Das vs State Of Kerala on 28 March, 2022

[Cites 16, Cited by 0]

Kerala High Court

Das vs State Of Kerala on 28 March, 2022

Every crime is shocking, but the present one is macabre for reason of it being a random killing, allegedly to instill fear into society; for an organization of Dalits to thus establish themselves as formidable. A conspiracy is said to have been hatched to carry on random killings by the members of the association; the accused arraigned, which in the wee hours of 23.09.2009 led to the death of a morning walker and the near death of a tea shop owner.

2. The prosecution went to Court arraying A1 to A16. A15 died in the course of trial. A6 & A11 are still absconding. A1 & A3 to A5, A7, A10 & A16 were convicted and the other six were acquitted. The Crl.Appeal Nos.883, 462 & 882/2016 5 convicted accused were sentenced to undergo imprisonment for life for the offence punishable under S.302 r/w S.120B and S.149 IPC. They were also sentenced to undergo RI for a period of ten years each under S.307 r/w S.120B and S.149 IPC. Sentences were imposed under the other provisions charged, for lesser periods, all of which were to run concurrently. Fines were imposed under the various provisions and in default, the accused were sentenced to undergo simple imprisonment for various periods.

3. The appeals are filed by the accused and learned Senior Counsel Sri. Vijaya Bhanu argued on behalf of A5 & A10. Sri. C.Prathapchandran Pillai appeared for A1, A3, A4, A16 & A7. Sri. V.S.Sreejith, learned Senior Public Prosecutor, appears for the respondent State.

4. Sri.Vijaya Bhanu made submissions separately with respect to A5 & A10. At the outset, it was urged that the Dalit Human Rights Movement (for brevity, 'DHRM') is a registered organization and is not a Crl.Appeal Nos.883, 462 & 882/2016 6 proscribed one. The allegation is that the accused members of DHRM carried out the killing to establish themselves and thus instill fear in the minds of people. Though widespread search was made all over the State and many places, where the office of the organization was situated, nothing incriminating was recovered. There were no publications by the organization regarding the crime nor was the crime owned up. As far as A5 is concerned, it is argued that there is absolutely no evidence of the presence of A5 or his identification in the two scenes of crime. PW2, the injured, had only a fleeting glimpse of A5 when the alleged attack was perpetrated on him. Admittedly, A5 was not known to PW2 and it was the first time he came across that person. When the witness deposed categorically that he was shown A1 by the Police after his arrest, the identification in the dock cannot be believed. The witness had attempted to put forth a contention that an unofficial Test Identification Parade (TIP) was carried out when A5 was brought to his Crl.Appeal Nos.883, 462 & 882/2016 7 house; who was shown, along with five others for identification. The Investigating Officer (I.O), PW65, categorically denied the same. The prosecution had also attempted to prove A5's presence in the locality through other witnesses; all of whom are planted and untrustworthy.

5. PW7 is a person running an unauthorised taxi, who is said to have seen and identified A5 from a running motor bike. PW10's testimony is also to the effect that he identified A5 from a moving bike. The other incriminating circumstance against A5 is the recovery of MO1 bike. Looking at PW65's evidence, it is clear that A5 was arrested on 03.10.2009 and was taken into custody on 08.10.2009. A5 was taken to the scene of occurrence, to identify it as the crime scene; unacceptable in evidence. The recovery of the bike is on 14.10.2009 by Ext.P12, but the mahazar shows the confession having been made on 08.10.2009 and what is stated by the I.O in his deposition differs drastically from that of the confession in the mahazar. PW21 is the Crl.Appeal Nos.883, 462 & 882/2016 8 witness to Ext.P5 mahazar by which A5 is said to have identified the scene of occurrence. Interestingly, it was A13 who was identified as A5 by PW21. The testimonies of PW3, PW4, PW29 & PW65 categorically prove that there was a drizzle at the time when the two incidents had occurred. PW7 identifies the accused in a moving bike from inside his car. PW7 also stated in chief examination that the window panes of his car were tinted, but in re-examination the same was clarified as only on the top of the wind shield; very artificial.

6. As far as A10 is concerned, only PW9 identifies him, that too, from among a number of people inside his house, which gathering alone does not by itself prove the conspiracy. The recovery of a scooter by Ext.P10 does not lead to any incriminating circumstance. PW4's identification of A10, as having been seen in a moving bike, is unbelievable, especially since PW4 himself admits that it was dark. To buttress the contention regarding identity, learned Senior Counsel relied on the decisions reported in Mohanlal Crl.Appeal Nos.883, 462 & 882/2016 9 Gangaram Gehani V. State of Maharashtra (1982 (1) SCC

700), Ganpat Singh v. State of Rajastan (1997 (11) SCC

565), Raju & Others v. State of Maharashtra (AIR 1998 SC 275), Ravindra v. State of Maharashtra [AIR 1998 SC 3031] and OMA & Others V. State of Tamil Nadu (AIR 2013 SC 825).

7. Sri. Prathap Chandran Pillai points out that DHRM camps were held all over the State and there was nothing secretive about it. In fact it was the police who created a fear psychosis among the society alleging that the Dalits are up in arms. While pointing out that there is no convincing testimony or incriminating circumstance linking any of the accused to the murder, it is also argued that the identification of PW2 is unbelievable. PW2's shop was on a road proceeding from east to west on the southern side. The light in which PW2 is said to have identified A5 & A7 is in the junction to the east of PW2's shop. Only A5 alighted from the bike and the other two were sitting in the bike. They were clad in black and had donned hats Crl.Appeal Nos.883, 462 & 882/2016 10 covering the ears. PW2's residence-cum-shop had a slanting roof and he was engaged in preparing the stove when the three persons in the bike allegedly reached there. A5 alighted and asked him for tea which he said was not ready, but responded favorably to A5's request for cigarettes by attempting to open the shop. It was when he was opening the lock that A5 attacked PW2 and injured him grievously. The entire transaction took place when PW2 was engaged in filling the stove and later opening the lock. There was little possibility of a clear identification being made by PW2. While the light was at a distance, it is also alleged that the factum of the street light being a mercury light was never stated in the prior statements. PW50, the Officer who first conducted the investigation, visited the scene of occurrence, but did not take any statement from the persons available there. The FIS was taken delayed, at night from PW2. The identification of A10 & A7 by the other witnesses are improbable. A7 was arrested after three years and he was brought to Court Crl.Appeal Nos.883, 462 & 882/2016 11 repeatedly and the identification definitely was after seeing him at Court. As far as A3 is concerned, the only incriminating fact is the recovery of MO1 bike. The recovery itself is shaky and the specific case of A3, in his S.313 statement was that the police had lifted the bike from his house and kept it at the house of PW27. PW27 had turned hostile and his wife who is said to have been present at the house was not examined since the I.O thought that she was repeating falsehood; as deposed by the I.O himself. It is argued that the identification of A7 is not proved and as far as the other accused, there is nothing incriminating discovered. There is no corroboration available from the testimony of the witnesses. The recovery and identification also has not been proved and the accused are entitled to be acquitted.

