Krishnakumar vs State Of Kerala

Ziyad Rahman A.A., J

The petitioner is the 9th accused in Crime No.489/2006 of Cherpulassery Police Station, Palakkad District which is now pending as L.P.No.64/2014 on the file of the Judicial Magistrate of First Class-1, Ottappalam.

The aforesaid case was registered against the petitioner and ten others for the offences punishable under Sections 120(B),143,147,148,449 and 302 r/w. Section 149 of the Indian Penal Code (IPC), Section 5 of the Explosive Substances Act and Section 20 of the Arms Act, 1959.

The prosecution case is as follows: Ravi (the deceased in the case) had murdered the petitioner's parents. To seek revenge, the petitioner herein (Accused No.9) hired the other accused for a consideration of Rs.3,00,000/-(Rupees Three Lakhs only) to murder Ravi. Consequently, Accused Nos.1 to 8, 10 and 11 assembled under the leadership of Accused No.2 at Edamattom beach, near the house of Accused No.1 and planned to kill Ravi. In furtherance of the plan hatched out, on 21.12.2006, Accused Nos.1 to 8, 10 and 11 formed themselves into an unlawful assembly and proceeded together in two vehicles (a white Maruti car and a motorcycle) armed with lethal weapons such as axe, swords and country bomb and the accused persons arrived at the destination at about 2.30 A.M. Accused Nos.4 and 8 guarded the vehicles, while Accused Nos.6,7 and 10 guarded the house. Accused Nos.1,2,3,5, and 11 moved towards the house armed with deadly weapons. Accused Nos.2 and 3 destroyed the front door lock and all of them criminally trespassed into the house. Thereafter, Accused No.3 smashed the door of the bedroom in which Ravi was sleeping, after which all the accused entered the room. Accused No.3 slashed at Ravi’s neck with an axe, and after that, Accused Nos.1,2,5 and 11 inflicted multiple cut injuries on different parts of his body and thereby murdered him.

Annexure-A is the F.I.S, and Annexure-B is the final report submitted by the police. Initially, the Judicial First Class Magistrate Court, Ottappalam, has taken cognizance of Annexure-B final report as C.P.No.87/2012. The accused Nos.2,3,6 to, 8, 10 and 11 appeared, and the other accused persons absconded. Thereafter, after completing the legal formalities, the proceedings against the aforesaid accused were committed for trial to the Sessions Court, Palakkad, where it was taken into the file as S.C.No.126/2013. Later, the case against the accused Nos.1, 4, 5 and 9 was split up and refiled as C.P.No.22/2013. The presence of the accused Nos.1 and 5 was secured, and proceedings against them were committed to the Sessions Court, where it was taken into the file as S.C.No.415/2013. Later, the 4th accused also appeared and thereupon, the proceedings against him were also committed to the Sessions Court, and it was numbered as S.C.No.515/2015. Subsequently, S.C.No.415/2013 and 518/2015 were clubbed together and the accused therein were added as additional accused in S.C.No.126/2013, assigning the same rank to them as in the final report.

The trial was conducted in S.C.No.126/2013 against all the accused persons except the petitioner. In the said case, Annexure-C judgment was passed by the learned Sessions Judge, by which all of them were found not guilty and were acquitted accordingly. All along, the petitioner was absconding and his case was split up, and the same is now pending as L.P.No.64/2014 before the Judicial First Class Magistrate Court, Ottappalam. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-B final report.

Heard Sri. M. Ravikrishnan, the learned counsel for the petitioner and Sri. Hrithik, the learned Public Prosecutor for the State.

The petitioner mainly relies on the findings and observations in Annexure-C judgment. According to the petitioner, consequent to the order of acquittal of all the other accused, the prosecution against the petitioner herein is not at all warranted as the substratum of the prosecution case itself is lost. Reliance was also placed on Moosa v. Sub Inspector of Police [2006(1)KLT 552], a judgment rendered by a Full Bench of this Court.

On the other hand, the learned Public Prosecutor would strongly oppose the aforesaid contentions. It is pointed out that the petitioner is a person who was absconding right from the inception and he did not appear before the court despite having been issued with a lookout notice. The learned Public Prosecutor relies on the observations made in Moosa’s case (supra), wherein it was observed that it is unnecessary to invoke the power under Section 482 Cr.PC when a person seeking the said relief is a fugitive from justice having absconded or jumped bail without sufficient reason. In such circumstances, it was pointed out by the learned Public Prosecutor that this Court has to take note of the cleanliness/ uncleanliness of the hands of the seeker while exercising the jurisdiction, as observed in Moosa’s case (supra).

I have carefully gone through the contents of Annexure-A final report and the observations made in Annexure-C judgment. The specific case of the prosecution is that the deceased Ravi was the murderer of the parents of the petitioner herein. The petitioner had, to wreak vengeance on the said Ravi entered into a criminal conspiracy with the other accused and offered an amount of Rs.3 lakhs to murder Ravi. The acts that resulted in the death of the said Ravi were a consequence of the implementation of the plan jointly devised by the petitioner and the other accused.

The aforesaid allegation raised by the prosecution was explicitly considered by the learned Sessions Judge in paragraph 50 of Annexure-C judgment. It was specifically observed that, even though the specific case of the prosecution that the deceased Ravi committed the murder of two persons who are the parents of the petitioner herein, they did not produce any documents regarding the double murder case in which deceased Ravi was involved. It was also found that the identity of the petitioner herein as the son of the persons who were allegedly murdered at the hands of the deceased Ravi was also not proved by adducing any evidence. Even though a specific case was put forward by the prosecution to the effect that the petitioner gave an amount of Rs.3 lakhs as consideration to the other accused for committing the murder of Ravi, no evidence was produced to prove the said aspect. It is observed explicitly by the learned Sessions Judge that any evidence indicating the meeting of minds of the petitioner with the other accused persons was not adduced by the prosecution. It was observed that there is a complete lack of evidence to prove any nexus between the petitioner and the other accused.

