Kerala High Court
T.K. Haridas vs Central Bureau Of Investigation on 27 August, 2025
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
DSR NO. 6 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
OF SPE/CBI COURT, THIRUVANANTHAPURAM
PETITIONER
/STATE:
STATE OF KERALA
RESPONDENTS/
COMPLAINANTS:
1.
JITHAKUMAR K.
/O. KAMALASANAN NAIR PCT- 7256 R/O KAMALALAYAM,
S
VP 3- 555B, VILAVOORKAL, MALAYINKEEZH POST,
THIRUVANANTHAPURAM.
2
.
SREEKUMAR.S.V
S/O K.SHIVARAJAN, ARPC T- 1795, S.V.BUILDING,
CONVENT ROAD, NEYYATTINKARA, THIRUVANANTHAPURAM.
PL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
S
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHA
THIS
DEATHSENTENCEREFERENCEHAVING COMEUP
FORFINAL
EARING
H ON
27.08.2025,
ALONG
WITH
CRL.A.940/2018, 959/2018
AND
CONNECTED
CASES,
THE
COURT
ON THE
SAME
DAY
DELIVERED
THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 940 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT
/ACCUSED NO.4:
.AJITH KUMAR
T
AGED 54 YEARS
S/O.THANKAPPAN NAIR,
CIRCLE INSPECTOR OF
POLICE,R/O.PRASANNA BHAVAN,NEMOM,
PALLICHAL,THIRUVANANTHAPURAM.
Y ADVS.
B
SRI.S.RAJEEV
SHRI.ANAND KALYANAKRISHNAN
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :3:
RESPONDENT
/STATE:
ENTRAL BUREAU OF INVESTIGATION
C
REP. BY STANDING COUNSEL, CBI,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031
(RC5(S)/2007/CBI/SCB/CHENNAI.
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
HIS
T CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
27.08.2025,
ALONG
WITH
DSR.6/2018
AND
CONNECTED
CASES,
THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :4:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 959 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT
/ACCUSED NO. 5:
.K.SABU
E
AGED 59 YEARS, S/O.ISRAEL,
ASST.COMMISSIONER OF POLICE,R/O.K.P.BHAVAN,
VELLARDA JUNCTION,THIRUVANANTHAPURAM.
Y ADVS.
B
SRI.S.RAJEEV
SHRI.ANAND KALYANAKRISHNAN
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
SRI.PIRAPPANCODE V.S.SUDHIR
SHRI. AKASH S.
SMT.V.S.VARALEKSHMI
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :5:
RESPONDENT
/STATE:
ENTRAL BUREAU OF INVESTIGATION
C
REP. BY STANDING COUNSEL, CBI,HIGH COURT OF
KERALA,ERNAKULAM - 682 031
(RC 5 (S)/2007/CBI/SCB/CHENNAI).
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
HIS
T CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
27.08.2025,
ALONG
WITH
DSR.6/2018
AND
CONNECTED
CASES,
THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :6:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 965 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT
/ACCUSED NO. 6:
.K. HARIDAS,
T
AGED 62 YEARS, S/O.KRISHNAN NAIR,
ASST.COMMISSIONER OF POLICE (RETD.),
SUPRABHA, TC.NO.34/1533, CHITTATINKARA,
VATTIYOORKAVAU, THIRUVANANTHAPURAM.
Y ADVS.
B
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.SACHIN JACOB AMBAT
SHRI.M.A.MOHAMMED SIRAJ
SMT.ANNA LINDA EDEN
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :7:
HRI.HARIKRISHNAN S.
S
SRI.S.SREEKUMAR (SR.)
RESPONDENT
/STATE:
ENTRAL BUREAU OF INVESTIGATION
C
REPRESENTED BY STANDING COUNSEL, CBI,HIGH COURT OF
KERALA, ERNAKULAM - 682 031
(RC.5(S)/2007/CBI/SCB/CHENNAI).
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
THIS
CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
N
O 27.08.2025,
ALONGWITH
DSR.6/2018ANDCONNECTEDCASES,THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :8:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 1057 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.1:
ITHA KUMAR.K
J
AGED 53 YEARS
S/O KAMALASANAN NAIR, PCT-7256 R/O. KAMALALAYAM,
VP 3-555B VILAVOORKAL, MALAYINKEEZH POST,
THIRUVANANTHAPURAM
Y ADVS.
B
SHRI. P.VIJAYA BHANU (SR.)
SHRI.HARISH R. MENON
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
SRI.V.C.SARATH
SMT.POOJA PANKAJ
SRUTHY N. BHAT
SMT.PRAVEENA P.K.
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :9:
RESPONDENT
/COMPLAINANT:
NSPECTOR OF POLICE
I
CENTRAL BUREAU OF INVESTIGATION,SCB CHENNAI,
REPRESENTED BY STANDING COUNSEL CBI,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
THIS
CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
N
O 27.08.2025,
ALONGWITH
DSR.6/2018ANDCONNECTEDCASES,THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :10:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
WEDNESDAY, THE 27
DAY OF AUGUST 2025 / 5TH BHADRA,
1947
CRL.A NO. 1132 OF 2018
AGAINST
THE
JUDGMENT
DATED
25.07.2018
IN
SC
NO.917
OF
2012
(S.C.No.916/2012
CLUBBED
WITH
S.C.No.917/12)
PASSED
BY
THE
COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM
APPELLANT
/2ND ACCUSED
:
REEKUMAR S.V.
S
AGED 42 YEARS
S/O K SHIVARAJAN, ARPCT-1795, S V BUILDING,
CONVENT ROAD, NEYYATTINKARA,
THIRUVANANTHAPURAM, PIN - 695121
Y ADVS.
B
SRI. ARUN V.G.
SRI.R.ANIL
SHRI.SUJESH MENON V.B.
SMT.INDULEKHA JOSEPH
SRI.NEERAJ NARAYAN
RESPONDENT/
STATE/COMPLAINANT:
1
HE CENTRAL BUREAU OF INVESTIGATION
T
REPRESENTED BY ITS STANDING COUNSEL,
HIGH COURT OF KERALA, PIN - 682031
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :11:
2
HE STATE OF KERALA,
T
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM,KOCHI-682031
Y ADVS.
B
SPL. PUBLIC PROSECUTOR FOR CBI, DR. K.P.SATHEESAN
ASSISTED BY GOKUL D SUDHAKARAN AND BHARATH MOHAN
HIS
T CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
27.08.2025,
ALONG
WITH
DSR.6/2018
AND
CONNECTED
CASES,
THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64852
DSR Nos.6/2018 & Con.Cases :12:
J U D G M E N T
[DSR Nos.6/2018, 940/2018, 959/2018, 965/2018, 1057/2018, 1132/2018 ] Raja Vijayaraghavan. J. Prelude: Udayakumar, a 28-year-old man, was picked up by two police officers attached to the Fort Police Station, Thiruvananthapuram, on 27.09.2005 at around 2:15 a.m., while he was standing with his friend Suresh Kumar at Sreekandeshwaram Park, Thiruvananthapuram. He was taken to theFortPolice StationandthereaftertothenearbyofficeoftheCircleInspector,wherehewas subjected to custodial interrogation involving the use of force and infliction of injuries. Later, on the same day, Udayakumar was declared dead at approximately 11:40 p.m. attheMedicalCollegeHospital,Thiruvananthapuram. The post-mortem revealed severe crush injuries to both thighs, which were determined to be the causeofdeath.Theprosecutioncaseisthatthedeathof Udayakumar was the result of custodial violenceandtortureinflictedunderthe shieldofpoliceuniformandauthority,withintheconfinesofaPoliceStation.The case also exposes themannerinwhichseniorpoliceofficerscolludedwiththeir 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :13: subordinatestosuppressthetruthandobstructthecourseofjustice.Followinga prolonged investigation,initiallybytheCBCIDandsubsequentlybytheCBI,the trial was conducted before the learned Sessions Court. Accused Nos. 1 and 2 were found guilty of murder and were sentenced to death by hanging. The superior officers, arraigned as accused Nos. 4 to 6, were found guilty of conspiracy and of abusing their official position to fabricate records and cause the disappearance of evidence in an attempt to shield the perpetrators. They were accordingly convicted and sentenced to undergo lesser terms of imprisonment. Accused No. 2 passed away in the course of proceedings, and hence the proceedings against him were abated. 1.1. Crl. A.1057of2018hasbeenpreferredbythe1staccused,Crl.A. No. 940of2008hasbeenpreferredbythe4thaccused,Crl.A.No.959of2018 hasbeenpreferredbythe5thaccusedandCrl.A.No.965of2018hasbeenfiled bythe6thaccusedassailingthefindingofguilt,convictionandsentencepassed by the SPE/CBI Court, Thiruvananthapuram. 1.2. TheSPE/CBICourt,Thiruvananthapuram,hasforwardedtheentire case records to this Court for confirmation of the death sentence of the 1st accused as provided in Section 366 (1) of the Code of Criminal Procedure 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :14: (hereinafter referred to as the 'Cr.P.C.'). 2. The prosecution case: 2.1. At around 2:15 p.m. on September 27, 2005, Udayakumar (the deceased) and Suresh Kumar (PW1), who were together at Sreekanteswaram Park, were apprehended by Police Constables Jitha Kumar (A1) andSreekumar (A2), members of the Crime Squad of the Fort Police Station. They found currency notes in the possession of Udayakumar and dissatisfied with his explanation,thePoliceOfficerstookUdayakumarandPW1toFortPoliceStation inanautorickshawandtheywereinitiallyentrustedwithThankamani(PW5)the officer in charge of the General Diary (GD). 2.2. After arrival at the Police Station, A1 and A2 tookUdayakumarto the Office of the CI and after counting his money made him lie on a wooden bench and started torturing him. They lashed the soles of his feet repeatedly with a bamboo cane. While they were going about with this horrendous task Soman (A3), another Police Constable, joined them. A3 forcibly held Udayakumar's head while A1 and A2 forcibly kneaded a GIpipe(MO10)onhis thighs, crushing his thigh muscles. It is alleged that the torture lasted approximately 1.5 hours. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :15: 2.3. After the torture, a battered and injured Udayakumar waswalked backbyaccusedNos.1and2tothePoliceStationandhewaslodgedinacell. Thereafter,A1andA2tookSureshKumar(PW1)totheCI'sOffice,strippedhim, andstartedbeatinghim.Hearinghiscries,thepersonnelintheofficeintervened and asked them to spare him. PW1 was then made to stand outside Udayakumar's cell. 2.4. At about 10:15 p.m., PW5 asked the inmates of the cell whether they wanted dinner, but found Udayakumar unresponsive. He obtained instructionsfromtheCircleInspectorE.K.Sabu(A5),andimmediatelythereafter, Udayakumar was rushed to the General Hospital, where he was seen by Dr. Sunitha (PW7). The Doctorfoundthathisconditionwascriticalandadvised immediate transfer to the Medical College. Udayakumar was declared dead at 11:40 p.m. at Medical College by Dr. Premlal (PW8) due to the crush injuries sustained on his thighs. 2.5. Immediately after Udayakumar's death was confirmed around 11:45p.m.,S.I.T.AjithKumar(A4),C.I.E.K.Sabu(A5),andA.C.P.T.K.Haridas (A6)conspiredtofabricatefalsedocumentswiththeintenttoshieldA1,A2,and A3fromlegalconsequences.Instructionswereissuedtodivertallphonecallsto 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :16: the Circle Inspector's office in order to prevent information regarding the custodial death from leaking. False entries were made in the General Diary (Ext.P4),pursuanttoinstructionsfromA5,whodirectedthatthediaryentriesbe stoppedat7:30p.m.toconcealtheillegaldetention.SubordinatePoliceOfficers, including PW5, were coerced into making these entries. 2.6. A false FIR, Crime No.703 of 2005 (Ext.P17), was fabricated and backdated to 8:00 p.m. on 27/9/05, though it was infactregisteredafter3:00 AMon28/9/05.CrimeSIRaveendranNair(PW15)wascompelledtoregisterthis false FIR under threat. Head Constable Mohanandictatedafabricatedmahazar (Ext.P18) to support a narrative of fictitious arrest, falsely claiming that Udayakumar and PW1 were arrested at Sreekanteswaram Park at 4:00 p.m.. 2.7. Other official records were also manipulated to align with the concocted timeline, including the Register of Property Found in Search of Prisoners (Ext.P20), arrest memos (Exts.P22, P28(a), P28(b)), arrest registers (Ext.P27), inspection memos (Exts.P21, P24), and the remand application (Ext.P23).Althoughanarrestmemowaspreparedtoevidencetheallegedarrest of Udayakumar, his signature was absent, thus substantiating the fact that he had already succumbed to his injuries by then. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :17: 2.8. A4,A5,andA6threatenedandcoercedsubordinateofficers(PW5, PW15, PW16, PW17, PW18) into creating these false documents and later to depose falsely before the Trial Court. 2.9. The bamboo cane and bath towel (thorthu)allegedlyusedforthe torture were intentionally destroyed by the accused to eliminate evidence. 3. Initial Investigation: 3.1. Initially, two crimes were registered. Crime No. 703 of 2005 was registered under Section 41(1)(d) and Section 102 of the Cr.P.C. against Udayakumar and PW1. Immediately thereafter, Crime No.704 of 2005 was registered under Section 174 of the Cr.P.C, on account of the death of Udayakumar. The investigation of these two caseswereinitiallyhandedoverto the Narcotic Cell Assistant Commissioner (PW43). Thereafter, the investigation was handed over to CBCID by the ADGP (Crimes) and accordingly, K.B.Balachandran (PW45), then Superintendent CBCID, S.I.G.I, took over the investigation.HewasassistedbyDy.SPCBCIDS.I.G.(PW44).Oncompletionof the investigation, CBCID submittedareferreportinCrimeNo.703of2005and final report in Crime No.704of2005fortheoffencepunishableunderSections 323,331,302r/w.Section34oftheIPCagainstaccusedNos.1to3,viz.,Jitha 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :18: Kumar, Sreekumar, and Soman. 4. Earlier Trial 4.1. Committal proceedings were initiated by the Judicial Magistrateof FirstClass-II,ThiruvananthapurambynumberingthesameasC.P.No.21of2006 tothePrincipalSessionsCourt,Thiruvanthapuramon04.04.2006.Thecasewas numbered as S.C.No.1542 of 2006 and the same was made over to the Additional Sessions Court (Fast Track-III), Thiruvananthapuram. 4.2. As many as 34 witnesses were examined beforetheTrialCourtin S.C.No.1542of2006andseveraldocumentsandmaterialobjectsweremarked. In the course of trial, the Additional Sessions Judge arraigned oneRaveendran Nair, who was examined as PW11 in the said case under Section 319 of the Cr.P.C. The entire prosecution witnesses except for a few did not support the prosecution and the trial became a farce. This was bound to happen as the police officers who were privy to the incident did not speak against their colleagues and superiors. 5. Ordering of further investigation 5.1. Faced with the above scenario, the mother of deceased 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :19: UdayakumarapproachedthisCourtandfiledW.P.(C)No.24258of2007seeking various reliefs, including the handing over of the investigation to the CBI. Crl.R.P.No. 2902 of 2007 was filed by Raveendran Nair challenging the order passedbythelearnedSessionsJudgeinvokingpowersunderSection319ofthe Cr.P.C. and arraigning him as the 4th accused. 5.2. The learned Single Judge, before whom the matter had come up for consideration, referred the matter to the Division Bench as one of the questions that arose for consideration waswhetherfurtherinvestigationcanbe handed over to a different agency other thantheagencywhichcarriedoutthe initial investigation. 5.3. Their Lordships of the Division Bench, after consideringtheentire facts and circumstances and hearing the contentions, held that the learned Sessions Judge was justified on the basis of the evidence adduced before it in arraigning Raveendran Nair as the 4th accused and dismissed the Revision Petition. Insofar as the further investigationbytheCBIisconcerned,thisCourt held that it was a fit case in which CBI should conduct "further investigation". The court also held that further proceedings of the Trial Court needbestarted only after CBI files its report. Accordingly, the CBI was directed to conduct 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :20: further investigation in Crime No. 704 of 2005. 