8. Sri.V.S.Sreejith, the learned Public Prosecutor, reads out the evidence of PW65 to project the prosecution case. It is argued that to instill fear in the mind of the society and to thus establish their Crl.Appeal Nos.883, 462 & 882/2016 12 formidable presence, the organization in which the accused were members decided to carry out killing of innocent people. To that end, the accused conspired together and set out in three vehicles to various parts of the District. A5, A6 & A7 went in MO1 bike, A8 & A9 in another bike and A10 & A11 in MO7 scooter. The scooter of A10 & A11 toppled and they could not proceed. As far as A8 & A9 are concerned, they attempted an attack on PW8 which was foiled on PW8 raising an alarm. The learned Public Prosecutor refuted the arguments of the appellants regarding the light, the recovery and the conspiracy. PW2 spoke of the street light, being a mercury lamp. Looking at the scene plan, Ext.P25, it is clear that the house-cum-shop of PW2 was very nearby to the junction in which the street light was put up. PW2 in cross- examination has stated that he opens the shop in the light available from the street lamp. A5 had stepped out from the bike and talked to PW2. A7 who was driving the bike, though sitting on the bike was facing east, Crl.Appeal Nos.883, 462 & 882/2016 13 since after the incident they proceeded towards the junction in the north-east location. The identification of A5 & A7 is very clear.

9. The FIS was taken in the evening since PW2 was taken to the operation room as has been deposed by the Doctor. The body note of PW2 shows the injuries sustained by him and the injured witness can be believed regarding the identification. As far as the recovery is concerned it is pointed out that the scientific evidence, of blood having been recovered from MO1 bike is a very incriminating circumstance. On conspiracy, many of the accused were seen by PW9 in the house of A10 on the just previous day. PW9 also spoke of two bikes having moved away from A10's house in the early morning of the crucial day. A1's conversation with A16 in the car of PW28 proves the meeting of minds regarding the conspiracy to instill fear in the mind of society. This was much prior to the incident. Later to the incident also, A1 was seen and heard by PW8, talking about the attack made on the innocent people, Crl.Appeal Nos.883, 462 & 882/2016 14 at a Hotel. The learned Public Prosecutor specifically points out paragraph 24 to 27 of the impugned judgment to urge the identification as one unassailable.

10. The two crimes were allegedly committed pursuant to the very same conspiracy and in sequence, one after the other by the very same accused, A5, A6 & A7; the former resulting in death and the latter, a near escape from the jaws of death. The FI statements were made separately and later, since the incidents were connected, a joint investigation was conducted, based on which the offences were clubbed together and tried in SC No.521 of 2010. The FI statements made, Exts.P1 & P3, were registered respectively as Crime No.762 of 2009 [Ext.P2 FIR] and Crime No.763 of 2009 [Ext.P6 FIR]. Learned Public Prosecutor concluded with a prayer to uphold the conviction and sentence passed by the trial Court.

11. The incident, which occurred first in point of time resulting in death, was reported by Ext.P1 FIS to PW50. PW1 reported to the Police that his brother- Crl.Appeal Nos.883, 462 & 882/2016 15 in-law, while on a morning walk, was brutally hacked on the neck leading to his death while being taken to the hospital. He did not witness the attack and heard about it while he was proceeding in the morning, as a driver in a lorry. He informed the Police that the cook in a nearby restaurant first saw the injured at 5.15 a.m, when the restaurant opened its shutters for the day. He also said that the cook did not see the victim at 5 O'Clock when he first came to the restaurant and saw him only later at 5.15 a.m. PW1 had no clue as to why his brother-in-law was attacked or who was responsible.

12. PW50 who registered the FIR spoke of a telephone call in the morning at the Police Station informing the commission of a crime of somebody having been hacked, upon which he proceeded to the crime scene at the junction. On reaching there he was informed that the victim was taken to the Medical College Hospital. While he was making enquiries with the people gathered there, he heard about PW2 also having been attacked in Crl.Appeal Nos.883, 462 & 882/2016 16 the early morning. He posted a scene guard and proceeded to the second crime scene, where the people gathered in front of PW2's tea shop. He posted a scene guard in the second location too, informed the Circle Inspector and proceeded back to the police station, where he recorded the FIS of PW1. He also deputed PW48 to take the statement of PW2. He confirmed the registration of Crime No.762 of 2009 regarding the first crime [Ext.P1] and the second crime as Crime No.763 of 2009 [Ext.P57].

13. From the circumstances coming forth, we are of the opinion that the delay in registering the FIR is satisfactorily explained; which was only to ensure the statement from the injured victim itself. On 01.10.2009, PW50, at around 3.15 p.m, based on information received, proceeded to the Ambedkar Colony, Vadasserikkonam and arrested A4. On 02.10.2009, again on information received, after obtaining the directions from the C.I, prepared Ext.P60 Search Memo for searching the house of one Binu and recovered MO37 to Crl.Appeal Nos.883, 462 & 882/2016 17 MO62. Amongst the recovered items are the alleged uniform of DHRM members and flags, stickers, notices, posters etc. of DHRM. Interestingly it is not disclosed as to the accused from whose house, the search was conducted and the material objects recovered. We can only presume, going by the name in the Mahazar, that it could be A13.