Apart from the above, even against the accused persons who faced trial in Annexure-C judgment, even though all of them allegedly participated physically in the commission of the crime, no evidence could be adduced by the prosecution to substantiate the allegations. No eyewitnesses were examined to prove their complicity, and the prosecution relied only on circumstantial evidence. The learned Sessions Judge, after meticulously analysing the materials produced by the prosecution, concluded that the chain of events to substantiate the circumstantial evidence could not be completed by the prosecution by adducing proper evidence. Even though one of the crucial pieces of evidence relied on was the recovery of the weapons used for the commission of the offence, based on a statement of the 4th accused under Section 27 of the Evidence Act, the learned Sessions Judge found that the said evidence is not reliable. The main reason for arriving at the said conclusion was that as per the prosecution case the concealment of the weapons was made by the 2nd accused. In contrast, the recovery was affected based on the statement of the 4th accused. It was also found that to establish the offence under Section 120B of IPC, the prosecution did not adduce any evidence. Thus, when all the aforesaid findings and observations made by the learned Sessions Judge are taken into consideration, it can be seen that the substratum of the case itself is lost. The specific case of the prosecution is that the petitioner had arranged to murder the deceased by entrusting the said task to the other accused. The learned Sessions Judge concluded that the prosecution failed to establish that the accused who faced trial were the persons who committed the offences. Even though it was alleged that the petitioner gave an amount of Rs.3 lakhs for committing the murder, that was also not proved.

Apparently, the petitioner was sought to be implicated mainly with the aid of Section 120B. However, there is no evidence remotely suggesting the petitioner's meeting with the other accused persons. Thus, it is evident that the prosecution miserably failed in establishing the prosecution case as such. Therefore, a careful scrutiny of findings and observations in Annexure-C judgment would indicate that the same  will have the impact of   destroying the prosecution case in   its   entirety.   Therefore, no   fruitful purpose would be served in allowing the continuation of the prosecution against the petitioner.

The learned Public Prosecutor would seriously oppose the invocation of the powers of this Court under Section 482 of Cr.PC by placing reliance upon the observations of Moosa’s case (supra). It is true that, in paragraph 53(VIII), it is observed by this Court as follows:

“53 (viii) : While considering the prayer for invocation of the extraordinary inherent jurisdiction to serve the ends of justice, it is perfectly permissible for the court to consider the bona fides - the cleanliness of the hands of the seeker. If he is a fugitive from justice having absconded or jumped bail without sufficient reason or having waited for manipulation of hostility of witnesses, such improper conduct would certainly be a justifiable reason for the court to refuse to invoke its powers. Under Section 482 of the Code of Criminal Procedure.”

This Court has laid down the guidelines that should be followed in the said judgment while considering the prayer for invocation of the extra-ordinary jurisdiction to secure justice. It is true that, one of the relevant aspects to be taken note of is the bonafides of the petitioner and while considering the same, the question whether he is a fugitive, is also a relevant aspect. I had considered the observations made by the Full Bench of this Court as extracted above. The crucial aspect to be noticed in this case is that the petitioner is not named even in the F.I. Statement. There is indeed a statement that after committing the murder, one of the accused contacted the police over the phone and stated that they had murdered the accused in Panamanna double murder case. The case of the prosecution is that the persons who were murdered in the Paramanna double murder case were the parents of Krishnakumar, who is the petitioner herein. However, it is discernible from the records that the prosecution did not produce any documents to show that the person referred to in the F.I.S. is the petitioner herein. To be precise, it is also not proved that the parents of the petitioner herein were the persons who were murdered at the hands of the deceased. It is also discernible from the records that, all along, the petitioner was abroad. When the prosecution miserably failed in adducing any evidence, even suggesting any remote chance for holding the petitioner guilty of the offence, the purpose of the further prosecution itself is defeated. As the scope of conviction is almost nil, there is no meaning in continuing the prosecution. In such circumstances, compelling the petitioner to surrender before the court of law and to make him undergo a trial, the outcome of which is almost inevitable, is an unnecessary exercise. Moreover, the observations made in Moosa’s case (supra)do not lay down a proposition that in all the cases where the accused is absconding, this Court should decline the invocation of the powers under Section 482 of the Cr.PC. On the other hand, what is observed therein is that the bonafides of the petitioner is a relevant circumstance which has to be considered to decide whether the extraordinary power is to be invoked or not to favour such a petitioner. I have specifically considered the merits of this case in the light of the abovementioned principles. Even after carefully scrutinizing all the materials produced by the prosecution, the irresistible conclusion that comes to mind is that further prosecution against the petitioner is a futile exercise and, therefore any direction compelling the petitioner to surrender before the court of law is unwarranted. In such circumstances, I am inclined to invoke the jurisdiction of this Court under Section 482 of the Cr.P.C in favour of the petitioner.

In the result, this Crl.M.C. is allowed and Annexure-B final report submitted in Crime No.489/2006 of Cherpulassery police station and all further proceedings pursuant thereto, including the proceeding in LP No.64/2014 on the file of the Judicial First Class Magistrate Court-1, Ottappalam as against the petitioner herein are hereby quashed.