5.4. In terms of the directions issued by this Court, Crime No. 704 of 2005 dated 27.09.2005 under section 174 of the Cr.P.C. was re-registered as Crime No. RC-10/S/2007-CBI/SCB/Chennai and the investigation was entrusted withK.PradeepKumar,InspectorofPolice,CBI.Thereportwasforwardedtothe CJMCourt,Ernakulam. ItwouldbepertinenttonotethatwhileallowingtheWrit Petition,theDivisionBenchhaddirectedtheCBItoconductfurtherinvestigation and the trial which had commenced before the Sessions Court, Thiruvananthapuram, was stayed sothatsupplementary/furtherreportcouldbe filed by the CBI. 5.5. While so, W.P.(C) No. 12365 of 2008 was filed with a prayer to transferCrimeNo.703of2005oftheFortPoliceStationalsototheCBI,inwhich casethepolicehadsubmittedareferreport.ThesaidWritPetitionwasallowed by this Court by judgment dated 8.7.2008. Accordingly, K. Pradeep Kumar (PW47) took over investigation and renumbered Crime No. 703of2005asRC- 5/S/2008-CBI/SCB/Chennaiand investigationwascommencedlinkingittoCrime No.RC-10/S/2007-CBI/SCB/Chennai. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :21: 6. Addition of accused and tendering of pardon to accused 6.1. Aftertakingovertheinvestigation,Ext.P149reportwasfiledbythe Investigating Officer, CBI, seeking to incorporate Sri. George G. as A5, Sri.Mohanan as A6, Sri. K. Thankamani as A7, Sri. N. Ramachandran as A8, Smt.Sheeja Kumari as A9 and Smt. Sajitha C.S. as A10 in CBI CaseNo.RC10 (S)/2007(CrimeNo.704of2005ofFortPoliceStation).Immediatelythereafter, Ext.P151 report was submitted arraigning Sri.C.R. Heeralal as A11 and Sri.Sureshkumar @ Mani as A12,asaccusedintheabovecase.Itneedstobe noted that Sri. Sureshkumar, who was arraigned as A12, was the person who wascaughtalongwithdeceasedUdayakumarbyaccusedNos.1and2andwas assaulted while at the Police Station.Afterarraigningthemallasaccused,they wereallarrestedon18.09.2010,asisevidentfromExt.P158toP165.Theywere remanded to judicial custody.Onthesamedayitself,theCBIfiledExts.P166to P173, to tender pardon to the aforesaidRaveendranNair(A4), K.Thankamani (A7), Sri. N. Ramachandran (A8), Smt.SheejaKumari(A9), Smt.Sajitha(A10), Sri.C.R.Heeralal(A11),Sri.SureshKumar(A12)andSri.George(A5).Raveendran Nair (A4) had been incorporated as accused by the learned Sessions Judge by invokingSection319oftheCr.P.C,whichorderhadbeenupheldbythisCourt.All theseapplicationswerefiledbeforetheChiefJudicialMagistrateErnakulam.Itis 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :22: stated in the said application that the case was registered pursuant to the directions issued by this Court in W.P.(C) No.24258 of 2007, and that on completion of investigation, a supplementary final report had been filed before the Chief Judicial Magistrate. By separate orders dated 11.10.2010, the Chief Judicial Magistrate tendered pardon to the aforesaid persons, on condition of them making a full and true disclosure of the whole of the circumstances and facts within their knowledge relating to the offence, and every other person concerned. 6.2. Insofar as Crime No. 703 of 2005 registered as RC 5/S/2008 is concerned, the Investigating Officer, CBI filed Ext.P176 Report beforetheChief Judicial Magistrate, Ernakulam seeking to delete Section 41(1)(d) and Section 102 of the Cr.P.C, as mentioned intheoriginalFIR,andtoincorporateoffences underSection120Br/w.Sections331,348,466and474oftheIPC.Itisstated thereinthattheoriginalFIR,connecteddocumentsandMaterialobjectswerein the Court of the CJM, Ernakulam. Thereafter, Ext.P177 report was submitted beforethecourtseekingtoarraignJithaKumarandSreekumarasaccusedNos. 1and2respectivelyinthesaidcrimeandalsofordeletingfromthearrayofthe accused Sureshkumar @ Mani. Reports were then submitted seeking judicial remand of Accused Nos. 1 and 2, who were arrested on 20.04.2009. On 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :23: 19.05.2009, Ext.P181 report was submitted seeking to incorporate Sri.P.Raveendran Nair asthe3rdaccusedandSri.Heeralalasthe4thaccusedin R.C.No.5/S/2008. Sri. Raveendran Nair and Heeralal were arrested on 18.05.2009 at 05.45 p.m. Ext. P184applicationwasthensubmittedforremand of the above accused and police custody was also sought. Immediately thereafter, Ext.P185 report was submitted before the Chief Judicial Magistrate seeking to incorporate Sri. Thankamani (A5), Sri.N Ramachandran (A6), Smt. Sheeja Kumari (A7) and Smt. Sajitha C.S (A8) as Accused Nos. 5 to 8. 6.3. Ext. P186 application was then filed by the Investigating officer, CBI, requesting thattheSection164statementofRaveendranNair(A3)inR.C. 5/S/2008 be recorded. The aforesaid accused was in custody then. Ext. P187 applicationwassubmittedrequestingthatSection164statementofHeeralal(A4) be recorded. Those applications were allowed by the CJM. 6.4. Thereafter, Ext.P189 report was submitted on 16.12.2009 seeking toincorporateT.AjithKumarasA9,Sri.E.K.SabuasA10andSri.T.K.Haridasas A11inR.C.No.5/S/2008.Thereafter,separateapplicationswerefiledbytheCBI seeking to tender pardon to Sri.P. Raveendran Nair, Sri.N. Ramachandran, Sri.D.R.Heeralal,Smt.Thankamani,Smt.SheejaKumariandSmt.Sajithawhich 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :24: applications were allowed by the learned Chief Judicial Magistrate. Ext.P198 application was then filed seeking to incorporate Ajith Kumar (A13) and E.K. Sabu(A14)asaccused.Theaforesaidaccusedwerearrestedon18.08.2010and werereleasedonbailbytheCBIthemselvesonthesamedayasisevidentfrom ExtsP200toP204.TheywerethenproducedbeforetheChiefJudicialMagistrate and Ext.P205 report was submitted to record the 161 statements of all the witnesses. 7. Submission of Final Report 7.1. After completion of the investigation, PW47 submitted the Final Report, and thereafter, R.C. No.5/S/2008 was renumberedasC.P.No.8of2010, and RC No.10/S/07 was numbered as C.P. No.9/2010 on the file of the Chief Judicial Magistrate Court, Ernakulam. 7.2. The cases were then committed to the Principal Sessions Court, Ernakulam on 12.12.2011. After removing the approvers from the array of the accused, in R.C.No 10/S/2007 the accused were Jitha Kumar (A1), Sreekumar (A2),Soman(A3),T.AjithKumar(A4),E.K.Sabu(A5).InR.C.No5/S/2008,the accusedwereJithaKumar(A1),Sreekumar(A2),T.AjithKumar(A4),E.K.Sabu (A5) and T.K.Haridas (A5).ThePrincipalSessionsCourtmadeoverthecasesto 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :25: the CBI Court, Ernakulam and thecaseswerenumberedasS.C.No.25of2012 and S.C.No. 26 of 2012, respectively. Thereafter, the cases were transferredto the Special Judge (SPE/CBI) at Thiruvananthapuram as per Order dated 14.03.2012 of thisCourtontheadministrativeside.Thecaseswereaccordingly numbered as S.C. No. 916 of 2012 and S.C.No. 917of2012.SCNo.916/2012 was clubbed with SC 917/2012. 8. Petition filed by CBI to quash charge laid by the CBCID and to eschew evidence 8.1. After the submission of the final report, the CBI approached this Court and filed Criminal M.C. No. 4957 of 2010, seeking to quash the charge framed by the learned Sessions Judge (Fast Track Court-III), Thiruvananthapuram, in S.C. No. 1542 of 2006, and to order a de novo trial based on the supplementary report filed in RC10(S)/2007/CBI/SCB/Chennai.It was contended in the petition that a de novo trial ought to be ordered on the basis of the supplementary charge sheet filed by the CBI, withadirectionthat theevidencegivenbycertainaccusedpersons,whoweresubsequentlyaccepted as approvers and examined as witnesses in the previous trial, as well as their statementsrecordedunderSection161Cr.P.CbythelocalpoliceandtheCBCID, 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :26: shouldnotbeconsideredinthefreshtrial.ThelearnedSingleJudgerejectedthe prayer, holding that a de novo trial, as sought by the CBI, eschewing the evidence recorded in theprevioustrialandafterquashingthechargeframedin S.C. No. 1542 of 2006 by the Additional Sessions Court (Fast Track-III), Thiruvananthapuram, was not permissibleinlaw.TheCriminalM.C.filedbythe CBI was dismissed. 9. Joint Trial of the cases ordered 9.1. BeforetheSessionsCourt,theSpecialPublicProsecutorfortheCBI filed Crl.M.P.No. 58of2014andCrl.M.P.No.59of2014seekingjointtrialofthe two cases, and the said petition was allowed. The learned Sessions Judge orderedjointtrialinS.C.No.917of2012byaddingthe5thaccusedHaridasfrom S.C.No.916of2012.ThelearnedSessionsJudgeswasoftheviewthataccused Nos. 1 to 3 in S.C.No. 917 of 2012 could be tried for the offences punishable under Sections 323, 331, 348 and 302 r/w. Section 34 of the IPC, and all accusedinS.C.No.917of2012andA5inS.C.No.916of2012couldbetriedfor theoffencespunishableunderSections120Br/w.Section201,167,466and474 of the IPC. The court also ordered that the offences punishable under Section 120Br/w.Section193and116oftheIPCcouldbeconsideredafterthedisposal 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :27: of S.C. No. 917 of 2012. Being aggrieved, Soman (A3) and Haridas (A6) filed Crl.M.C. No.3189 of 2014 and Crl. M.C.No.3083 of 2014 beforethisCourt.This Courtupheldtheorderofthetrialcourtclubbingthechargeandaddingthe5th accusedinS.C.No.916of2012astheadditional7thaccusedinS.C.No.917of 2012. However, the other part of the order relegating the trial of offences punishable under Section 120B r/w. Section 193 and 116 of the IPC, after disposal of S.C.No. 917 of 2012 was set aside, and directions were issued to consider the matter afresh. 9.2. Pursuant to the same, the 4th accused, Mohanan, filed an application seeking discharge, and the said petition was allowed, and the 4th accused was discharged of the offences punishable under Sections 120B r/w. Sections193and116oftheIPC.ThechargeinS.C.No.916of2012wasclubbed with S.C. No. 917of2012,andthe5thaccusedHaridasinS.C.No.916of2012 wasaddedasanadditional7thaccusedinS.C.No.917of2012.Therefore,after the discharge of the 4th accused Mohanan, 6 persons are facing trial. 10. Evidence let in 10.1. Before the Court of Sessions, as many as 47 witnesses were examinedbytheprosecutionasPWs1to47andthroughthemExts.P1toP207 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :28: were exhibited and marked. Material objects were produced and identified as MOs 1 to MO13 series. After the conclusion of the prosecution evidence, the accused Nos. 1, 2 and 4 to 6 were examined under Section 313 of the Cr.P.C. This is because the accused No. 3 had died pending trial. Thereafter, as there was no scope for acquitting the accused under Section 232 of the Cr.P.C, they were called upon to enter upon their defence. On the part of the1staccused, DW 1 and DW2 were examined, and Exts.D1 to D15 were marked. 11. Findings of the learned Sessions Judge 11.1. The learned Sessions Judge found A1 (Jitha Kumar) and A2 (Sreekumar) guilty of custodial torture leading to murder, and of conspiracy to falsify records and cause disappearance of evidence. A4 (T. Ajith Kumar), A5 (E.K. Sabu), and A6 (T.K. Haridas) were found guilty of conspiracy tofabricate records and to suppress material evidence. However, all the accused were acquitted of offences under Sections 466 and 474 IPC relating to forgery. 11.2. Inarrivingatthefindingofguilt,thelearnedSessionsJudgeplaced reliance on the evidence of PW1 (Suresh Kumar),afriendofUdayakumar,who was also detained by the police. Though he turned hostile during the trial, his initial complaint (Ext.P9) detailing the torture, as well as his early supportive 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :29: testimony,werefoundcrediblebythecourt.HisidentificationofA1andA2inthe Test Identification Parade (TIP) was corroborated by PW38 (the learned Magistrate) and PW46 (Jailor). 11.3. The court also placed substantial reliance on the testimony of PW21 (Rajani), a Police Constable on VHF duty, who testified that A1 and A2 brought Udayakumar and PW1 to the station at around 2:30 p.m.. She further deposed that Udayakumar was taken to the Circle Inspector's office and later returned in a battered condition. 11.4. The court additionally relied on the evidence of DW2 (Mohanan V.P.), who stated that he had heard individuals being interrogated in the Circle Inspector's office around 3:00-3:30 p.m.. 11.5. Significant weight was given to the testimony of PW5 (Thankamani),PW15(RaveendranNair),PW16(Sajitha),PW17(SheejaKumari), and PW18 (Heeralal), police personnel who were tendered pardon and turned approvers.Thesewitnesseshadnotsupportedtheprosecutionintheearliertrial but later deposed that A1 and A2 had brought Udayakumar and PW1 to the station, and that Udayakumar was taken to the Circle Inspector's office and brought back in a severely injured condition. Their explanation that they had 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :30: beencompelledtotestifyinaccordancewiththepolicerecordsintheearliertrial underpressurefromseniorofficerswhowerethemselvesaccusedwasaccepted by the court. The recovery of the GI pipe (MO10), which had bloodstains and wasseizedfromthescene,andthepresenceofbloodonMO11(woodenbench) and MO12 (iron cot) found in the Circle Inspector's office, were found to corroborate the prosecution's case of custodial torture. 11.6. The learned SessionsJudgefurtherheldthatacriminalconspiracy was hatchedamongA1,A2,A4,A5,andA6afterUdayakumar'scustodialdeath onthenightof27.09.2005,withtheintenttofabricatefalserecordstoshieldA1, A2, and A3 from legal punishment. It was held that the evidence established, beyond anydoubt,thatA4,A5,andA6gatheredattheFortPoliceStationafter Udayakumar'sdeathandorchestratedthecover-upbymanipulatingtheGeneral Diary (GD), fabricating the FIR (Ext.P17) and mahazar (Ext.P18), making false entriesinthePropertySearchRegister(PSR-Ext.P20),arrestmemos[Exts.P22, P28(a), P28(b)], arrest register (Ext.P27), inspection memos (Exts.P21, P24), and remand application (Ext.P23), all of which were falsified to support the fabricated narrative. 11.7. Relying on the evidence of PW5, PW15, PW16, PW17,andPW18, 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :31: thecourtheldthatA4,A5,andA6hadthreatenedandcoercedthemintomaking false entries in official records and personal notebooks, and into giving false testimony in court. It was also held that the accused managed to destroy key material objects used in the torture, including a bamboo cane and a towel (thorth). 12. Submissions of the learned counsel 12.1. Sri. P.Vijayabhanu, the learned counsel appearing for the 1st accused, advanced the following contentions: a) The material witnesses whose evidence was relied on by the learned SessionsJudgetoarriveatafindingofguiltwasearlierexaminedbefore the AdditionalSessionsCourt(FastTrack-III),Thiruvananthapuramand had stated a different version before the court. The said version corresponded to therecordsmaintainedinthePoliceStation. However, afterentrustingtheinvestigationwiththeCBI,thebureauactedagainst the directions issued by the Division Bench and conducted re-investigation. The material witnesses were arrayed as accused and latergivingthemcertainassurances,theyweremadeapprovers. Those witnesses under threat by the CBI and to escape being an accused 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :32: deposed a different version before the court in the subsequent trial whichtookplaceafteralmost6years. Accordingtothelearnedcounsel, as held by this Court in Viswanathan v. StateofKeralaandOrs.1, while evaluating the testimony of approvers the courts are required to considerthecircumstancesunderwhichtheywerearrested,thespecific role attributed to them in the charge, the actual role played in the commissionoftheoffenceandthetimingandmannerinwhichthesaid witness chose to turn approver. b) Relying on the law laid down by this Court in State of Kerala v Anil Kumar@Jacky2,itisarguedthatwhileconsideringtheevidenceofPW 5, PW15 to18whowereinitiallyarrayedasaccusedandlatertendered pardon, the Court failed to satisfy the double test viz., whether their evidence was reliable and whether the evidence has been sufficiently corroborated. It was argued that the Court ought to have found corroborationoftheapprover'stestimonyfromindependentsourcesand one approver's testimony could not have been used to corroborate the testimony of another approver. 