14. PW48 recorded Ext.P3, FIS from PW2.

According to PW2 at around 5.15 a.m, while he was opening his tea shop; adjacent to his residence, he was attacked by a person with a sword, causing him injuries to the neck, left shoulder, left wrist and on the left side of chest just above the stomach. He opens the tea shop at around 5 a.m and closes it by 8.30, after which, he is employed in a nearby sawmill. On that day, after he woke up, he was sitting in front of his tea shop, filling the stove, when a motor cycle came from Ayiroor to Janatha Junction and stopped near his tea shop. There were three persons on the bike, one of whom alighted, came near him and asked for tea. The engine Crl.Appeal Nos.883, 462 & 882/2016 18 of the bike was running and the other two were sitting on it observing PW2. PW2 responded that tea was not ready, when the stranger queried as to whether cigarettes were available. PW2 replied that he will open the shop to get cigarettes and put the key inside the lock to open it. Suddenly, the stranger took a hidden sword and slashed him on the left wrist. The wound started bleeding, when PW1 turned towards his assailant. Again the stranger hacked him on the left of his neck. PW1 screamed and then the stranger struck him on the left shoulder and on his stomach. PW1 covered the wound on his stomach and ran towards his house. He saw the stranger climbing on to the Hero Honda motor cycle and the three riders proceeding towards Janatha Junction. PW2's wife, son-in-law and neighbours came running and he was taken to the hospital. He was given first aid and taken to a higher center. He deposed that his assailant was around five feet tall with dark complexion and was wearing a black rain coat with a hood. The other two riders were also wearing the same Crl.Appeal Nos.883, 462 & 882/2016 19 dress. He identified the bike and also the colour, which was stated to be black and red, but did not remember the registration number. He said he could identify the weapon used and also the person who attacked him and the one who was driving the bike; who were not known to him before. He clearly said that the three persons had the intention of killing him.

15. PW32 is the Doctor who conducted postmortem examination of the deceased. There were seven injuries noted, of which except five, all were incised wounds. The Doctor opined that death was due to injuries sustained to the neck, i.e, injuries Nos.1 and 2. The postmortem certificate was marked as Ext.P18 and it was deposed that injuries numbers 1 and 2 were independently sufficient to cause death. The incised wounds, it was opined, could be sustained by a sharp cutting weapon with a single edge. The abrasion could be caused by contact with rough surface and injuries numbers 6 and 7, in the same oblique line, could be caused by a single cutting action, while warding off or Crl.Appeal Nos.883, 462 & 882/2016 20 blocking the sharp weapon. The Doctor also opined that after sustaining the injuries the injured could walk and talk; but did not specify the duration. The Doctor's evidence proves the first crime to be a homicidal murder, beyond doubt.

16. PW33 is the Doctor who issued Ext.P19 wound certificate to PW2. The history of the alleged assault as noted in Ext.P19 and deposed by the witness was, three persons having hacked him with a weapon at around 5.15 a.m. The incised injuries were, (i) wound on the left side of upper part of neck extending to scalp,

(ii) wound on front of upper abdominal wall, (iii) wound on medial and dorsal aspects of left forearm and

(iv) wound over left shoulder. The Doctor opined that the injuries were sufficient to cause death unless medical intervention was provided and that the injuries could be caused by a sharp edged long weapon. The medical evidence clearly attracts the offence under S.307. The testimony of PW2; which was in tandem with his FIS and also the history noted in Ext.P19 wound Crl.Appeal Nos.883, 462 & 882/2016 21 certificate, is further corroborated by the testimony of the Doctor. PW18, the son-in-law of PW2, took the injured to the hospital. He deposed that PW2 told him that three persons wearing black dress and a rain coat, first asked for tea, then for cigarettes and one of them attacked with a sword. PW2 specifically spoke of the attack having been carried out by three persons, but the first incident did not have any ocular witness.

17. PW1 reiterated his statements in the FIS and he spoke of having come to the crime scene at around 6.30 a.m. when he saw only the blood lying there. He affirmed Ext.P1 FIS and spoke of having witnessed the arrest of A1 and A2 who is identified from the dock. PW3 runs one Nirmal Restaurant where PW64 works as a cook. PW64 comes to the restaurant early morning between 4.45 and 5.00. On 22.09.2009 there was a power failure, for reason of which PW3 stayed back in his shop to churn the batter for the next day. PW64 came early in the morning and PW3 opened the shutter for him. Afterwards, he was sitting in his Crl.Appeal Nos.883, 462 & 882/2016 22 shop, when in the light of the street lamp, he saw a person screaming and himself along with PW64 approached the man. The man was standing just in front of the nearby furniture shop in the same complex. They saw the man drenched in blood and on querying, he replied that three people came in a motor cycle and attacked him. The victim said that the three persons were wearing black dress, and slowly sat in front of the shop and then laid down with his head towards the shop.

18. PW64 recognized the victim and said that his house was near MGM School. PW64 went to the house of the victim with one Kumar in his car and brought the victim's wife (PW13), son, brother-in-law (PW29) and his wife. PW3 took the victim to the Sree Narayana Mission Hospital Varkala in the car in which the victim's family came. He spoke of the victim's wound on the neck having been tied with a maxi obtained from a nearby house. The victim was in the back seat, with the wife and son sitting on both sides. The victim on the way to the Hospital, was crying, which sounds ceased Crl.Appeal Nos.883, 462 & 882/2016 23 when they reached Vadasserykonam. Immediately he was taken to a nearby hospital where the victim was declared dead. The deceased was taken to the Medical College in an ambulance and PW3 returned to his shop after dropping the wife of the victim at their residence. On reaching back he also heard about the attack on A2. He identified the dress worn by the deceased and the umbrella carried by him.

