3rd accused. Sri S.U. Nazar, learned Senior Public Prosecutor is also heard on behalf of the prosecution.

  4. Brief facts necessary for appreciating the contentions are as follows: Appellants are RSS/BJP workers. They nurtured political hostility towards Areekkal Ashokan as he was an ardent supporter of CPM. With the common object of committing Ashokan's murder, appellants 1 to 4, along with other accused persons, formed themselves into an unlawful assembly on 05.12.2000, armed with deadly weapons like hatchet (wrongly shown as axe by the trial court), sword and chopper. At about 8.30 a.m. on that day, they criminally trespassed into the house of P.W. 5 Andy (brother of deceased Ashokan) and brutally assaulted Ashokan with lethal weapons, who had taken shelter in the house of P.W. 5 along with his four year old son, P.W. 4 Akshay. The assailants hacked Ashokan with hatchet, chopper and sword right in front of the small child (P.W. 4). The occurrence was in a room on the upstairs of P.W. 5's house. Thereafter the assailants fled. It is also the prosecution case that a couple of hours before the incident, the same assailants had attacked Ambuvintavida Babu at his house, which is adjacent to the houses of P.W. 5 and deceased Ashokan. Prosecution strongly contended that the political ill-will and hatred are motives for the killing.

  5. The defence case is total denial of any complicity of the appellants in the crime. According to them, deceased Ashokan had enemies in his private life. He had an affair with Kallamparambath Sathi, who resides in the neighbourhood. In that relationship, a child by name Midhunlal was born. Sathi's brother Vinodan is a CPM worker. Sathi's family members pressurised Ashokan to marry her for which he was not amenable. Thereafter Sathi claimed maintenance under Section 125 of the Code of Criminal Procedure, 1973 (in short, "Cr.PC") before the Magistrate having jurisdiction. Despite passing orders thereon, Ashokan failed to provide maintenance and on account of that, there were serious issues between the families. In connection with Ashokan's murder, Panoor Police initially arrested said Vinodan. Thereafter, he was released on account of political pressure exerted by the ruling Left Democratic Front (LDF) in which CPM is a major constituent. Innocent accused persons are falsely implicated due to political rivalry.

  6. Trial court heavily relied on the testimony of P.Ws. 1 to 3 to find that the appellants on the alleged day entered P.W. 5 Andy's house with deadly weapons and after some time a loud cry emanated from upstair of the house. Thereafter the accused went out with bloodstained weapons in their possession. P.W. 4 is cited as an eye witness to prove the incident. Prosecution greatly banked on the natural character of the testimony of these witnesses. Per contra, learned counsel for the appellants strongly contended that the trial court seriously erred in placing reliance on the undependable and untrustworthy evidence of the said witnesses to enter the convictions. Apart from the factual issues, legal questions are also raised regarding the legality and sustainability of the conviction pronounced on the appellants. We shall deal with the factual aspects initially.

  7. P.W. 1 Leela is wife of deceased Ashokan. She deposed that the incident was at about 8.45 a.m. on 05.12.2000. It is her insinuation that the appellants in this case, who are workers of RSS/BJP, committed the gruesome murder. It has come out in evidence that during the period there were lot of law and order issues in the area on account of political clashes. P.Ws. 1 to 3 deposed that they were residing together in the house of deceased Ashokan. P.W. 2 is the mother of P.W. 3. P.W. 2 is the sister-in-law of deceased Ashokan. P.W. 2's husband and their son Areekkal Rajesh (C.W. 9) were running a canteen at Bangalore during that time. All the material witnesses deposed that the incident happened on a harthal day and there was no vehicular movement through the road. It has come out in the testimony of P.W. 1 that C.W. 9 Areekkal Rajesh came two days before the incident and he was present in and around the scene of occurrence at the material time. At about 7 o' clock in the morning, P.W. 1 heard a hue and cry from western side of her house. As such incidents were usual occurrences in that area, she thought it might have been a political clash. Deposition of P.Ws. 1 to 3 coupled with Ext. P2, additional scene mahazar and Ext. P7 site plan would show that deceased Ashokan's house was in a higher level than that of P.W. 5 Andy. Both houses are situated adjacent to one another. On hearing the commotion, deceased Ashokan and children went to the house of P.W. 5. P.Ws. 1 to 3 and other children followed them shortly thereafter. P.W. 5 and his wife were present in their house. Thereafter P.W. 5 and wife went to the place from where the loud cry was heard. After sometime, it was informed that on account of a political issue Ambuvintavida Babu was attacked by the 1st appellant and inflicted injury on his leg. It was further informed that the assailants went away. P.Ws. 1 to 3 and other children returned home. Deceased Ashokan and P.W. 4 remained in the house of P.W. 5. Ashokan asked P.W. 1 to find out if any vehicle was available on the road so that he could move out of that area. P.W. 1 went in search of a vehicle. At that time, P.W. 5's son Baburaj and C.W. 18 Nanu's son Babu were present in the house. P.W. 1 went to the house of C.W. 18 Nanu and enquired about availability of a vehicle. She could not find any vehicle plying on the road. While she was returning home and reached near Valiyaparambathu Velayudhan's house, she saw a group of persons armed with deadly weapons rushing through an alley on the southern side. 1st appellant was holding a hatchet and others were also wielding weapons. They proceeded towards Ashokan's house. She was perturbed on seeing them with lethal weapons. She followed them at a distance. She heard noises, apparently of breaking doors and furniture. The assailants drove P.Ws. 2 and 3 and others away. She deposed that the appellants went to the house of P.W. 5. As stated earlier, the 1st accused was holding a hatchet, 2nd accused was holding a chopper and accused 3 and 4 were holding swords. Persons who accompanied them surrounded P.W. 5 Andy's house. When she reached near Andy's house, the persons standing as watch out, threatened her with dire consequences. P.Ws. 2 and 3 and others were driven towards the side of Nani's house. P.W. 1 stated that anybody approaching P.W. 5's house could be seen by the persons standing by the side of Nani's house. Accused persons entered the house. Huge sound of breaking door could be heard from the first floor followed by a distress cry of P.W. 4. P.W. 1 was sure that they had harmed deceased Ashokan. She fainted and fell down. This witness identified the appellants in the dock. She handed over bloodstained clothes worn by P.W. 4, which are marked as MOs 1 and 2. Those articles were recovered through Ext. P1 mahazar. She also identified MO3 hatchet said to have been held by the 1st appellant.

  8. In cross examination, it is brought out that Nani's house, shown in Ext. P7 site plan, situated on the eastern side of Ashokan's house and P.W. 5 Andy's house, is the closest one. Defence alleged that non-examination of Nani is a serious flaw. It has come out through the evidence of P.Ws. 1 to 3 that they and their family members are staunch supporters of CPM. Ambuvintavida Babu, who sustained injury at the hands of the same assailants, is also an ardent worker of CPM. P.W. 1 admitted that towards west of her house, Velayudhan Master's house is situated. In between her house and Velayudhan Master's house, there is an alley. Slightly on a lower level of Velayudhan Master's house, Nanu's (C.W. 18) house is situated. It is her deposition that if someone makes a shriek from her house, it could be heard both in Nani's and Velayudhan Master's houses. In this context, the learned defence counsel...

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