1 [ 2025 :KER: 42302] 2 [2 024 (3) KLJ 995] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :33: c) The learned Senior Counsel would then refer to the court charge and it was argued that the specific charge against the 1st accused is that he had tortured Udayakumar forthepurposeofextortingaconfessionand thereby causing death. It is submitted that the charge does not specificallystatethatthe1staccusedhadtheintentionofcausingdeath orknowledgethatbyhisactdeathwouldbecausedtothedeceasedand if that be thecase,hecouldnothavebeenfoundguiltyfortheoffence of murder. d) The learnedSeniorcounselwouldrelyontheobservationsmadebythe Apex Court in Shankar Kisanrao Khadev.StateOfMaharashtra3, wherein the Hon'ble Court had analysed all past precedents including Bachan Singh v. State Of Punjab4, Machhi Singh v. State of Punjab5, Mohd. Chaman v. State (NCT Of Delhi)6.,SurendraPal Shivbalakpal v. State Of Gujarat7, State Of Maharashtra v. Mansingh8 andStateOfRajasthanv.KashiRam9 anditwasargued thatinanyviewofthematter,thecasewouldnotfallundertherarestof 3 [(2013) 5 SCC 546] 4 [( 1980) 2 SCC 684] 5 [(1983) 3 SCC 470] 6 [(2001) 2 SCC 28] 7 [(2005) 3 SCC 127] 8 [(2005) 3 SCC 131] 9 [(2006) 12 SCC 254] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :34: the rare category warranting capital punishment. It is submitted that if the prosecution case is accepted in its entirety, it can be seenthatthe evidenceletin,whichispurelycircumstantialinnature,wouldnotreveal that1staccusedhadanyintentiontomurderUdayakumarorthathehad any knowledge in inflicting any injuries which are sufficient in the ordinarycourseofnaturetocausedeath.Itisfurthersubmittedthatthe 1st accused had no previous criminal record or isthereanymaterialto conclude that he would be a threat to the society. Neither the "Crime test" nor the "Criminal test" would be satisfied and under no circumstances can the case be put in the category of a rarest of rare case. 12.2. Sri.S Rajeev, the learned counsel appearing for the 4th accused, advanced the following submissions. a) The4thaccusedhadjoinedthePoliceStationasaConstableonlyafew dayspriortotheallegedincidentandtheevidencedidnotrevealthathe was ever informed about the custody of Udayakumar. b) Allthewitnesseswhoseevidencewasreliedonforarrivingatthefinding of guilt were examined before the Sessions Court during the previous 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :35: trial which was stayed by this Court. None of the witnesses deposed about the involvement of the 4th accused. After taking over the investigation pursuant to orders issued by this Court, the CBI, against the spirit of thedirections,conductedareinvestigationandfiledafresh final report before the Court.Thewitnesseswhowereearlierexamined were arrayed as accused and they were then tendered pardon under threat that they shall narrate the case set up by theCBI.Thereafter,a freshtrialwasconductedwhereinallthewitnessescameforwardwitha newcase.ThoughwhiledisposingofCrl.M.C.No.4957of2010,filedby the CBI, this Court had opined that after the submission of the supplementary report by the CBI, the trial court may have to alter the charges and had ordered testimony of the witnesses previously examinedwillhavetobeappreciatedinlightoftheevidenceproposedto be adduced in the subsequent trial by the trial court, the learned Sessions Judge ignored this directive and proceeded to convict the accused solely relying on the evidence tendered in the subsequent trial. (c) The learned counsel criticised the manner in which the CBI chose to presentitswitnessesduringtrial.Itwaspointedoutthattheevidenceon record unequivocally establishes that severalotherseniorpoliceofficers 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :36: werepresentinthePoliceStationafter7:30p.m.ontherelevantday.If that were indeed the case, there was no plausible justification for the non-examination of material witnesses who were expressly cited in the charge, namely CW9 (Anilkumar), CW11 (Satheesan), CW13 (Binukuttan), CW14 (Kamaludeen K.S.), CW15 (Arunkumar), CW33 (E.Shareefudeen), CW34 (Mohammed Shafi), CW37 (Xavier L. in RC 10/S/07/CBI/SCB/Chennai), and CW20 (Madhusoodhan), CW23 (Shibeerkhan P.K. in RC 5/S/08/CBI/SCB/Chennai, as well as one Mohannan Chettiar). Instead of initiating proceedings against PW5, PW15, PW16, and PW17, who are alleged to have manipulated official records and who were admittedly present in the police station at the relevant time, the CBI, it is contended, has deliberately fabricated evidenceinanattempttofastenculpabilityuponthesuperiorofficersfor the unfortunate incident. This is more so because the persons who benefitedbychangingthetimeandmanipulationoftherecordswerethe officers who were present at the PoliceStation and none else. d) Theevidenceadducedwillnotestablishthatthe4thaccusedtookpartin any conspiracy or that the alleged weapons, namely the 'cane' and 'thorthu' alleged to have been used by the accused Nos. 1 and2were 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :37: destroyed by anyone. Furthermore, the manipulation, if any of the documentswerecommittedbytheresponsibleofficersthemselvesandif that be the case, the offence under Section 167 of the IPC will notbe made out. e) The failure of the trial court to evaluate the evidence of the witnesses who were examined during the earlier trial is fatal. f ) Reliance was placed on theevidenceofPW3andPW5anditispointed outthatthefactthatUdayakumarwassickwasbroughttothenoticeof the 5th accused only after 10.30 p.m.. The notebooks of the officers including the sentry were in fact collected by PW5andnoneelse.PW5 has no case that he had occasion to inform the superior officersabout thehealthconditionofUdayakumaratanypointoftime. Itissubmitted that a proper evaluation of the evidence would not reveal that the 4th accusedwasawareoftheillegalcustodyofUdayakumarandtherecords alsowillnotrevealthathewasinformedabouttheincidentthroughVHF or otherwise. g) ItisurgedthattheingredientsofSection167orSection120BoftheIPC have not been made out. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :38: h) The charge framed by the learned Sessions Judge is not in order. In order to elucidate the principles reliance was placed on a judgment of this Court rendered by a Division Bench in Rajappan v. State of Kerala10. i) To highlight the procedural flaws committed by the learned Sessions Judge in ignoring the final report laid by the Crime Branch and the evidencerecordedrelianceisplacedonthejudgmentsinVinayTyagiv Irshad AliAliasDeepak&Ors.11 andVinubhaiHaribhaiMalaviya v State of Gujarat12. 12.3. Sri. Pirappanagode Sudheer, learned counsel for the 5th accused, advanced the following submissions: a) The records disclose that Crime No.703 of 2005 of Fort Police Station wasregisteredat8:00p.m.on27.09.2005bySub-InspectorRaveendran Nair (PW15) under Sections 41(1)(d) and 102 of the Cr.P.C against Udayakumar and Suresh Kumar, based on Exts. P18 and P19. Raveendran Nair investigated the matter on 28.09.2005, questioned 10 (1981 KLT 41) 11 (2 013) 5 SCC 762 12 (2019) 17 SCC 1 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :39: severalwitnesses,andthereaftertheinvestigationwastakenoverbythe Narcotic Cell. At no stage, either before the Narcotic Cell ortheCBCID on 10.10.2005, did he state that the case registration, General Diary entries, or otherdocuments,includingtheremandapplicationofSuresh Kumar, were prepared at the instigation of the 5th accused along with the Circle Inspector and Assistant Commissioner of Police. b) PW15,RaveendranNair,admittedpreparingExt.P23remandapplication dated27.09.2005andentrustingUdayakumarandSureshKumarat8:30 p.m. to sentry P.C. Ramachandran, whowasondutyfrom8:00p.m.to 10:00 p.m. Ext. P4 General Diary (MO5 in S.C.No.1542/2006)records that Udayakumar and Suresh Kumar were interrogated at the Circle Inspector's office until 8:00 p.m., and that he remained at the Police Station until 9:00 p.m. on 27.09.2005. Thiswouldgoagainsttheentire case set up by the prosecution. c) As regards further investigation, the learned counsel contended that pursuanttothedirectionsofthisCourt,theCBIwasempoweredonlyto conduct further investigation in both Crime No.704 of 2005 and Crime No.703 of 2005. In both cases, report had been laid before the 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :40: jurisdictional Magistrate. The trialhadcommencedinCrimeNo.704of 2005 and as many as 34 witnesses had been examined. Since both crimes arose from the same transaction andwereinseparable,theonly lawfulcoursewastofileasupplementalreportaftersuchinvestigationin Crime No. 704 of 2005 before the Additional Sessions Court (Fast Track-III), Thiruvananthapuram, and likewise file a supplemental report under Section 173(8) Cr.P.C. in Crime No. 703 of 2005 (RC 5/S/2008/CBI/SCB/Chennai)beforetheMagistrateCourtwheretherefer report was laid. However, contrary to the aforesaid mandatory requirement, the CBI filed the charge sheet in RC 10/S/2007/CBI/SCB/Chennai before the Chief Judicial Magistrate, Ernakulam under Section 173(8) CrPC, allegingoffencesunderSections 323, 331, 348, 302 r/w. Section 34 IPC and Section 120B r/w.Sections 201, 116, and 193 IPC as against A1 to A3, and under Sections 120B r/w.Sections201,331,348,302,116,and193IPCasagainstA4toA14. Theappellantandthe4thaccusedwerearrayedasaccusedNos.13and 14, while Raveendran Nair figured as the 4th accused alongwithother subordinate Police Officers of the Fort Police Station, Assistant Sub Inspectors, Head Constables, and Women Constables, who were 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :41: responsible for making entries in the Station records connected with Crime No. 703 of 2005. The CBI, in a calculated move to fabricate evidenceandfalselyimplicatetheappellant,initiallyarrayedA4toA14in additiontotheprincipaloffenders,A1toA3(Jithakumar,Sreekumar,and P.C.Soman),againstwhomthecoreallegationwascustodialtortureand murder of Udayakumar. Despite theabsenceofevenaprimafaciecase against the 5th accused, the CBI included various officers as accused, first adding P. Raveendran Nair and C.R. Heeralal on 19.05.2009; then Thankamani, Ramachandran, Sheeja Kumari,andSajithaon22.07.2009 in RC 5/S/2008/CBI/SCB/Chennai; and subsequently, on 23.07.2009, againincludingP.RaveendranNair,Heeralal,andSureshKumar,followed by George, V.P. Mohanan, Thankamani, Ramachandran, Sheeja, and SajithainRC10/S/2007.StatementsunderSection164Cr.P.Cwerethen procured from these persons, who were coerced into falsely deposing thattheStationrecordsweremanipulatedattheinstanceofthe4thand 5th accused, withtheobjectofscreeningtheprincipaloffenders.These coerced statements formed the sole foundation of the charges levelled againstthe4thand5thaccused.Itissubmittedthatthecourseadopted by the CBI is against the directions issued by this Courtwhileordering 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :42: further investigation and the principles of law laid down by the Apex CourtinVinayTyagi(supra),DharamPalv.StateofHaryana13 and Vinubhai(supra). d) When the supplementary report was required to be filed before the Additional Sessions Judge (Fast Track Court- III), Thiruvananthapuram, and when that court alone possessed thelawfulauthoritytoadjudicate upon the two conflicting reports, one submitted by the CBCID and the other by the CBI, the very transfer of the case to the Special Court (SPE/CBI), Thiruvananthapuram, was patently illegal. Once the latter court lacked jurisdiction to entertain the matter, all proceedings undertakenthereafter,subsequenttothevalidcommittalpendingbefore the Additional Sessions Judge (Fast Track-III), Thiruvananthapuram, stand vitiated and are void ab initio. e) The learned counsel argues that there cannot legally be two or more committalsinrespectofthesamecase,evenwherefurtherinvestigation has been conducted, irrespective of the status or identity of the investigatingagency.Accordingtohim,theSpecialJudge(SPE/CBI)had noauthoritytoprosecutetheaccused,letaloneactuponordersgranting 13 [(2014) 3 SCC 306] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :43: pardonthatwereissuedbyanincompetentcourt.Theentireprocessof granting such pardon, accordingtothelearnedcounsel,wasvitiatedby procedural illegality, lack of jurisdiction, and absolutenon-applicationof mind. f ) It is submitted that, apart from the tainted, false, and fabricated oral versions extracted under Section 164 Cr.P.C., thereisnothingonrecord toevenprimafaciesuggesttheinvolvementoftheappellantoraccused Nos. 4 to 6. No documentary evidence worth the name exists to corroboratetheseallegations.Significantly,thesestatementsweremade afteralongdelayduringwhichperiodtheverysamepersonshadgiven multiplestatementstosuccessiveinvestigatingofficersinthesamecrime and had deposed on oath during the trial of S.C. No. 1542 of 2006, without oncealleginganyinstigationorinfluenceinconnectionwiththe registration of Crime No. 703 of 2005. g) It is forcefully argued that the conduct of the CBI in implicating the accused Nos. 4 to 6 is a gross abuse of process. Initially, subordinate police officers were arrayed as accused; some were even remanded to custody. UnderthethreatofcontinuedimplicationintheSessionsCase, 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :44: and succumbing to such coercive tactics, they werecompelledtomake statementsunderSection164Cr.P.Cfalselyimplicatingtheappellantand others. Once theCBIsecuredthesemanufacturedstatements,itmoved applications under Section 306 CrPC to tender pardon to these witnesses, converting them into approversandensuringtheirtestimony would be tailored to the CBI's version. The mala fides inthiscourseof action are writ large, revealing that the entire exercise was driven by oblique motives rather than a genuine quest for truth. h) The learned Chief Judicial Magistrate had no jurisdictionorauthorityto entertainpetitionsunderSection306CrPC,muchlesstograntpardonto the aforesaid persons. Once the matter had been committed to the Sessions Court and thetrialcommencedonthebasisofthefinalreport filed under Section 173(2) Cr.P.C by the CBCID, the power to tender pardon vested exclusively with the Sessions Judge under Section 307 Cr.P.C. Consequently, the orders passed by theChiefJudicialMagistrate granting pardon are without jurisdiction, null, and voidabinitio.Atany ratetheCBIcouldnothavesoughttograntpardontoRaveendran,who wasarrayedasaccusedNo4,becausehe wasalreadymadeanaccused invoking Section 319 Cr.P.C. by the Trial Court, whichorderwasupheld 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :45: by this Court. 