19. PW64 fully corroborated the evidence of PW3. He was acquainted with the deceased and used to see him regularly walking, in the morning. He also used to see him praying at the nearby temple. On the crucial day also he saw the deceased in front of the temple. He proceeded to the hotel where PW3 was staying for the night. He knocked on the shutter which was opened by PW3 and while he had commenced working, he heard the shout coming from the nearby furniture shop. Further testimony, was in tune with the deposition of PW3. He proceeded to the house of the victim and went to the junction where he saw Anjooran (PW4) and Kumar. PW64 Crl.Appeal Nos.883, 462 & 882/2016 24 and Kumar in the car of one Baiju went to the residence of the victim. Baiju knocked on the door of the residence of the victim and informed the family. The family comprising of two women, a boy and an old man came to the crime scene. They obtained a maxi from the nearby house, tied it around the victim's neck and took him to the hospital. The family came to the crime scene in a car driven by a woman and from the crime scene, the victim was taken to the hospital in the same car, driven by PW3. He too identified the dress and articles of the deceased.

20. PW11 responded to the call of Kumar and came to the Junction hearing about the incident. He saw PW64 and the other two standing there and together they went to the house of the victim. There is no clarity as to whether the persons who went to the victim's residence went in Baiju's car or PW11's. 'Kumar', spoken of by all the witnesses, was not examined. PW12 is the neighboring resident who saw the commotion, when she came out to take the milk kept on the sit out. She Crl.Appeal Nos.883, 462 & 882/2016 25 gave the maxi, which was tied around the victim's neck to arrest the bleeding. PW13 is the wife of the deceased who spoke of her husband having gone for morning walk, in the dress and with the articles seized from the crime scene, which were identified by her in Court. She spoke of the information conveyed to her and the subsequent events as spoken of by the other witnesses. Her son and brother accompanied her in the car driven by her sister-in-law. At the crime scene, seeing the injured victim drenched in blood, her sister-in-law expressed difficulty in driving and hence PW3 drove the vehicle. PW14 is the Priest of the nearby Temple, who spoke of having seen the deceased on the crucial day and also deposed that the deceased used to regularly come to the Temple, in the early morning and pray from the outside. He came to know of the attack on the deceased at around 8.00 a.m. PW29 is the brother- in-law of the deceased, who witnessed the inquest and marked Ext.P14 report. He also identified the articles recovered from the crime scene and marked the mahazar, Crl.Appeal Nos.883, 462 & 882/2016 26 Ext.P15. Ext.D4 contradiction was marked from his prior statement, which according to us is not very relevant since the subsequent events after the attack on the deceased have clearly come out from the testimony of the other witnesses. Admittedly, there were no eye-witnesses and the contradiction marked does not help the accused at all.

21. The subsequent incident was spoken of by PW2, where he sustained grievous injuries in the attack of A5 who came with two others, one of whom was identified as A7; in a bike. His testimony about the attack on him was in tandem with that of Ext.P3 FIS. It has to be noticed that in Ext.P3 FIS the body note of injuries sustained by PW2 was noted. Ext.P19 wound certificate produced by PW33 also indicated the wounds of the victim. The wound certificate was prior in time to the FIS, which was at 20.30 hours on 23.09.2009, as recorded at the Hospital. The witness identified A5 & A7 respectively as the persons who attacked him and drove the bike. The bike was also identified as MO1. Crl.Appeal Nos.883, 462 & 882/2016 27 PW1 spoke of having seen the accused in the light of the mercury lamp on the electric post near his shop. He deposed that the FIS was recorded at around 8'O Clock.

22. PW4 was a dealer in sand, who at 4.30 a.m on 23.09.2009, entrusted his Mini Lorry to a driver and was sitting in front of a Lottery shop at Chandamukku. He deposed that he saw three men in black dress coming in a bike and proceeding east. He talked to his friend, Kumar, who was standing on the opposite side of the road and expressed an apprehension that they were thieves. Immediately afterwards the three persons in the bike came back and proceeded west. He spoke of an Ambassador Car driven by one Praceepan having braked, to let the bikers pass by. Immediately after that, PW64 came and informed them about somebody having been hacked. He also spoke of PW64, along with one Kumar, having gone to inform the family of the victim in the Car of one Biju. He proceeded to the scene of crime and his version of what happened later at the crime scene corroborated the other witnesses.

Crl.Appeal Nos.883, 462 & 882/2016 28

23. PW7 is Praceepan, who was driving the Ambassador Car, who, on seeing the Hero Honda motor cycle coming at high speed; braked for them to pass. He spoke of three persons in black dress in the bike who looked at him keenly on his slowing the Car. He spoke of then having seen PW4 & PW6 standing in the junction. PW7 went home and he heard about the murder at 9 a.m. He spoke of having clearly seen the riders in the bike and identified A5 & A7, whom he saw in the vapour lamp at the Ayiroor junction. PW4 identified MO1 bike and deposed that he thinks A7 was riding it and A10 was travelling in it. PW7 identified A5 & A7 from the dock. The identification by both cannot be believed, especially since they only had a fleeting glimpse of the persons going in the bike; with whom they had no prior acquaintance.

24. PW5, a tea-shop owner, resides in Kovoor Muthana Lakshamveed colony, where there are 32 residents. He speaks of one Ravi @ Naxalite Ravi, in whose house there used to be regular gathering of DHRM Crl.Appeal Nos.883, 462 & 882/2016 29 members. Aggrieved with the sound generated, PW5 had complained to the brother-in-law of Ravi that the pandemonium created in the meetings hamper the studies of children in the colony. When the complaint was raised, PW5 was threatened with house trespass and the meetings with around 100-150 persons continued. Advocate Asokan (A2), according to the witness, was a regular participant, who was identified from the dock. On 22.09.2009, PW5 opened his shop at 4 O'Clock in the morning, when two persons came to his shop and asked for tea. Since the stove was not ready, they moved aside and stood talking to each other. Again they approached him and asked whether there was any tea-shop nearby. PW5 then asked them why they were in the colony at such an odd time, to which they replied that they were engaged in wiring work in a nearby house. PW5 was suspicious since all the residences inside the colony were electrified. The two persons then moved to the road above, where another person was sitting in a motor bike. The two persons who approached the witness was Crl.Appeal Nos.883, 462 & 882/2016 30 identified as A3 & A4. Again on 23.09.2009 at about 5 O'Clock two people, one of whom had come the previous day also, came to his tea-shop and asked for tea. He saw one of the persons hiding a sword and hence he created a ruckus. His wife came out of the house and the trespassers climbed on to the road above where a scooter and a bike were idling with the engine on. All these persons, clad in black, then moved away in the respective vehicles. The prosecution case that three persons in a bike and two others in another bike and again two persons in a scooter were prowling the area seems to be proved. However, the identification is not established. As we found, the identification of A5 & A7 by the witnesses who saw them speeding in the bike is not believable. Likewise, PW5 also did not identify the two persons who came to his shop on 23.09.2009.

25. On the conspiracy angle a number of persons were examined and there was thorough search carried out in the DHRM offices all over the State. PW30 is the attestor to Ext.P16 mahazar of seizure pursuant to a Crl.Appeal Nos.883, 462 & 882/2016 31 search conducted in one Kumari's house at North Paravur. PW31 witnessed the seizure as per Ext.P17 mahazar from the house of one Rajeev. PW43 is the District Registrar, Ernakulam, who produced the registration details of DHRM. PW44 & PW45 are the Tahasildars of Chirayinkeezhu and Kollam, who proved the caste status of A1, A3 to A6, A8 & A9. PW49, C.I. of North Paravur Police Station, conducted search of one Kattipparambil House and the house of one Anuraj. The documents recovered from these locations do not connect the DHRM with the crime alleged. PW43's testimony discloses that the organization was one which had sought registration under a statute and the testimony of PW44 & PW45 affirmed the caste status of the referred accused, who could be members of the Dalit organization. But these aspects do not implicate the organization or the accused on the charges alleged against them.

26. PWs.53, 54, 56 & 58 are Nodal Officers of Mobile Phone Service Providers, who produced the call Crl.Appeal Nos.883, 462 & 882/2016 32 details, which again do not implicate the accused. PW9 & PW10 are witnesses proffered to speak on the conspiracy. The testimony of PW9, whose neighbors are DHRM activists, is that the house of A10, was frequented by many persons, known and unknown. On 22.09.2009, he saw A10 and his friends talking on the road. He identified A10, who was talking to a stranger and said that there were two motor bikes in the house of A10. At about 10 in the night he saw a Hero Honda bike going to A10's house. He identified MO1 bike and MO7 scooter, but the scooter was not referred to in his chief-examination. The witness also spoke of having been informed by his wife that often people wearing black dress come to A10's house. PW9 slept around 9 O'clock and woke at 4 a.m on 22.09.2009 hearing the sound of a motor bike starting. He saw three persons in black dress going in a bike, followed by two in a scooter and two others in another bike. The witness does not identify any of the accused from the dock.

27. PW10 is an autorickshaw driver, whose Crl.Appeal Nos.883, 462 & 882/2016 33 mother has a property of an extent of 40 cents near the Ambedkar Colony, where there are coconut trees, tapioca and plantain. While PW12 was proceeding to oversee his property on 22.06.2009 at around 5.30 p.m, he observed a gathering in one Saji's house, which was on the way. There were 10 to 15 people inside the residence, from among whom, he identified Saji. On his return at around 7.30 p.m, he saw about 25 people outside the house and 4 to 5 persons including Saji sitting in the sit-out of the building. He identified A4 as Saji and A1 as the person he saw standing in front of the house, whose lips had a white patch. In addition, he also identified A2 & A3. On persistent questioning as to whether he could identify any others, he also pointed out A5. But for the presence of the identified accused, he does not speak of overhearing any conversation between them. His identification of A5 was marked as an omission in his prior statement. Ext.D3 contradiction in the prior statement that the witness saw the persons inside the house under construction through the window was also Crl.Appeal Nos.883, 462 & 882/2016 34 marked. PW22 also witnessed Ext.P4, the mahazar of the residence of A4's house and said DHRM meetings were conducted at the house of A4 and affirmed the uniform of DHRM to be black T-shirt and blue pants. PW17, who was examined to prove the association of A4 & A10 with DHRM, turned hostile. The evidence of PW9, PW10 & PW22 only indicates meetings of DHRM having been conducted in the residence of some of the accused, specifically A4 & A10. There is nothing regarding a conspiracy to commit the crimes, coming out from the testimony of the said witnesses.

28. The prosecution has also examined two witnesses, who were said to have overheard the conspiracy hatched by the DHRM members to make random killings, for establishing their formidable presence in the society. PW28 is a taxi driver who deposed that in the year 2009, on 16.9.2009 in the afternoon, he took a hire to the Railway Station. When he was returning, somebody from the back of the vehicle clapped hands to get his attention. The said person wanted to go to Crl.Appeal Nos.883, 462 & 882/2016 35 Vadasserykonam and PW28 having agreed, two persons got into his vehicle. A1 was identified as the person who clapped his hands and A16, the person who accompanied A1. It was around 2'0 clock in the afternoon and PW28 dropped both these persons at the Junction at Vadasserykonam and accepted the fare of Rs.100/-. Later he heard about the murder and the near killing of another person from the print and electronic Media. He then recollected the conversation between the passengers in the Car. A1 told A16 that the situation was not good and that they should do something urgently without which their activists would be simply beaten up. He also expressed the apprehension that they will not survive for long in the present situation. A16 asked A1 to be patient and wait till they got five or six fearless people. When the news of the crime came, PW28 assumed that his passengers were conspiring to commit the crime. After three months, he saw a magazine in which A1's photograph was displayed, marked as MO15, which prompted him to go to the Circle Inspector of Crl.Appeal Nos.883, 462 & 882/2016 36 Police and speak on what he overheard in his taxi.