13. Sri. S.Sreekumar,thelearnedcounsel,asinstructedbySri.Martin Jose, the learned counsel, who appeared for the 6th accused, took usthrough thematerialsandrecordandalsotheevidencetenderedbythewitnessesinthe case and made the following submissions: a) TakingusthroughthedepositionsofPW1,PW5,andPW15toPW18,and PW21,itisurgedbySri.SreekumarthattheCBIhadthrownestablished procedure to the winds and fabricated a false narrative wholly at variance with the final reportsubmittedbytheCBCID.Hedrewspecific attention to the manner in which PW15, Raveendran, who had earlier been examined as PW11, was subsequently arrayed as an accused by invoking Section 319 of the Cr.P.C., which order was confirmed by this Court in W.P.(C) No. 24258 of 2007. He further argued on the legal implicationsoftheorderpassedbyalearnedSingleJudgeofthisCourt, dismissing the CBI's petition seeking to efface the earlier records and evidence. According to him, the order permitted only a "further investigation" and not a "fresh investigation" or "reinvestigation," whereas the CBI, inthepresentcase,hadinfactproceededtoconduct 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :46: what was effectively a reinvestigation, thereby acting in excess of its authority and in contravention of the Court's directions. b) ThelearnedcounselalsoplacedrelianceonthejudgmentoftheHon'ble SupremeCourtinStatethroughCentralBureauofInvestigationv. Hemendhra Reddy & Another14, to emphasise the well-recognised distinction between "further investigation" and "reinvestigation." It was arguedthat,contrarytothedirectionsissuedbythisCourt,theCBIhad, in fact, undertaken a reinvestigation in the matter, thereby acting in excess of its mandate and in breach ofthejudicialordergoverningthe scope of its powers. c) Relying on the observations of the Hon'ble Supreme Court in A. Devendran v. State of Tamil Nadu 15, the learned Senior Counsel contendedthat,asonlyafurtherinvestigationhadbeenorderedandthe trial pending before the Sessions Court had been stayed, the CBI was legallyboundtofileanyapplicationunderSection307oftheIPCbefore the Additional Sessions Court (Fast Track III)Thiruvananthapuram,and not before the Chief Judicial Magistrate, Ernakulam. It was urged that 14 [ 2023 SCC ONLINE SC 515] 15 [(1997) 11 SCC 720] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :47: the grant of pardon in the present case, having been made by acourt lacking jurisdiction, standsvitiatedandconstitutesadefectwhichisnot amerecurableirregularitybutasubstantiveillegalitygoingtotherootof the matter. d) The learned counsel further referred to the cross-examination of PW5, wherein it was elicited that he was not present when the 6th accused allegedly had a conversation with PW15, andthathisknowledgeofthe samewaspurelyhearsay.Accordingtothelearnedcounsel,neitherPW5 nor PW15, in theirtestimoniesbeforetheCourt,madeanyreferenceto the involvement of A6, thereby rendering theallegationagainstthe6th accused unsubstantiated by direct evidence. e) Non-examination of Shaheer, the officer who had gone to fetch RaveendranNairandMohananChettiyar,whowassummonedtoprepare the draft FIR, is fatal, contends the learned counsel. f ) Lackofcorroborationoftheevidencegivenbyapproversbyindependent evidence is yet another argument advanced by the learned counsel. g) The learned counsel would then take us through the evidence ofPW5, 15,16,17,18,21and47,anditisarguedthattheevidencepointingto 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :48: the involvement of the 6th accused is shaky and could not have been relied upon. 14. Sri. K.P. Satjeesam, the learned Senior Counsel appearing for the CBI, advanced the following submissions: a) ThisisacasewhereinapersonwastakenintocustodybyaccusedNos.1 and2andwastorturedbrutallywiththeassistanceofA3resultinginhis death on the same day at the Medical College Hospital. Since the incident took place within the four walls of the office of the Circle Inspector, the prosecution hadtorelyontheevidenceofPoliceOfficers tobringoutthetruth.However,allmeasuresweretakenbytheofficers to screen the offender and tomanipulatetherecordsmaintainedinthe police station. The investigation conducted earlier by the CBCID was a farce and it was after taking note of the same that this Court had entrusted the investigation with the CBI. The CBI conducted a comprehensive investigation and found the involvement of the Senior Police Officers and the passiveinvolvementoftheofficerswhowereon duty. As many as 8OfficerswhowereondutyapproachedtheCBIand requested that they be made approversandundertookthattheywould 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :49: speak the truth. Itwasinthesaidcircumstancesthatapplicationswere filed to tender pardon to the said accused which was allowed by the Court on conditions. It is submitted that the approvers who were examined as PW1, PW3, PW5, PW15 to PW18 came before court and statedindetailthemannerinwhichtheaccusedNos.1and2 hadtaken into custody of Udayakumar and was tortured by A1 to A3. They had also stated the manner in which accused Nos. 4 to 6 threatened and forcedtheirsubordinatePoliceOfficerstonarrateafalseversionintune with the fabricated records prepared at theirinstance.Accordingtothe learnedcounsel,thelearnedSessionsJudgehadrightlyreliedupontheir evidence to arrive at the finding of guilt. b) The contention advanced by the learned counsel appearing for the appellants that the CBI had violated the directions issued bythisCourt and conducted a re-investigation was vehemently denied. According to the learned counsel, after taking over investigation as ordered by this Court,theCBI,aspertheprocedure,isrequiredtore-registerthecrime andsubmitareportbeforetheCJM,Ernakulam,whichisthedesignated court as per GovernmentNotificationdated2.12.1974.Aftercompleting the investigation, the final report was laid and the CJM Ernakulam 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :50: committed the case to the Court of Session, Ernakulam. The Sessions Court made over the case to the CBI Special Court, Ernakulam. After establishment of the CBI Court at Thiruvananthapuram, the Case was transferred to the CBI, Special Court, Thiruvananthapuram by order dated 14.3.2012. c) Insofar as the contention that the CBI had erred in not submitting the Supplementary report before the Court where S.C.No.1542/2005 was pending, it is submitted that this Court had stayed the proceedings to avoid conflict of decisions. It is submitted that when investigation was handedovertotheCBI,theycanonlyfollowtheirprocedure,whichwas done in the instant case. d) There is no irregularity in the procedure followed by the Special Judge (SPE/CBI)intryingthematteronthecasebeingcommittedbytheCJM, Ernakulam. The accused Nos. 4 and 5 had approached this Courtand had preferred Crl.R.P.No. 1170 of 2015 challenging the procedure followed by the CBI in registering a Crime and in submitting a supplementaryfinalreportbeforetheCJM,Ernakulam. Thecommittalof the case totheCourtofSession,Ernakulam,wasalsochallenged. This 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :51: Court rejected the prayer, taking note of the law laid down in Vinay Tyagi (supra) and held that the practice of the CBI to register afresh FIRandthefilingofthefinalreportbeforetheChiefJudicialMagistrate, Ernakulam, was legal. In view of the said order,theappellantscannot be heard to contend that any prejudice has been caused. e) Itisfurthersubmittedthatthe3rdaccused,oneSoman,hadapproached this Court and had filed Crl.M.C.Nos.3189 of 2014 and 3083 of 2014 challenging the order passed by the learned Sessions Judge ordering joint trial of S.C.No.916 of 2012 and S.C.No.917 of 2012 and also the order arraigning him as the 7th accused in S.C.No.917 of 2012. This Court, after considering the facts and circumstances, disposed of the matter by judgment dated 09.01.2015 with specific directions to the learned Special Judge to proceed with the matter in terms of the directions issued in the order. Thereafter, the accused No. 4 (Ajith Kumar) and accused No.5 (Sabu) had approached this Court and had filedCrl.R.P.No.1170of2015seekingtoquashthecommittalproceedings andforquashingthecharge.ThisCourt,byjudgmentdated31.3.2016in Crl.R.P.No.1170 of 2015, repelled the contentions, holding that the registration of crime by the CBI and the submission of the final report 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :52: before the Jurisdictional Magistrate is legal. f ) According to the learned counsel, the principles of law laid down in Devendran (supra) were not violated as the reports were filed before the CJM, Ernakulam, and as the stage was before committal, only the CJM could have considered the application for tender of pardon. g) It is urged that the learned SessionsJudgehadevaluatedtheevidence in a proper manner and has arrived at the finding of guilt. It is also arguedthattheoffencecommittedbythe1staccusedissoheinousthat aninnocentmanwastakenintocustodyandhisthighskneadedwithan iron rod, thattheoffencewouldfallintotherarestofrarecategoryand no interference is warranted. 15. Wehavecarefullyconsideredthesubmissionsadvancedandhave carefully gone through the records. 16. Whether the trial can be held to be vitiated 16.1. We shall first deal with the contention advanced by the counsel appearingfortheaccusedthattheCBIhasactedagainstthedirectionsissuedby this Court while ordering further investigation and the trial and conviction has 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :53: been vitiated. We shall also consider the contention as regards the legality of registering a fresh FIR and submitting final report before the Sessions Court, Ernakulamwhenwhatwasorderedwasfurtherinvestigationinacasewheretrial had commenced before the Sessions Court which was stayedforsubmissionof the supplementary report. 16.2. As stated earlier, final report was filed by theCBCIDinCrimeNo. 704of2005registeredattheFortPoliceStationbeforetheJudicialMagistrateof First Class-III, Thiruvananthapuram and committal proceedings was initiatedas C.P.No 21 of 2006. The accused were Jitha Kumar (A1), Sreekumar (A2) and Soman(A3).Theywerechargedforhavingcommittedoffencespunishableunder Sections 331, 302 r/w. Section 34 of the IPC. The case was committed to the CourtofSession,ThiruvananthapuramandthesamewasmadeovertotheCourt oftheAdditional SessionsJudge(FastTrack-III),Thiruvananthapuram.InCrime No.703 of 2005, a refer report was filed by the police. 16.3. Trial commenced in S.C.No.1542 of 2006, and as many as 34 witnesses wereexamined.RaveendranNair,whowasexaminedasPW15inthis case, was examined as PW11 in S.C.No.1542 of 2006. The learned Sessions Judge invoked Section 319 of the Cr.P.C. and felt that he was also intimately 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :54: involved in the commission of the offence. The Sessions Court proceeded to array him as the 4th accused in the case. This order was challenged by Raveendran Nair before this Court by filing Crl.R.P. No.2902 of 2007. In the meantime, the mother of the deceased approachedthisCourtandfiledW.P.(C) No.24258 of 2007, requesting to hand over the investigation to the CBI. Both these matters came up before a learned Single Judgewhofeltthatthoughthe case was one which the CBI oughttocarryoutinvestigation,inviewofcertain precedentsthatonlytheagencywhichcarriedouttheearlierinvestigationcould carry further investigation referred the matter for an authoritative pronouncement. The matter was heard by a Division Bench of this Court. The relevantportionofthejudgmentinJ.PrabhavathiammavStateofKerala16 reads as under: "17......After going through the evidence already on record, we have already held that the Court was justified on evidence adducedbeforeitinimpleadingthereviewpetitionerasanaccused. We see no infirmity in the orderpassedunderS.319.Itcannotbe statedthatthereisnoprimafaciecaseagainsthim.Hence,Crl.RP is dismissed. But, wearenotexpressinganyopiniononthemerits of the matter as it is for the TrialCourttodecidethematterafter consideringtheevidence.Wehavealreadyfoundthatthiscaseisa fit case which CBI should conduct further investigation as police 16 (2008 (1) KLJ 9) 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :55: officersareaccusedinthecaseandfromtheavailablematerials,we are of the prima facie opinion that in this case colleagues in the policeforcearemoreinterestedinprotectingtheaccusedinsteadof doingjusticeorconductingproperinvestigationaccordingtolaw.It is true that in all cases where CBI enquiry is ordered it is not necessarytostaythetrialwhichisinprogress.But,inthenatureof the case, it isnecessarythatfurtherproceedingsoftheTrialCourt needbestartedonlyafterCBIfilesfurtherreportanditisafitcase to allow the writ petition filed by the mother of the deceased by referring the matter to CBI. Hence, we direct the CBI to conduct further investigation as expeditiously as possible." (emphasis supplied) 16.4. For clarity, we shall summarise the general observations made by this Court in the above judgment: a) If the facts warrant, to do justice and to install confidence in the public mind, in appropriate cases, the High Court can allow the C.B.I.tofurther investigate the crime. b) There is no infirmity in the order passed under section 319 of the Cr.P.C.arraying Raveendran Nair as the 4th accused. c) Thoughordinarily,incaseswhereCBIenquiryisordered,itisnotnecessary to stay the trial which is in progress, in the nature of the case, it is 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :56: necessary that further proceedings of the trial court need be started only after CBI files further report. 17. This Court, in clear terms, directed the CBI to carry out further investigationandnotre-investigation.WhilepassingthejudgmentthisCourtwas guidedbytheobservationsinGudalureM.JCherianAndOthersv.UnionOf India And Others17, wherein in identical circumstances, further investigation was ordered in a case pending before the Sessions Court and the Apex Court alsorejectedtheprayertotransferthecriminalcasefromthefileofIXAdditional Sessions Judge, Moradabad to some other court. In the light of the above, all that the CBI could have done is to conduct further investigation and submit a supplementary report before the Additional Session Judge (Fast Track-III), Thiruvananthapuram, where S.C.No.1542 of 2006 was pending. 18. Instead of complying with the directions issued by this Court,the CBI reregistered fresh FIR and then proceeded to array the officers who were presentinthePoliceStationonthesaiddayandwhohadallegedlymanipulated therecordsasaccused.Thereafter,applicationswerefiledbeforetheMagistrate Court to tender pardon to them on condition that they make a full and true disclosureoftheeventsandtheinvolvementofthepresentaccused.Pardonwas 17 [(1992) SCC 1 397] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :57: granted by the CJM Ernakulam, and thereaftertheinvestigationwascompleted and a final report styled as a supplementary report was laid before the CJM, Ernakulam arraying additionallytheaccusedNos.4to6inthisCase.Committal proceedingswereinitiatedbytheCJM,ErnakulambynumberingR.C.5/S/2008as C.P.No.8/2010 and R.C.10/S/2007 as C.P.No.9/2010 on the file of the Chief JudicialMagistrateCourt,ErnakulamandthecaseswerecommittedtotheCourt of Session. 