29. PW8 was proffered before Court to depose on a similar conversation, after the incident. He was running a bus service and on 23.09.2009, himself, along with his driver, went to the Central Hotel at Kallambalam to have tea. There were three persons sitting opposite to him, with another who had a white patch on his lips. A1 with the white patch & A12 were identified. According to PW8, while he was sitting there, A1 spoke into the phone that today's work was really effective and another person is also targeted. PW28 deposed that it was A1 who spoke into the telephone. We are afraid that the testimony of PW8 & PW28 does not aid the prosecution case or establish the conspiracy. Admittedly, after the crime, the police had carried out widespread search in DHRM offices and persons who were connected to the organization were also arrested. The said action of the police would also have been widely publicized in the print and electronic media. Obviously, the witnesses had offered themselves Crl.Appeal Nos.883, 462 & 882/2016 37 on the publicized connection of A1 with DHRM. Though the two persons in PW28's Car, A1 & A16 and the two persons drinking tea at Central Hotel A1 & A12 could have been referring to the incident; we have to make assumptions to pin the conspiracy on the accused. It is not unerringly established that the prior reference led to the crime or that the later one was definitely with respect to the two crimes which occurred on that day.

30. There were some witnesses who turned hostile and some others whose testimony does not really bring out anything incriminating, which we have desisted from referring to. What remains are the recoveries as projected by the prosecution, allegedly pursuant to confession statements, under S.27 of the Indian Evidence Act. Ext.P8 mahazar is with respect to the crime scene of the first incident leading to the death of the victim, as pointed out by A5. There is no concealment much less any discovery arising from the purported confession. We refer to the decision of another Division Bench in Thadiyantevida Nazeer v. Crl.Appeal Nos.883, 462 & 882/2016 38 State of Kerala [2022 (1) KLT 685]. There is no material object recovered leading to the discovery of a fact. The confession is unacceptable under S.27, also for the reason that the scene of occurrence was known to the police even before it was said to be pointed out. It also has to be mentioned that PW21, who witnessed the mahazar, mistakenly identified A13 as A5, who carried out the so-called pointing out of the crime scene.

31. Ext.P10 led to recovery of MO7 scooter which was witnessed by PW24. PW24 spoke of having seen A10 pointing out MO7 scooter from the house of PW15. But PW15 failed to identify any of the accused and denied even the prior statement to the police and was declared hostile. PW34 is the Motor Vehicle Inspector (MVI), who produced Ext.P20 Registration Certificate of MO7 Scooter. According to the MVI, the RC owner of the scooter is Gireesh, son of Dharmarajan. However, Ext.P20 indicates the owner to be one Radhakrishnan. There is nothing brought out in evidence to identify Crl.Appeal Nos.883, 462 & 882/2016 39 these persons. The recovery of MO7 does not lead to any incriminating circumstance. Ext.P11 mahazar is witnessed by PW25 and speaks of the material objects recovered from near the scene of crime of the second incident. He is a nearby resident and on 24.09.2009 at about 8.30 am, the police came to the scene for preparing the mahazar. A steel vessel, a rose-coloured maxi and a black chappal were recovered from the scene, which were identified as MO12 to MO14 disclosing no connection to the accused.

32. The recovery stressed by the learned Public Prosecutor is of MO1 bike from the house of PW27. PW26 is the witness to the mahazar, Ext.P12. He spoke of A5 having accompanied the police on 14.10.2009 to the house of PW27, from where a bike was pointed out by A5. The bike pointed out was of make Hero Honda and had the registration no.KL-AD/177. He accepted that he signed Ext.P12 mahazar and also identified MO1. Ext.P12 is the mahazar indicating the confession of A5, that he has kept the bike in a house at Kavanapally near Seematti. Crl.Appeal Nos.883, 462 & 882/2016 40 PW27, from whose house the bike was recovered, turned hostile and according to him, he was not present at the time of recovery. PW27 said that he saw the bike on the rear side of his house and on questioning his wife, he was told that somebody had kept it there. He also said that his wife was present, when the police recovered the bike; who was not examined. According to the I.O, PW65, the wife of PW27 was not trustworthy and hence she was not examined. MO1 bike was not concealed and the accused has a specific case that the bike was lifted from the house of A5 and kept in the house of PW27 by the Police. There were blood stains detected from the bike by the Scientific Expert, who was with the police when the recovery was effected. But, there is no examination conducted to ascertain the source of the blood. It is also trite that on the mere recovery, a conviction cannot be justified. More pertinently but for identifying the make and colour of the bike, none spoke of its registration number, which alone could surely prove the recovery as inculpating the person who Crl.Appeal Nos.883, 462 & 882/2016 41 led the Police to the bike.

33. As we noticed, the case of conspiracy has not been proved by the prosecution, nor is the motive for the random crimes established. DHRM comes out as an organization which is registered under a statute. But for evidence that the accused are all Dalits, who were associated with the movement, there is nothing proved as to a conspiracy having been hatched to carry out random killings to establish the movement as a formidable one. Repeated meetings and the presence of the accused on the previous days, by themselves cannot inculpate them. If there was something more concrete, those aspects would have formed valid links in the chain of circumstances.

34. The persons who heard the sound of two wheelers and saw those travelling in them do not establish the perpetrators of the crime, who allegedly came in a motorbike. We have already held that the identification by the witnesses who were standing on the road and the one travelling in a car cannot be Crl.Appeal Nos.883, 462 & 882/2016 42 believed. Even if they saw the persons travelling in the bike, it is only a fleeting glimpse and at that time of the day and in the context of the moving bike, it is grossly insufficient for a valid identification later. Even if the identification is believed, insofar as the first incident, it is at best a calculated assumption that it would have been the three, seen by the witnesses, clad in black, who perpetrated the crime; which is far from the standard of proof beyond reasonable doubt. A conviction cannot be entered on mere presumptions or assumptions, which would then be a conviction on surmises and conjectures. As we noticed, even the recovery of the bike in which the three perpetrators of the crime travelled cannot by itself lead to a conclusive finding without the Court being satisfied with the identification.