19. It was after ignoring the earlier committal that a fresh committal orderwaspassedbytheCJM,Ernakulam. TheSessionsCourt,Ernakulam,made overthecasetotheSpecialJudge,CBI,Ernakulam. Whileso,intermsofO.M. No.61340/2009dated14.03.2012ofthisCourt,thecasewasmadeovertothe newly established Special Court, CBI, Thiruvananthapuram. It was when the case was taken up for framing charges that the learned Sessions Judge noted that the main case viz S.C.No.1542 of 2006, was still pending before the Additional Sessions Court (Fast Track-III), Thiruvananthapuram. The learned Sessions Judge found that the only material available before the courtwasthe supplementary chargesheet filed by the CBI after conducting further investigation. The learned Sessions Judge noted that the prosecution had not takenanyeffortwhatsoevertogetS.C.No.1542of2006transferredtotheCourt 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :58: of the Special Judge, CBI, Thiruvananthapuram. In the said circumstances, a request was made to the High Court to consider the feasibility of transferring S.C.No.1542 of 2006 pending before the Additional Sessions Court (Fast Track-III), Thiruvananthapuram, to the Special Judge (SPE/CBI), Thiruvananthapuram. Onreceiptoftherequest,thecasewasmadeovertothe CBIcourtasperO.M.dated27.08.2013ontheadministrativeside.Thequestion is whether the committal of the case yet again is in order. 20. In Dharam Pal (supra), a reference was made by a Bench of Three Judges to the Constitution Bench and one of the questions that was referred was whether the judgment in Ranjit Singh v. State of Punjab 18, whichsetasidethedecisioninKishunSinghandOthersv.StateofBihar19, wasrightlydecidedornot.ThefactsofthecasewerethatanFIRwasregistered against one Nafe Singh and certain others for commission of offences under Sections307and323r/w.Section34oftheIPC.ThePolice,afterinvestigation, submitted its report under Section 173(2) of the Cr.P.C. before the Magistrate sending only Nafe Singh for trial while including the names of the others in Column 2 of thereport.Onreceiptofsuchpolicereport,theMagistratedidnot straightaway commit the case to the Sessions Courtbut,onanobjectionbeing 18 [(1998) 7 SCC 149] 19 [ (1993) 2 SCC 16] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :59: raisedbythecomplainant,issuedsummonstotheaccusedwhowereleftoutto face trial with Nafe Singh as the Magistrate was convinced that a prima facie case to go for trial had been made out against the appellants as well. Among variousquestionsthatwasposedbeforetheConstitutionBenchwasthequestion astowhethertheSessionsJudgecouldissuesummonsunderSection193Cr.P.C. as a court of original jurisdiction after committal. Another question was whether onthecasebeingcommittedtotheSessionsCourt,couldtheSessions Judge issue summons separatelyunderSection193Cr.P.C.orwouldhehaveto waittillthestageunderSection319Cr.P.Cwasreachedinordertotakerecourse thereto. The Apex Court, after noting the provisions of the Cr.P.C. observed as follows in paragraph Nos. 38 and 39 of the judgment: "38. Section 193 of theCodespeaksofcognizanceofoffences by the Court of Session and provides as follows: "193.Cognizance of offences by Courts of Session.--Except as otherwiseexpresslyprovidedbythisCodeorbyanyotherlawforthe timebeinginforce,noCourtofSessionshalltakecognizanceofany offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." The key words in the section are that "no CourtofSessionshall take cognizance of any offence as a court of original jurisdiction unless thecasehasbeencommittedtoitbyaMagistrateunderthis 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :60: Code". The above provision entails that a case must, first of all,be committed to the Court of Session by the Magistrate. The second condition isthatonlyafterthecasehadbeencommittedtoit,could the Court of Session take cognizance of the offence exercising originaljurisdiction.Although,anattempthasbeenmadebyMrDave to suggest that the cognizance indicated in Section 193 deals not with cognizance of anoffence,butofthecommitmentorderpassed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section. 39. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offencebeforecommittingthecasetotheCourtofSession.Itiswell settledthatcognizanceofanoffencecanonlybetakenonce.Inthe event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons,isnotinaccordancewithlaw.Ifcognizanceistobetaken of the offence, it could be taken either by the Magistrate orbythe Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. TheprovisionsofSection209will,therefore,havetobe understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the CourtofSession.Nor 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :61: can there be any question of part cognizance being taken by the Magistrate and part cognizance beingtakenbythelearnedSessions Judge.(emphasis supplied by us) 21. In terms of Section 193 of the Cr.P.C., onceacaseiscommittedto theCourtofSession,theSessionsCourtassumescognizanceoftheoffenceasa Courtoforiginaljurisdiction.Uponsuchassumption,theSessionsCourtisvested with all the powers that accompany theexerciseoforiginaljurisdiction.Clearly, the power to direct further investigation falls within the scope of such jurisdiction. The conferment of original jurisdiction necessarily includes supervisory powers over investigation, which is precisely the power exercised while ordering further investigation. The Sessions Court could have ordered further investigation by the same agency in an appropriate case and the investigatingofficeralsocouldhavesoughtpermissionfromtheSessionsJudge. InviewofSection209oftheCr.P.C.,theroleofaMagistrateafterthecommittal ofthecaseislimitedasaftercommitment,theMagistratewouldbecomefunctus officio and is not entitled to pass any orders on the case which has been committed. 22. ItcannotbesaidthattheCBIwasunawareoftheconsequencesof notabidingbytheprovisionsoftheCr.P.C.andnotcomplyingwiththedirections 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :62: issued by the Division Bench in Prabhavathiamma (supra). They proceeded withtheinvestigationasifitwasafreshinvestigationignoringthedirectivesand thenproceededtofileafinalreportbeforetheCJMErnakulam.Aftersubmission ofthefinalreportasaforesaidinbothcases,theCBIapproachedthisCourtand filed Crl.M.C. No. 4957 of 2010. In the petition filed under Section 482 of the Cr.P.C., the prayer sought by the CBI was to quash the charge framed by the Sessions Court in S.C.No.1542 of 2007 and to effacetheentireevidencewhich hadalreadybeenrecordedintheSessionsCourtandthe161statementsofthe witnesses who,accordingtothem,didnotsupporttheprosecution.Itwouldbe profitabletorefertotherelevantportionsofthejudgmentofthelearnedSingle Judge in Central Bureau of Investigation v.JithaKumarandothers20 to understand the attempts made by the CBI to clear the mess they had created. The above petition has been filed under Section 482 of the Code of Criminal Procedure, for short, the 'Code' to quash Annexure-A2 charge framed by the learned Sessions Judge, Fast Track-III, Thiruvananthapuram in S.C.No.1542 of 2006 and toorder de novo trial in the case on the basis of the report filed in RC.10/S/07/CBI/SCB/Chennai. xxxxxx xxxxx xxxxxxx 4. LearnedStandingCounselappearingfortheCBIadverting 20 [(2012:KER:25748)] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :63: to the circumstances under which investigation over the death of UdayakumarwashandedovertothatagencybyorderofthisCourtin awritpetition,contendedthatthisCourthastoexerciseitsinherent powers to grant thereliefscanvassedinthepetitiontopreservethe justice delivery system. A de novo trial on the basis of the supplementary charge filed by the C.B.I in the case, with direction that the evidence given by some oftheaccusedpersons,whohave beenlateracceptedasapproverswhenexaminedaswitnessesinthe previous trial, and also their 161 statements previouslyrecordedby thelocalpoliceandC.B.C.I.D,arenottobeconsideredinthetrialto be proceeded afresh, is the submission of the Standing counsel. RelianceisplacedbythecounselinDineshDuttJoshiv,TheStateof Rajasthan and another 2001SCC8570, ZahiraHabibullaH.Sheikh and another v, State of Gujarat and others (2004 CrLLJ 2050) and Joseph v Antony (2012 (2) KLT 517)tocontendthattodorealand substantial justiceandtopreventabuseofprocessofthecourt,this Court has to invoke its inherent power to order de novo trial with direction as aforesaid. xxxxxxx xxxxxx xxxxxx 5. Th ere is no dispute that what was ordered in the writ petition filed by the mother of the victim by this Court is further investigationofthecrimebytheC.B.Iwhilethetrialofthecasewas in progress. Now after further investigation, a retrial ofthecaseon the basis of the report filed by the C.B.I eschewing from consideration whatever evidence collected during the previous trial and also the 161 statements recorded by the previousinvestigating agencyhastobeorderedisthecaseofthepetitioner/C.B.Iinvoking 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :64: theinherentjurisdictionofthisCourtunderSection482oftheCode. Even assuming that there were latches andperhapsevenreasonto hold that the previousinvestigationdoneinthecrimewasfaultyfor one reason or other, it does not follow that 161 statements of the witnesses questioned during the previous investigation and the evidence recorded before the court can be totally discarded from consideration.ThisCourthasorderedonlyfurtherinvestigationofthe crime and not re-investigation of the crime. A de novo trial of the caseeschewingtheevidencerecordedintheprevioustrialcanvassed by the C.B.I is not allowable. Some of the accused named by the C.B.I after investigation have turned tobeapproversandpreviously theyhadgivenconflictingversionsintheirevidencebeforethecourt as against the evidence as approvers, is the plea canvassed for orderingsuchdenovotrial.Afterfurtherinvestigationorderedbythis Court, when a report has been filed including additional accused; whethertheyhavebecomeapproversornot,andotheroffencesnot included earlier are also levelled against accused persons framing/altering of charges afresh by the court is inevitable. As rightly contendedbythelearnedcounselfortherespondents,atrial hastocommenceafreshonfreshchargessoframed.What,ifany,is thevaluetobeattachedtotheevidencerecordedfromanywitnesses previously examined in relationtoevidencetobeletinthroughhim inthetrialtobeproceededwithafterframingofchargesonthebasis ofthesupplementaryreportfiledbytheC.B.Iisamatterwhichfalls within the appreciation of evidence by the court. Similarly, 161 statements recorded from anyofthewitnessesduringthecourseof investigationpreviouslydonebythelocalpolicecanbeusedonlyfor the purpose of contradiction if the maker of such statement is 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :65: examined as awitnessbeforethecourtbytheprosecution.Noneof thedecisionscitedbythecounselhasanyapplicationtothefactsof the case. In Zahira Habibulla H. Sheikh's case, cited supra, where retrialwasordered,theApexCourthasheldthattheabovecasewas one without parallel and stood on its own as an exemplary one demandingaretrialofthecase.Incaseswherefurtherinvestigation isorderedbythisCourt,itcannotbecontendedthatsincetherewas defective investigation earlier evidence, if any, collected before the courtpreviously,andalso161statementsrecordedfromthepersons questioned during the previous investigation, should be eschewed from consideration in the trial proceeding on the supplementary report. In Dinesh Dutt Joshi's case, cited supra, what has been dilated upon isonlytheambitandscopeofpowersenjoinedbythis CourtunderSection482oftheCode,which,inthegivenfactsofthe case, would no way assist the petitioner C.B.I to sustain the case canvassedof.Similarly,Joseph'scase,referredtosupra,renderedby thisCourtorderingfurtherinvestigationwithsomedirectionshowitis tobeproceededwithistotallyinapplicabletothequestionsinvolved in the present petition. There isnomeritinthepetitionfiledbythe C.B.I, and the Crl.M.C. is dismissed(emphasis supplied) 23. This Court, while dismissing the prayer, observed as under: a) What hasbeenorderedbytheDivisionBenchinW.P.(C)No.24258of 2007 is further investigation of thecrimebytheC.B.I,whilethetrial of the case was in progress and not re-investigation of the crime. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :66: b) Even assuming that there were latches and perhaps even reason to hold that the previous investigation done in the crime was faultyfor one reason or other, it does not follow that 161 statements of the witnesses questioned during the previous investigation and the evidence recorded before the court can be totally discarded from consideration. c) A de novo trial of the case, eschewing the evidence recorded in the previous trial as canvassed by the C.B.I is not allowable. d) After further investigation ordered by this Court, when a report has been filed including additional accused, whether they have become approvers or not, and other offences not included earlier are also levelled against accused persons, framing/altering of charges afresh by the court is inevitable.Thetrialhastocommenceafreshonfresh charges framed. e) Thevaluetobeattachedtotheevidencerecordedfromanywitnesses previouslyexaminedinrelationtoevidencetobeletinthroughhimin thetrialtobeproceededwithafterframingofchargesonthebasisof the supplementary report filed by the C.B.I is a matter which falls 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :67: within the appreciation of evidence by the court. f ) TheprinciplesoflawlaiddowninZahiraHabibullaH.Sheikhand another v. State of Gujarat and others21 has no application. 24. This view takenbythelearnedSingleJudgeisclearlyintunewith the observationsoftheApexCourtinVinayTyagi (supra),whereintheentire case law with regard to the procedure to be followed while ordering further investigation and re-investigation was considered and laid down. Reference to paragraph Nos. 22 and 23 of the judgment would be profitable. "22. 'Further investigation" is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This powerisvestedwiththeexecutive.Itisthecontinuationofprevious investigation and, therefore,isunderstoodanddescribedas"further investigation". The scope of such investigation is restricted to the discoveryoffurtheroralanddocumentaryevidence.Itspurposeisto bringthetruefactsbeforethecourteveniftheyarediscoveredata subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report" would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigationconductedby the empowered police officer. Another significant feature of further 21 (2004) 4 SCC 158 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :68: investigationisthatitdoesnothavetheeffectofwipingoutdirectly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in completecontradistinctiontoa"reinvestigation","fresh"or"denovo" investigation. 23. However, in the case of a "fresh investigation", "reinvestigation"or"denovoinvestigation"therehastobeadefinite orderofthecourt.Theorderofthecourtunambiguouslyshouldstate astowhetherthepreviousinvestigation,forreasonstoberecorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct "fresh investigation". This is primarily for the reason that it would be opposedtotheschemeoftheCode.Itisessentialthatevenanorder of "fresh"/"de novo" investigation passed by the higher judiciary should always be coupled with a specific direction as to the fateof the investigation already conducted.Thecaseswheresuchdirection can be issued are few and far between. This is based upon a fundamentalprincipleofourcriminaljurisprudencewhichisthatitis the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandatecontainedinArticles21and22oftheConstitutionofIndia. Where the investigation ex facie is unfair, tainted, mala fide and smacksoffoulplay,thecourtswouldsetasidesuchaninvestigation and direct fresh or de novo investigation and, ifnecessary,evenby 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :69: another independentinvestigatingagency.Asalreadynoticed,thisis a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely applytosuchcases.Unlesstheunfairnessoftheinvestigationissuch thatitpricksthejudicialconscienceofthecourt,thecourtshouldbe reluctant to interfere in such matters to the extent of quashing an investigation and directing a "fresh investigation". 25. In Vipul Shital Prasad Agarwal v. State Of Gujarat And Another22, the Apex Court, referring to the observations in Narmada Bai v. State of Gujarat23 acknowledgedthepracticeoftheCBIinregisteringafresh FIR in a case wherein further investigation was ordered. It was observed as follows in the judgment; 22. Therefore, the submission of Mr Sushil Kumar, learned Senior Advocate appearing for the petitioner, that the directions given by this Court earlier in Narmada Bai v. State of Gujarat (2011) 5 SCC 79 would necessarily mean that the charge-sheet submitted by the police stood implicitly rejected is without any basis in law and misconceived. Even the fact that CBI purported to have registered a "fresh FIR", in my opinion,doesnot lead to a conclusion in law that the earlier report or the material collectedbyGujaratPolice(CID)onthebasisofwhichtheyfiledthe charge-sheetceasedtoexist.Itonlydemonstratestheadministrative 22 [AIR 2013 SC 73] 23 [( 2011) 5 SCC 79] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :70: practice of CBI. 23.Inmyview,notwithstandingthepracticeofCBItoregister a"freshFIR",theinvestigationundertakenbyCBIisinthenatureof further investigation under Section 173(8) CrPC pursuant to the direction of this Court." 26. In the light of the law laid down inDharamPal(supra),Vinay Tyagi(supra),VipulShitalPrasadAgarwal(supra)andthedirectionsissued by this Court in Prabhavathiamma (supra) and in Central Bureau of Investigation (supra), the filing of further report or supplementary charge sheetcouldonlyhavebeeninthenatureofanincidentalproceedingtothefiling of the main charge sheet and its filing process is expected to beinconformity with the earlier process for consistency. It is a settled principle that the court takescognizanceoftheoffenceandnottheoffender(See:AnilSaranv.State OfBiharandAnother24;KalluNataliasMayankKumarNagarV.Stateof U.P. and Another25). Cognizance of an offence can only be taken once. Applying the principles above, a case once committed and pending before the Court of Session, and trial having commenced, there could not have been another committal of the very same case. There is no question of takingfresh cognizance of the very same offence and thereafter proceeding to issue 24 [ 1996 AIR SC 204] 25 [2025 SCC OnLine SC 1606] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :71: summons. The language ofSection193oftheCr.P.C.veryclearlyindicatesthat once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. If that be the case, in the light of the observations made by this Court while ordering further investigation and the observationoftheApexCourtinparagraphNo.41ofVinayTyagi(supra),the CBI could only have filed a supplementary report which ought to have been treatedaspartoftheprimaryreport. Theprovisionsof173(3)to173(6)ofthe Cr.P.C. would be applicable to such reports in terms of Section 173(8) of the Cr.P.C.. AsheldinparagraphNo.42ofVinayTyagi(supra),boththesereports havetobereadconjointly,anditisthecumulativeeffectofthereportsandthe documentsannexedtheretowhichthecourtwillbeexpectedtoapplyitsmindto determine whether there exists sufficient grounds to presumethattheaccused has committed the offence. As held by this Court, the fact that there were latches andperhapsevenreasontoholdthatthepreviousinvestigationdonein the crime was faulty for one reason or other, a de novo trial of the case, eschewing the evidence recorded could not have been the course that could have been adopted. The Additional Sessions Judge (Fast Track-III), Thiruvananthapuram, where S.C.No.1542 of 2006waspending,wasinseisinof 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :72: the caseafterthecasewascommittedtothesaidCourt.ThisCourthadstayed the proceedings in the said case to enable the CBI to submit supplementary reports after further investigation before the said court. No other court could have tried the offence in view of theexpressdirectionsissuedbythisCourton more than one occasion. The progress of the case could only have been controlled and determined by the Additional Sessions Judge (Fast Track-III), Thiruvananthapuram. 27. In Ram Lal Narang v. State (Delhi Administration)26, it was observedbytheApexCourtthatfurtherinvestigationisnotaltogetherruledout merely because cognizance has been taken by the court. When defective investigationcomestolightduringthecourseoftrial,itmaybecuredbyfurther investigation, if circumstances so permitted. It was further explained that the police should inform the court where the case is pending and seek formal permission to make further investigation whenfreshfactscometolightinstead of being silent over the matter keeping in view only the need foranearlytrial since an effective trial for real oractualoffencesfoundduringcourseofproper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. The mere fact that there may be further 26 [( 1979) 2 SCC 322] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :73: delayinconcludingthetrialshouldnotstandinthewayoffurtherinvestigationif that would help thecourtinarrivingatthetruthanddorealandsubstantialas well as effective justice. Going by the principles above, there cannot be any doubt that the supplementary report after conducting further investigation can be filed only before the Court where the case is pending and not before a different court. 28. Though unrelated to the case on hand, it would be profitable to note that under section 193(9) of Bharatiya Nagarik Suraksha Sanhita, while retaining the earlier provision pertaining tofurtherinvestigationascontainedin Section173(8)oftheCr.P.C.of1973,anewincorporationhasbeenmadebyway ofaprovisototheeffectthatfurtherinvestigationduringtrialmaybepermitted withthepermissionoftheCourttryingthecase.Thisprovisiongivessuchpower to order further investigation to the Court trying the case, which in Sessions triable cases would be the Sessions Court. Theproviso,thus,alsosupportsthe reasoningthatrepositoryofpowertoorderfurtherinvestigationuponcommittal of a case would be the Court of Session, where trial is pending, and the supplementary report, if any, to be filed only before the same Sessions Court. 29. Weshallnowproceedtoexaminethefatalproceduralirregularities 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :74: thathavearisenasadirectconsequenceoftheactionsoftheCBI.Despitebeing entrusted with the mandate of conducting further investigation, the CBI has failed to adhere to the explicit directions of this Court. We shall also consider whether such non-compliance strikes at the very root of the investigative process, rendering the proceedings fundamentally flawed and vitiating the legitimacy of the investigation undertaken by them. a) Insteadoffilingasupplementaryreportpursuanttofurtherinvestigationin S.C.No.1542 of 2006 pending before the Additional Sessions Court (Fast Track-III),Thiruvananthapuram,afinalreportstylingitasasupplementary report was submitted before the CJM, Ernakulam, which court had no jurisdiction to take the case on file. This is clearly against the directives issued by this Court in Prabhavathiamma (supra), Central Bureau of Investigation (supra) and the law laid down in Dharam Pal (supra). MerelybecausesomeoftheaccusedapproachedthisCourtchallengingthe legality of the committalandobtainedadverseorderswillnotbesufficient towipeoffthedirectionsissuedbyaDivisionBenchofthisCourtrelyingon the precedents laid down by the Apex Court. b) After taking over the investigation, what the CBI did was array 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :75: Sri. Thankamani, Sri. N Ramachandran, Smt. Sheeja Kumari, Smt. Sajitha C.S. and Heeralal as the accused. Sri. Raveendran had already been arraignedasaccusedNo.4bytheSessionsCourtbyinvokingSection319of the Cr.P.C. After roping the above personsasaccused,theywerearrested and immediately thereafter, separate applications were filed to tender pardon to those accused. The said application was filed before the CJM, Ernakulam. In fact, what had to be done by the CBI was to submit the application under Section 307 of theCr.P.C.beforetheAdditionalSessions Court (Fast Track-III), Thiruvananthapuram, where S.C.No.1542 of 2006 waspending,thetrialofwhichwasstayedbythisCourt.TheApexCourtin A.Devendran(supra)hasheldthataftercommitmentoftheproceedings only the jurisdictional Sessions Court will be entitled to consider the applicationfortenderingofpardonunderSection307oftheCr.P.C.,andthe CJM, which had committed the case, will not have jurisdiction to grant pardon.ItwasfurtherobservedthatiftheChiefJudicialMagistratetenders pardon, then that would not be a curable irregularity within the ambit of clause(g)ofSection460oftheCr.P.C..Inthecaseonhand,asitwasthe CJM, Ernakulam, who had granted pardon, in a case which had already been committed, and as observed by the Apex Court, it is not a curable 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :76: irregularity within the ambit of clause (g) of Section 460 of the Cr.P.C.. c) As far as RaveendranNairisconcerned,hewasalreadyaddedasaccused No.4bytheAdditionalSessionsCourt(FastTrack-III),Thiruvananthapuram in S.C. No.1542 of 2006 while the trial was pending. The said order was confirmed by this Court. Without moving the Sessions Judge with an application to tender pardon, an application was filed before the learned CJM, Ernakulam, which goes against the principles of law laid down in Devendran (supra) and Dharam Pal (supra). Only the Sessions Judge where S.C. No. 1542 of 2006 was pending could have considered the application for tender of pardon. (d) TheevidencerecordedinS.C.No.1542of2006wasnotlookedintobythe learned Sessions Judge while evaluating theevidenceinS.C.No.917/2012. Inotherwords,theproceedingsinS.C.No.1542of2006wasnotpursued. It was only when the learned SessionsJudgenoticedthat,apartfromthe supplementaryfinalreport,nootherdocumentshadbeensubmittedbefore the Special CourtforCBIcasesinS.C.No.917of2012andS.C.No.916of 2012, that a request was made on the administrative side to call for the records in S.C. No. 1542 of 2006 to the CBI Court. Even thereafter,fresh 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :77: evidencewasrecordedinthematter,andtheevidenceearliertakeninS.C. No.1542of2006wascompletelydisregarded.Thisisevidentfromthefact that the learned Sessions Judge, while trying S.C. No.917 of 2012, proceeded to hold that all the witnesses had turned hostile, which conclusion was incorrect. The proper course ofactionoughttohavebeen the submission of the supplementary final report before the Additional Sessions Court (Fast Track-III), Thiruvananthapuram, where S.C. No.1542 of 2006 was pending. The evidence, too, ought to have beenrecordedin that very case, which had only been stayed pending investigation by the CBI.Instead,S.C.No.916of2012andS.C.No.917of2012wereclubbed together,andevidencewasrecordedafreshinS.C.No.917of2012.Sucha course of action was wholly impermissible. The CBI, having sought directionsfromthisCourtastotheproperproceduretobefollowed,could not haveunilaterallyresortedtosuchanexercise.Asamatteroffact,this Court, while dismissing the petition filed by the CBI, had categorically ordered that after completion of further investigation and filing of the report, the framing or alteration of charges afresh by the Court was inevitable, and the trial had to commence de novo on the basis of such fresh charges. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :78: 30. The next question is whether the above actions would result in failure of justice and prejudice the accused. 31. In State Of M.P v.BhoorajiAndOthers27,theApexCourthad occasion to delve into the question as regards irregular proceedings. The question raised was whether the absence of a committal order to the Special Courtwouldvitiatetheentiretrialasoneconductedwithoutjurisdiction.Another question was whether Section 465 of the Code of Criminal Procedure, 1973 would bar an Appellate court from quashing a trial for such a procedural irregularity when "failure of justice" is demonstrated. It was observed as under: "12. Section465oftheCodefallswithinChapterXXXVunder the caption "Irregular Proceedings". The Chapter consists of seven sections starting with Section 460 containing a catalogue of irregularities which the legislature thought were not enough to axe downconcludedproceedingsintrialsorenquiries.Section461ofthe Code contains another catalogue of irregularities which in the legislative perception would render the entire proceedings null and void. It is pertinent to point out that the former catalogue contains the instance of a Magistrate, who is not empowered to take cognizance of offence, taking cognizance erroneously and in good faith.Theprovisionsaysthattheproceedingsadoptedinsuchacase, thoughbasedonsucherroneousorder,"shallnotbesetasidemerely 27 [2 001 INSC 393] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :79: on the ground of his not being so empowered". 13. ItisusefultorefertoSection462oftheCodewhichsays thatevenproceedingsconductedinawrongsessionsdivisionarenot liable to be set at naught merely on that ground. However, an exceptionisprovidedinthatsectionthatifthecourtissatisfiedthat proceedingsconductederroneouslyinawrongsessionsdivision"has infactoccasionedafailureofjustice"itisopentothehighercourtto interfere. While it is provided that all the instances enumerated in Section461wouldrendertheproceedingsvoid,nootherproceedings would get vitiated ipso facto merely on the ground that the proceedings were erroneous. The court of appeal or revisionhasto examine specifically whether such erroneous steps had in fact occasionedafailureofjustice.Thenalonetheproceedingscanbeset aside.ThustheentirepurportoftheprovisionssubsumedinChapter XXXV is to save the proceedings linked with such erroneous steps, unlesstheerrorisofsuchanaturethatithadoccasionedafailureof justice. 14. We have to examine Section 465(1) of the Code inthe above context. It is extracted below: "465. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed byacourtof competentjurisdictionshallbereversedoralteredbyacourtof appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :80: prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby." 15. A reading of the section makes it clear that the error, omission or irregularity in the proceedingsheldbeforeorduringthe trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing downtheproceedingsortodirectrepetitionofthewholeproceedings afresh. Hence,thelegislatureimposedaprohibitionthatunlesssuch error,omissionorirregularityhasoccasioned"afailureofjustice"the superiorcourtshallnotquashtheproceedingsmerelyontheground of such error, omission or irregularity. 