35. As we observed at the beginning, the crime is not only shocking but also macabre for no motive comes out of the investigation. Both were random crimes in which two unconnected and ordinary men, not involved Crl.Appeal Nos.883, 462 & 882/2016 43 in any intrigues or machinations were hacked mercilessly. But that is not a reason to convict persons accused of the crime on the ground only of a grave suspicion arising out of their connection to an organization, whose members conducted frequent meetings with a lot of sound and fury. The mere boisterous nature of the meetings cannot pin them to a crime of this manner. We are afraid that there is nothing to show first, that the accused had conspired between themselves and in pursuance of such conspiracy killed an innocent morning walker nor can the overt act of hacking the unsuspecting fellow to death be pinned on the alleged perpetrators; A5 & A7, as charged by the prosecution and who stood trial.

36. The conspiracy element and the identification of the prowling bikers equally applies to the second incident also. But pertinently the victim of the second attempt survived and stood up to speak on the crimes, identifying two of the perpetrators; A5 & A7. A5 was identified as the person who hacked him and Crl.Appeal Nos.883, 462 & 882/2016 44 A7, the person who was riding the bike. As we already noticed, the testimony of PW2, the grievously injured man, who by providence and medical intervention; saved from death, testified in Court about the attack made on him. He graphically described the incident which started with the three bike-riders coming in one vehicle and stopping near his tea-shop. One person stepped down from the bike and approached him to ask for tea. PW2, who was filling the stove in the wee hours responded that tea was not ready. Merely because he admitted to have been filing the stove, it cannot be assumed that he never turned his face to look at the stranger who approached his tea-shop at an odd hour. In fact the normal conduct would be otherwise; to look at the stranger and appraise him while answering the query. Since tea was not ready, the stranger asked for cigarettes, which PW2 readily agreed to supply by opening the shop room. It was then that the attack was carried out, which again was graphically spoken of by the injured; which we extracted above and requires no Crl.Appeal Nos.883, 462 & 882/2016 45 reiteration. The wounds sustained were corroborated by the body note in the FIS and the Wound Certificate. The history spoken of was identical in the Wound Certificate and the FIS. The son-in-law [PW18] of PW2 also spoke of his father-in-law having spoken of three persons in a bike and one having attacked him with a sword.

37. The serious discrepancy in identification, pointed out by the defence is the admission made by PW2 in cross-examination that he was not acquainted with the accused prior to the incident and that the entire incident happened in a flash. It is also pointed out that the witness spoke of identification of the accused having been made from amongst the photo of 6 to 7 accused shown to him by the Police and later after three years, the driver of the motor bike having been brought to his house for identification. In cross- examination, there was also an admission that the one who committed the overt act was identified from among five persons, which identification in the form of a TIP Crl.Appeal Nos.883, 462 & 882/2016 46 was denied to have been carried out by the I.O.

38. To answer this contention we have looked at the specific statements made by the witness in chief- examination and cross-examination. The specific statement in chief-examination was that the accused were identified by him from photos of 6 to 7 accused shown to him. The person who was identified at his house at a later print of time, as spoken of in chief- examination, was the person who was sitting in the bike, in the driver's seat, A7 and not A5. In cross- examination, a question was put to the witness whether before the person who hacked PW2 was brought to his house, the Police had given him advance information; which he negatived. It is pertinent that in chief examination he never said that A5 was brought to his house. The questioning by the defence continued and the witness specifically denied a question whether the Police informed him as to why the person who committed the overt act was brought to his house. The witness does not speak of any TIP and only said that there were Crl.Appeal Nos.883, 462 & 882/2016 47 other persons along with Circle Inspector. Obviously the C.I brought A7, to the residence of PW2 and there would be police men accompanying. Further, the specific statement made in chief-examination is only that the person who was driving the bike was brought to the house of the witness; who was arrested after three years. A5 was identified from many photographs shown to PW2.

39. As far as the prior acquaintance and the entire incident having occurred in a flash; it is to be noticed that the victim who was subjected to a brutal attack would have been left with a lasting impression of the person who attacked him. As we noticed, it was at an odd hour that three strangers came to his shop and one of them approached him for tea. There was an interaction between them and when the eyes of the witness was riveted on the lock, which he was attempting to open, A5 attacked. Though the first attack happened in a flash, there were four cuts made on the body of the victim and the victim would have Crl.Appeal Nos.883, 462 & 882/2016 48 definitely noticed the features or at least the face of the man, who, without any cause or provocation attacked him. We also looked at the contention regarding the absence of light. Ext.P25 is the scene plan and there is an electric post very near to the crime scene. PW35, from the KSEB, has specifically referred to the post having No.E/JK/25 as indicated in the scene plan and produced the Certificate Ext.P21 to the effect that there was no complaint of power failure in the locality. He also deposed that there was no power cut by the employees of the KSEB. The proximity of the street lamp to the scene of crime would commend us to further hold the identification of A5 to be be proper and believable; that too when the witness is the injured victim. However, we are not convinced that PW2 would have identified A7, who was sitting at a distance, clad, head over in black, in the driver's seat of the bike.

40. Kanan V. State of Kerala [(1979) 3 SCC

319)] is the oft quoted decision of the Hon'ble Supreme Crl.Appeal Nos.883, 462 & 882/2016 49 Court, to urge that, prior acquaintance and a TIP being absent, the identification of an accused in Court becomes absolutely valueless; which dictum was reiterated in Mohanlal Gangaram Gehani (supra). In Remanbhai Naranbhai Patel V. State of Gujarat [(2000) 1 SCC 358)] the Hon'ble Supreme Court noticed Mohanlal Gangaram Gehani (supra) and held that, especially when the '... eye witnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds, especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them ('sic').

41. Ganpath Singh (supra) was a case in which out of the six eye witnesses, five turned hostile.

There was no TIP and the sole eye witness identification was disbelieved by the Hon'ble Supreme Court, especially for reason of the driver who picked Crl.Appeal Nos.883, 462 & 882/2016 50 up the accused from the crime scene having categorically deposed that he was not able to identify the persons who boarded his tempo due to darkness. More importantly, the driver also spoke of himself and the loyal eye witness having been taken to the police station where they were shown the three accused persons. Ravindra (supra) was a case in which photographs of the accused were shown to the witnesses which fact was admitted by the Investigating Officers. Raju (supra) was a case in which the identification was by passers-by, who were acquainted with A1 but were seeing A2 for the first time. A2's name also did not appear in the FIR and was not known to the witnesses which resulted in A2 being conferred with the benefit of doubt.