16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in ShamnsahebM.Multtaniv.StateOfKarnataka(2001)2 SCC 577 thus: "23. We often hear about 'failure of justice' andquite oftenthesubmissioninacriminalcourtisaccentuatedwiththe saidexpression.Perhapsitistoopliableorfacileanexpression whichcouldbefittedinanysituationofacase.Theexpression 'failureofjustice'wouldappear,sometimes,asanetymological chameleon (the simile is borrowed from Lord Diplock inTown Investments Ltd. v. Deptt. oftheEnvironment(1977)1AllER 813,1978AC359,(1977)2WLR450(HL)).Thecriminalcourt, particularlythesuperiorcourtshouldmakeacloseexamination to ascertain whether there was really a failure of justice or whether it is only a camouflage." 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :81: XXXXX XXXXX XXXXX 21. The expression "a court of competent jurisdiction" envisaged in Section 465 is to denote a validly constituted court conferredwithjurisdictiontotrytheoffenceoroffences.Suchacourt willnotgetdenudedofitscompetencetotrythecaseonaccountof any procedural lapse and the competence would remain unaffected bythenon-compliancewiththeproceduralrequirement.Theinability totakecognizanceofanoffencewithoutacommittalorderdoesnot meanthatadulyconstitutedcourtbecameanincompetentcourtfor all purposes. If an objection was raised in that court attheearliest occasiononthegroundthatthecaseshouldhavebeencommittedby a Magistrate, the same specified court has to exercise ajurisdiction eitherforsendingtherecordstoaMagistrateforadoptingcommittal proceedingsorreturnthepolicereporttothePublicProsecutororthe policeforpresentationbeforetheMagistrate.Eventhiscouldbedone only because the court has competence to deal with the case. Sometimes that court may have to hear arguments to decide that preliminary issue. Hence the argument advanced by the learned counsel on the strength of the aforesaid decisions is of no avail. 22. The bar against taking cognizance of certain offences or by certain courts cannot govern the question whether the court concerned is "a court of competent jurisdiction", e.g courts are debarredfromtakingcognizanceofcertainoffenceswithoutsanction of certain authorities. If a court took cognizance of such offences, which were later found to be without valid sanction, it would not become the test or standard fordecidingwhetherthatcourtwas"a court of competent jurisdiction". It is now well settled that if the 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :82: question of sanction was not raised at the earliest opportunity the proceedingswouldremainunaffectedonaccountofwantofsanction. This is another example to show that the condition precedent for takingcognizanceisnotthestandardtodeterminewhetherthecourt concerned is "a court of competent jurisdiction". 32. In the case on hand, the CBI could have submitted the supplementary report only before theAdditionalSessionsCourt(FastTrack-III), Thiruvananthapuram, where S.C. No. 1542 of 2006 was pending. No fresh committalordercouldhavebeenpassedbytheCJM,Ernakulam.TheTrialcould have been conducted only by the Additional Sessions Court (Fast Track-III), Thiruvananthapuram in view of the principleslaiddowninPrabhavathiamma (supra), Vinay Tyagi (supra) and Dharam Pal(supra).Thetenderofpardon by the CJM to PW1, PW5, and PW15 to PW18 is also not in order, as such an application could only have been entertained by the Trial Court and notbythe CJM. 33. Sri. K.P. Satheesan, the learned counsel appearing for the CBI, submitted that as per notification dated 10.12.1974 issuedbytheGovernment, theChiefJudicialMagistrate,Ernakulam,hasbeenappointedandconferredwith the powers of a Judicial Magistrate of the First Class for all districts of Kerala, with headquarters at Ernakulam. The said notification authorises the Chief 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :83: Judicial Magistrate, Ernakulam, to try, enquire into, andcommittotheCourtof Session all such cases arising within the State of Kerala inwhichinvestigations are conducted, or charge-sheets filed, by the Special Police Establishment constituted under the Delhi Special PoliceEstablishmentAct,1946.Thelearned counsel further referred to the subsequent notification dated 14.07.2014, wherein it was noted that although a Special Court under the Special Police Establishment/CBI has since been established at Thiruvananthapuram, the committal proceedings were still to be undertaken before the Chief Judicial Magistrate,Ernakulam,asitcontinuedtoremaintheonlydesignatedMagistrate's Court in the State for such purposes. To address this anomaly, this Court had concurredwiththeGovernment'sproposaltoestablishaSpecialCourtofJudicial MagistrateoftheFirstClassatThiruvananthapuram,toactasacommittalcourt for the CBI Special Court at Thiruvananthapuram, with the same territorial jurisdiction. Accordingtothelearnedcounsel,inlightoftheabovenotifications, oncetheinvestigationwastakenoverbytheCBI,itcouldonlyhavere-registered the crime and submitted further reports and supplementary reports before the ChiefJudicialMagistrate,Ernakulam,andnowhereelse.Weare,however,unable toacceptthesaidcontention.Thenotificationsreferredtoabovepertainonlyto fresh crimes registered by the CBI and not toinstancesoffurtherinvestigation 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :84: ordered by a ConstitutionalCourtunderArticle226oftheConstitutionofIndia, whereinspecificdirectionswereissuedtotheCBItosubmitsupplementalreports before the trial court. It is also pertinent to note that during this period, the proceedings in the Sessions Case had remained stayed. Hence, the said notifications can have no applicationinmattersoffurtherinvestigation.Insuch circumstances, the principles laiddownbytheHon'bleSupremeCourtinVinay Tyagi(supra)andDharamPal(supra)mustnecessarilyapply.Asobservedby the Apex Court inInVipulShitalPrasadAgarwal(supra)themerefactthat CBI purported to have registered a "freshFIR", willnotleadtoaconclusionin law that the earlier report or the material collected by CBCID had been wiped out. By followingthepracticeofCBItoregistera"freshFIR",inacasewherein furtherinvestigationwasordered,theprocedureaslaiddownbytheApexCourt, as well as this Court, will govern the field. 34. Inviewoftheforegoingdiscussion,weareoftheconsideredview thattheintentionalcourseadoptedbytheCBIinsubmittingafinalreportbefore the ChiefJudicialMagistrate,Ernakulam,inamatterwherefurtherinvestigation hadalreadybeenorderedandthetrialhadbeenstayed,andthereaftersecuring acommittalofacasewhichstoodcommitted,therebymanagingtoconductade novo trial before the Court of the Special Judge, CBI, Thiruvananthapuram, 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :85: whollyunconnectedwiththeproceedingsinS.C.No.1542of2006,constitutesa fatal irregularity. Such a procedure, by itsverynature,causesseriousprejudice to the accused and consequently amounts to a failure of justice. 35. Notwithstandingthevariousproceduralirregularitieswhichwehave held as fatal, we deem it appropriate to also deal with the evidence adduced before thelearnedSpecialJudge,CBI,onthebasisofwhichthefindingofguilt wasultimatelyrecordedwithaviewtoconsiderwhetherthefindingofguilthas been arrived at on the basis of legal evidence. 36. Witness testimony TheprosecutionhasmainlyrelieduponthetestimonyofPW1,PW3,PW5, PW15 to PW18, and PW21 to prove the incident of custodial torture and the fabrication of Police Station records by accused Nos. 4 to 6, allegedlytoshield accused Nos. 1 to 3 from the legal consequences of their acts. 37. PW1, Sreekumar, is an injured witness who was picked upbythe policealongwithUdayakumar.IntheprevioustrialinS.C.No.1542of2006,he was examined asaprosecutionwitness,buthedidnotsupporttheprosecution case. After the CBI took over the investigation, PW1 was arraigned as an accused. The specific allegation against him, however, was not related to the 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :86: incident involving the death of Udayakumar. Rather, he was implicated for the purposeofallegedlytenderingfalseevidenceduringthetrialofS.C.No.1542of 2006. This is a questionable act. As to whether a person can be made an approver merely on the ground that he had not deposed in tune with the prosecutioncaseduringtrial,particularlywhenhehadnoroleinthecommission of the offence under investigation, is something that needs to be looked into. The principle of tendering pardon to an accomplice is to unravel the truthina grave offence so that guilt of the other accused persons concerned in commissionofcrimecouldbebroughthome.Whensuchapersoniscalledasa witness for the prosecution,hemustcomplywiththeconditionofmakingafull and true disclosure of the whole of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commissionthereof.Therecannotbeanydoubtthat PW1isthevictimofthecrime,andnoone,noteventheCBI,hasacasethathe was complicit in the murder of Udayakumar. It is in this context that the contention advanced by the appellants assumes relevance. They have asserted that, upon taking over the investigation, theCBIadoptedapracticeofarraying even prime witnesses as accused andshieldedtheoffenderswhowereactually in the Police Station and pressured them to turn approvers so as to depose in 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :87: supportofthestorysetupbytheCBI.Thiswasunderthethreatofbeingroped in as accused if they failed to do so. Curiously enoughinExt.P172application filed by the CBI for tendering pardon to PW1, it is stated that Suresh Kumar (A12)committedoffencespunishableunderSections120B,201r/w.Section331, 348,302,116and193oftheIPCandthathewasarrestedandreleasedonbail on18.9.2010ontheorderissuedbythelearnedSessionsJudge.Asobservedby us earlier, if the application was filed before the Trial Court in S.C.No.1542 of 2007, we doubt whether such an application would have been entertained. 37.1. Be that as it may, when examined in the present case, PW1 deposedinhischief-examinationthathehadmetUdayakumarearlierthatdayat about 11 a.m. at Killipalam, while Udayakumar was proceeding on his bicycle towards Palayam. As they could not proceed due to traffic congestion, both of them stayed at Sreekanteswaram Park, where they were takenintocustodyby accusedNos.1and2andbroughttothepolicestation.Hefurtherdeposedthat UdayakumarwasthereaftertakentotheCI'sofficebythesaidaccusedandlater returned in a battered condition. PW1 himself was also taken for questioning, andheclaimedthathewasphysicallyassaulted.He,however,refusedtoidentify the officer who physically assaulted him. Subsequently, however, PW1 resiled from the prosecution case. He stated that none of the police personnel had 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :88: tortured him. He nevertheless maintained that Udayakumar was taken to the hospital in a battered condition and that helatercametoknowofhisdeathat theMedicalCollegeHospital.Incross-examination,PW1statedthattheofficerin charge of the General Diary had remarked that "there was no point in Udayakumar living any longer." He further pleaded ignorance regarding what transpired inside the police station after he was taken there. He denied that, when making his statement before the Magistrate onthefollowingday,hehad disclosed the names of the officers who abused him, asserting instead that he was not aware of their identity. He further statedincross-examinationthatthe policeofficersstandinginthedockhadnotphysicallyassaultedhim.Hisversion was that it was after 4:30 p.m. on 27.09.2005, that he and Udayakumar were taken from Sreekanteswaram Park to the police station. He then professed ignoranceoftheidentityofthepoliceofficerswhohadpickedthemup.Healso maintained that he had given a truthful statement before theFastTrackCourt. WhenconfrontedwithhisprevioustestimonybeforetheFastTrackCourt,itwas revealed that he had not made any statement regarding physical assault by police officers. PW1 added that he wasthreatenedbyCBIofficerstodeposein tunewiththeirversion,underthreatofbeingarraignedasanaccused.According to him,Exts.P44andP46,beingstatementsrecordedunderSection164ofthe 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :89: Cr.P.C., were not his voluntary statements but were prepared as per the instructionsofCBIofficers.HeassertedthathewastutoredbytheCBItogivea false version before the Magistrate. He further alleged that, prior to the test identification parade, the photographs of the accused were shown to him. He also categorically stated that he had not given any incriminating statement against the accused when he was earlier examined before the Fast Track Court. 37.2. WhenPW1wasexaminedinS.C.No.1542of2006,hehadstated that he was a neighbour and close friend of the deceased. On the day in question, he and the deceased had gone together on a bicycle to Sreekandeshwara Park. While they were sitting in the park, two police officers approached them, took money from their pockets, and compelled two auto drivers to sign a document. Thereafter, the police took both PW1 and the deceased inanauto-rickshawtothepolicestation.Atthestation,thedeceased was taken to the office of theCircleInspector(CI)forquestioning.PW1stated that he did not hear the conversation between the police and the deceased. Subsequently,PW1wasalsotakenforquestioning.Hestatedthatthepolicedid not inflict any physical harm on him and that he was unaware of whether the deceased had been subjected to any physical assault by the police. Ext.P2 contradictionwasbroughtoutwhenhedeniedhisearlierstatementthathesaw 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :90: the police assaulting the deceased. However, itwasbroughtoutthatinExt.P4 statement recorded under Section 164 Cr.P.C., PW1 had stated before the Magistrate that Udayakumar (the deceased) was assaulted bythepolice.While deposing in court, PW1 claimed thathehadmadesuchastatementbeforethe MagistrateundertheinstructionsofaSub-Inspector(SI)andaCI,whosenames he could not recall.PW1furtherstatedthathehadbeentutoredinpreparation for the Test Identification Parade and that he had identified individuals as instructed by others. Ext.P1(a) was marked when he denied making a prior statement that the deceased had complained of pain in his legs and stomach. Similarly,Ext.P2(c)wasmarkedwhenhedeniedhavingpreviouslystatedthathe saw the police officers returning after 3:00 p.m. It was brought out during cross-examinationthatPW1hadaccesstonewspapersandtelevisionbeforethe Test Identification Parade. PW1 admitted that many of the statements hegave during his examination before the Magistrate werebasedonwhathehadbeen tutored to say. PW1 further deposed that officersattheFortPoliceStationhad threatened to kill him around midnight. PW1 was recalled and was further examined on 14.09.2015. PW1 affirmed that the statement he gavebeforethe Fast Track Court wastruthful,andclarifiedthathisearlierdepositionbeforethe Judicial First Class Magistrate (JFCM), Thiruvananthapuram, was made at the 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :91: instance of the police. He further stated that his second statement was given under threat and coercion by the police. PW1 deposed that he did not recall Soman hitting him on his back. However, this was contradicted by his earlier statementrecordedunderSection161oftheCr.P.C.,whereinhehadstatedthat Soman had struck him on theback.HefurtherstatedthatUdayakumardidnot request water at any point. WhenquestionedwhetherthefemalePoliceOfficer had given water to the deceased, he responded in negative. Additionally, PW1 deniedwitnessingthebottlefallfromthehandofthedeceasedwhilebeinggiven water to drink. 