42. OMA and others (supra) considered a number of decisions of the Hon'ble Supreme Court, which held that an identification parade belongs to the investigation stage providing assurance that the investigation is in the right direction. The position Crl.Appeal Nos.883, 462 & 882/2016 51 has been succinctly elucidated by the Hon'ble Supreme Court in Amitsingh Bhikamsingh Takur (supra). The general rule is that substantive evidence of a witness is the statement made in Court, clear from the provisions of S.9 of the Evidence Act. However, identification at trial from its very nature is inherently of a weak character. The rule of prudence is that the identity of the accused, who are strangers, be first ascertained in a TIP, to further strengthen the testimony in Court, which undoubtedly is the substantive evidence. The exception to the rule of prudence is occasioned when the Court is impressed by a particular witness, on whom safe reliance can be placed; especially when there is no provision in the Cr.P.C, which obliges the investigating agency to hold or confers a right on the accused to claim, a TIP. It was held "... parades are essentially governed by S.162 of the Code. Failure to hold a Test Identification Parade would not make inadmissible the evidence of identification in Court. The weight to be attached to Crl.Appeal Nos.883, 462 & 882/2016 52 such identification should be a matter for the courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting for corroboration (sic).

43. Ashfaq v. State (Government of NCT of Delhi)- (2004 (3) SCC 116) held as under:-

"Though as a matter of general principle, the point urged with reference to the omission to conduct earlier the test identification Parade may be correct, the question as to whether there is any violation of the same in a given case would very much depend on the facts and circumstances of each case and there cannot be any abstract general formula for universal and ready application in all cases....".

44. Dastagir Sab V. State of Karnataka [(2004) 3 SC 106] in the peculiar facts of the accused having been shown to the prosecutrix, to ensure that the correct person is arrested, held that the non holding of a TIP does not vitiate the trial or the identification made. Mahabir V. State (NCT of Delhi) - [(AIR 2008 SC 2343)] reiterated the principle and held Crl.Appeal Nos.883, 462 & 882/2016 53 that: Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn.AIR 1958 SC 350, Vaikuntam Chandrappa v. State of A.P.AIR 1960 SC 1340, Budhsen v. State of U.P.(1970) 2 SCC 128 and Rameshwar Singh v. State of J&K(1971) 2 SCC 715.)

45. State of Rajasthan V. Daud Khan (2016) 2 SCC 607 held so:

"44. That apart, it was recently held in Ashok Debbarma v. State of Tripura (2014) 4 SCC 747 that while the evidence of identification of an accused at a trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are Crl.Appeal Nos.883, 462 & 882/2016 54 trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series of decisions.Earlier, a similar view was expressed in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1."

46. In the present case, it is the injured witness who identified one of the accused. True, the incident did not occur in broad day light, but was in the wee hours, with a street light very nearby to the scene of occurrence. The accused and the victim were standing near to each other and it was not a fleeting glimpse that the victim had, of the accused. The victim was in front of his tea shop when three persons approached in a bike, one of them got down from the bike and approached the victim. Definitely, the victim would have closely apprised the stranger walking up to him in the wee hours. The stranger asked for tea, which the victim said was not ready, again having an opportunity to look at the stranger. The stranger then asked for cigarettes, which request the victim agreed Crl.Appeal Nos.883, 462 & 882/2016 55 to comply and for which he turned to open the shop when the attack was made. The attack was also not confined to a split second but was brutal and repeated, on the upper body of the victim. Again the victim had the opportunity to see the attacker when he was being hacked; leaving him with a lasting impression. We find no reason to disbelieve PW2, the injured who was attacked by A5. Though a TIP was not held, the witness admitted to have identified the accused from 6 to 7 photos. This is a peculiar case where there was no motive and no perceivable reason ferreted out, for the attack on the deceased and PW2, at two different locations in sequence, and in close proximity of time.

47. There were no eye witnesses and police could have only identified the accused from the sole injured eye witness. Ashfaq (supra) held: 'In this case, it has also further come on record that one whose identity was known was initially traced, that the said trail led the investigating authorities to the others and that the complainant was also said to have been Crl.Appeal Nos.883, 462 & 882/2016 56 associated even at that stage of investigation to identify the accused and ensure properly the arrest of the real accused. Consequently, we see no merit whatsoever in the grievance made and challenge to the judgments of the courts below on this ground.'(sic). In Dastagir Sab (supra) also the prosecutrix had to be shown the witness at the investigation stage. Likewise, here the accused was identified from among five or six photos by the injured witness. If a TIP was held, definitely it would have been attacked on the ground that there was an earlier identification from the photographs. The anomaly in so far as the identification from the house of the injured victim is only on a confusion created in the mind of the witness. The witness spoke only of the driver in the bike having been brought to his home for identification. The questions in cross examination were regarding the accused who committed the overt act, who was never admitted to have been brought to PW2's residence. The person who was brought to the residence of the injured Crl.Appeal Nos.883, 462 & 882/2016 57 witness was the driver of the bike and not A5 who attacked him. The driver of the bike was identified as A7 whose identification we have held is on a very sticky premise, considering the distance at which he was sitting on a bike, from the scene of crime.

We confirm the conviction and sentence of A5 under S.307 of the IPC. The other accused, who are A1 to A4, A7, A10 and A16 are acquitted and they shall be released forthwith, if they are not required in any other crimes. If they are on bail, the bail bonds shall stand cancelled. Crl.Appeal No.462 of 2016 is partly allowed affirming the conviction and sentence of the 1st Appellant/5th accused under Section 307 and acquitting him of the other offences as also the 2nd Appellant on all offences. Crl.Appeal Nos.882 of 2016 and 883 of 2016 are allowed.

Sd/-

K.VINOD CHANDRAN, JUDGE Sd/-

C.JAYACHANDRAN, JUDGE lgk/sp

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