38. PW3wasaHeadConstableoftheFortPoliceStationattherelevant time. He deposed that he was on duty on the date of the incident and was presentinthepolicestationthroughout.Accordingtohim,theofficeoftheCircle InspectorwassituatedadjacenttothePoliceStation.Duringtherelevantperiod, Ajith Kumar (A4) was theSub-InspectorofPolice,andE.K.SabuwastheCircle Inspector.AccusedNos.1and2weremembersoftheCrimeSquad.PW3stated that the General Diary (GD) charge on that day was with Thankamani (PW5). When PW5 was entrusted with the duty toprepareaninquestinanothercase, PW3wasdirectedtotakechargeoftheGD.Hewasalsorequestedtolookafter thepersonsincustody.ThesentryondutyatthattimeincludedRamachandran 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :92: and Sajitha (PW16). When the sentry reportedtohimthatthehealthcondition of one of the detainees in thelock-upwasbad,heinformedtheSub-Inspector, but the latter did not respond. Since PW3 did not support the case of the prosecution, he was declared hostile and the learned Public Prosecutor was permitted to put leading questions.He,however,admittedthattheconditionof Udayakumar worsened and thathewastakentotheMedicalCollege,wherehe was declared dead. 39. PW4wasanotherPoliceConstableoftheFortPoliceStationcitedto provethatUdayakumarwastakentothehospitalonthefatefuldaywhenhefell ill. 40. PW5 was in charge of the GD of the Fort Police Station on 27.09.2005.Hestatedthatonthatday,ConstableRamachandran,SheejaKumari (PW17), Sajitha (PW16)wereonsentryreliefduty,whileRajani(PW21)wason VHFduty.Vijayakumar(PW3)andPoliceConstableSurendranwerealsopresent. At about 2:15 p.m., accused Nos. 1 and 2 brought two persons intothePolice Station,andtheywereUdayakumarandSureshkumar(PW1).PW5wasinformed that they had been picked up from Sreekanteswaram Park for questioning in connection with a case. They were made to stand behind his chair. He added 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :93: that accused Nos. 1and2wereCrimeSquadmembersattachedtotheCI,and that the CI had given instructions that other Police Officers shall not interfere with the work oftheCrimeSquad.Aftersometime,accusedNos.1and2took Udayakumar to the office oftheCI.Shortlythereafter,A4,theSub-Inspectorof Police, came to theStation,andhewasinformedaboutthetakingintocustody ofthetwopersons.Later,PW5sawaccusedNos.1and2bringingUdayakumar back in a battered condition, and he found that Udayakumar was not able to walk properly. He was made to sit in the cell. Sureshkumar (PW1) was then taken to the CI's office for questioning, and he was brought back after five minutes. He was then made to stand outside the cell. PW5 stated that instructions were given that the PW1andUdayakumarshouldnotbepermitted tointeractwitheachother.Atabout4:15-4:30p.m.,PW5wasdirectedbythe Sub-Inspector to proceed to conduct an inquest in a case of suicide. He entrusted the GD charge to PW3 and returned at about 7:00 p.m. When he returned,hefoundthreedetaineesintheStation.HethenwenttotheCI'soffice and found that accused Nos. 4 and 5 were present. The CI instructed him to registeracaseonthebasisofacomplaint.Accordingly,heregisteredCrimeNo. 702of2005at7:00p.m.Immediatelythereafter,theCIdirectedhimtostopGD entriesat7:30p.m.,afterrecordingthedetailsofthethreedetainees.Hefurther 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :94: stated that the CIinstructedthatnofurtherentriesweretobemadeintheGD without his permission. He identified his endorsement in the GD as Ext. P4(a), withtheGDwasmarkedasExt.P4.Atabout9:30p.m.,PW15RaveendranNair (Crime SI) came to the station after duty but soon left by calling it a day. At about 10:15 p.m., PW5enquiredwiththedetaineeswhethertheywantedfood. All except Udayakumar declined. AsUdayakumardidnotrespond,PW5entered the cell andfoundhimsittingunresponsive.Hesprinkledwateronhisface,but there was no reaction. He immediately called the CI (accused No. 5) and informed him of Udayakumar's condition. The CI instructed him to shift Udayakumar to the hospital. Accordingly, Udayakumar was taken in the office jeep, and PW3 (Vijayakumar), PW4 (Surendran), and one Anilkumar went with him. Sometime later, the CI telephoned to enquire about Udayakumar and directedPW5toreleasethethreepersonsbroughtbyhimtooneKamaludheen, which PW5 did. At about 11:45 p.m., PW5 received a call from the Medical CollegeHospitalinforminghimthatUdayakumarhaddied.Hefurtherstatedthat earlier, he had received a call from the General Hospital informing him that Udayakumar's condition was serious. At midnight, A4 came to the Fort Police Station, and PW3 and others who had gone to the hospital also returned. On receiving information of Udayakumar's death, the Sub-Inspector asked PW5 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :95: about the GD entries, and PW5 informed him that no entries had been made after 7:30 p.m., as per CI's instructions. Subsequently, the City Control Room Assistant Commissioner, Sharafudhin and CI Shafi came to enquire about the death.Thereafter,A6(Haridas),theAssistantCommissioner,alsocame,followed by A5 (C.I., E.K. Sabu). Accused No. 5 then asked PW5 to route all telephone calls from the Station to the CI's office. The Sub-Inspector enquired about the whereaboutsofPW15RaveendranNair,whowasthensummonedtotheStation at about 3:00 a.m. PW5 deposed that PW15 later told him thattheA6andA5 hadforcedhimtoprepareanFIRshowingthearrestofUdayakumarandPW1at 8:00 p.m. on 27.09.2005. Accordingly, Crime No. 703 of 2005 was registered, with the time of registration incorrectly shown as 8:00 p.m. To assist in the preparation of the case, PW18 (Heeralal) of the CI's office and the Assistant Writer of the Fort Police Station were also involved. PW5 further stated that accused No. 5 asked him toinsertanentryintheGDaboutUdayakumarbeing sent to the hospital, which he did only after Crime No. 703 of 2005 was registered,asperthedirectionsofSIAjithKumarandCISabu.Heaffirmedthat accusedNos.1to3werepresentintheStationthroughoutthistime.Afterthis, Ajith Kumar registered Crime No. 704 of 2005underSection174oftheCr.P.C., concerning the death of Udayakumar. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :96: 40.1. On the nextday,theCIcalledallofficerswhohadbeenonsentry dutyonthepreviousdayandinstructedthemtoensurethatanystatementgiven to any authority must be in conformity with the recordspreparedinrelationto Crime No. 703 of 2005. PW5 stated that A4 also threatened and intimidated them to depose in accordance with the false entries. He further deposed that during the earlier sessions trial, he had given evidence in tune with the police records, as directed by AjithKumarandE.K.Sabu.However,aftertheCBItook over, he stated the true facts before the Judicial Magistrate of the First Class, Thiruvananthapuram (Ext.P5) and before the Chief Judicial Magistrate, Ernakulam(Ext.P6).Accordingtohim,thestatementsinExt.P6reflectedthetrue facts. He admitted that the entries in Ext.P4 GDfrom8:30p.m.on27.09.2005 werefalseandweremadeunderthedirectionofA4(AjithKumar).Hisnotebook was marked as MO6. The Sentry Relief Book of the Fort Police Station was marked as Ext.P7, with the false entry regarding the registration of Crime No. 703 of 2005 being marked as Ext.P7(a). Hewentontoidentifyalltheaccused standing in the dock. 40.2. Incross-examination,PW5admittedthataccusedNos.1to3were his subordinates. It was brought out that although his statement had earlier beenrecordedbyaSuperintendentofPoliceandlaterintheSessionsCourt,he 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :97: had not mentioned at that time that he was threatened or intimidated by any officer. He admitted that prior to 10:15 p.m., he had no conversation with the detainees and denied the suggestion that Udayakumar and Sureshkumar were brought to the Police Station only after 4:30 p.m. In cross-examination by accusedNo.2,PW5admittedthathehimselfhadbeenarraignedasanaccused in the case and was arrestedbytheCBIandtakentotheiroffice.Hewaslater released on bail by CBI officers. He also admitted that he had not filed any application to be treated as an approver. PW5 maintained that he was on GD dutyfrom8:00a.m.to8:00a.m.thenextday,exceptforthebriefperiodwhen he went for the inquest. He claimed that until 10:30p.m.,hedidnothearany criesormoansfromUdayakumar,norwashetoldthatUdayakumar'shealthwas deteriorating.Headdedthatifhehadbeeninformed,hewouldhaveshiftedhim to the hospital.HeadmittedthathedidnotmentionUdayakumar'sconditionto theSub-Inspectoroverwirelesscommunication.Heconfirmedthathisstatement was recorded by the CBI on 27.06.2009 byPradeepKumar,andthathisearlier deposition before the FastTrackCourtwasmarkedasExt.D3.Headmittedthat after the CBI took over, he visited the CBI office at Ernakulam on several occasions, knowing that he was likely to be made an accused for the offences under Sections 302 and 342 IPC. His sureties hadaccompaniedhim.Hestated 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :98: thathewasarrestedtwicebytheCBI.Whenaskedwhether,asGDofficer,itwas his duty to take care of prisoners, he denied responsibility and denied that he and PW15 had manipulated the records to evade liability. In the cross-examination by A6, he admitted that he was not personally awareofthe conversation PW15 had with senior officers. During re-examination, he was asked as to why he was made the approver when he had no complicityinthe offence.HisresponsewasthatsincehewasinGDcharge,undertheimpression that he also had something to do with the incident, he was roped in as an accused. 40.3. When examined in S.C. No. 1542 of 2006 as PW5, Thankamani deposed that he assumed charge of the General Diary (GD) by 8:00 a.m. on 27.09.2005. According to him, Raveendran Nair returned to the Police Station after completing election duty and arrived by 8:00 p.m.Anentrywasmadeby RaveendranNairinMO5at8:00p.m.,whichisinhisownhandwritingandbears his signature. Based on the report submitted by Jitha Kumar,CrimeNo.703of 2005 was registered under Sections 41(1)(d) and 102 of the Cr.P.C by Raveendran Nair at 8:30 p.m.. The individuals involved were kept under the supervision of the officer on Paravu duty. PW5 stated that, upon enquiry as to whether they required food, the deceased, Udayakumar, did not respond. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :99: Observingthatheappearedunwell,PW5instructedotherPoliceOfficerstotake himtothehospital.Udayakumarwasimmediatelysentformedicalattention.The CircleInspectorarrivedattheStationafter10:00p.m..AjithKumarreachedthe Station after midnight. PW5 also clarified that he was notpresentatthePolice Station between 5:00 p.m. and 7:00 p.m. on 27.09.2005, as hehadgonewith PW4 to conduct an inquest. He affirmed that the deceased and PW1 were brought to the Station by 8:00 p.m. and asserted that neither of them was assaulted by anyone while in the Police Station. During cross-examination, he statedthatnovisibleinjurieswerenoticedonUdayakumar'sbodyatthetimehe was taken into custody. Similarly,noinjurieswereobservedwhilehewasbeing takentothehospital,astheprioritywastoensurehereceivedmedicaltreatment promptly. However, he stated that the uneasiness of the deceasedwasevident from his facial expressions and demeanor, which were clearly visible due to adequate lighting at the Station. 41. PW15, Raveendran Nair, was the CrimeSub-InspectoroftheFort Police Station.HewasarraignedasanaccusedbytheTrialCourtunderSection 319oftheCr.P.C.,andthesaidorderwasconfirmedbythisCourtinW.P.(C)No. 24258of2007.Thereafter,whentheinvestigationwastakenoverbytheCBI,he was arrested on allegations of committing offences punishable under Sections 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :100: 120B, 201, 331, 348, 302, 116, and 193 of the IPC. He was arrested and remanded. Thereafter, the Investigating Officer filed Ext.P166 before the Chief Judicial Magistrate, stating that the evidence of Raveendran Nair was vital and crucialforunravellingthecriminalconspiracyandfurthernotingthathisrolewas onlyminimal.Basedonthisapplication,thelearnedChiefJudicialMagistrate,by Ext.P166 (a) order, granted pardon. When examined in court, PW15 deposed that he was summoned to the Fort Police Station at about 3:00 a.m. by Ajith Kumar (A4), Sabu(A5),andHaridas(A6).Aspertheirinstructions,hefirstmet A5, and thereafter A6 (Haridas), who directed A4 (Ajith Kumar) to brief him about the incident that had occurredafewhoursearlierintheStation.Hewas asked to register a crime detailing the arrest of Udayakumar and PW1 Sureshkumar. Since he had not seeneitherofthemandwasnotpresentinthe Station earlier, he expressed his reluctance. According to him, A4 and A5 threatened him with dire consequences, telling him that as he had only a few months left before retirement, he would be denied pension benefits unless he complied. A6 (Haridas) then handed over to him a draft FIR, prepared by Mohanan Chettiar (Head Constable, Karamana Police Station), under Sections 41(1)(d) and 102 of the Cr.P.C. Based on this draft, PW18 (Heeralal) prepared Crime No. 703 of 2005, and PW15 was forced to sign the FIR at about 3:30 a.m. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :101: 41.1. PW15 further deposed that he came to know about the death of Udayakumar only around 4:30 a.m. on the next day. On 28.09.2005, he was directedtosigntheremandapplicationofUdayakumarandSureshkumar,which had been prepared by Assistant Writer, Mathusudhanan. He was also forced to signthearrestmemo,inspectionmemo,andcustodymemoofUdayakumarand SureshKumar.Ext.P17istheFIRofCrimeNo.703of2005,whichwasidentified byhim.Ext.P18isthemahazarpreparedbyJithakumar,andExt.P19isthereport submitted by Jitha Kumar. He stated thatExt.P17FIRfalselyshowsregistration of the Crime at8:00p.m.on27.09.2005,thoughPW15admittedhewasnotin the Station at that time and the accused were not before him. He admittedto makingafalseentryinExt.P4GeneralDiary,andtherelevantentrywasmarked as Ext.P4(b). Accordingtohim,theentriesweremadeonlyatabout3:00a.m. on 28.09.2005. 41.2. TheRegisterofPropertyfoundonSearchingPrisoners(PSR)ofthe Fort Police Station was marked as Ext.P20. He stated that false entries were maderegardingtheregistrationtimeofCrimeNo.703of2005andthebringing of the accused were made, which portions were marked as Exts.P20(a) and P20(b). He admitted that he signed thoseentrieswiththeknowledgethatthey werefalse.HealsostatedthatExt.P4entryshowingFIRregistrationat8:00p.m. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :102: and completion at 8:30 p.m. was false. Ext.P21 (inspection memo of Sureshkumar), Ext.P22 (arrest memo of Sureshkumar), and Ext.P23 (remand reportofPW1)allborehissignature,whichhestatedwasputattheinstanceof accusedNos.4to6.HisnotebookwasmarkedasExt.P25,andheadmittedthat Ext.P25(a) false entries therein were also madeafter3:00a.m.on28.09.2005, as per the directions of his superior officers. 41.3. PW15 further stated that during the earlier trial before the Fast TrackCourt,hehadtestifiedintunewiththerecordspreparedbytheCBCID,at the instance of his superiors. He explained that ₹4,020, produced along with Ext.P19 report, was submitted to the court by preparing Ext.P26 property list. TheArresteeRegisteroftheFortPoliceStationwasmarkedasExt.P27,wherein falseentriesweremaderegardingthearrestofPW1andUdayakumar.Ext.P28is the arrest memo book; its carbon copy concerning Udayakumar (Ext. P28(b)) wasalsoproduced.HeadmittedthattheendorsementinExt.P4(a),claimingthat the arrest had been informed to the relatives, was false. 41.4. PW15 further stated that theCrimeBranchofficialsdidnotrecord his statement correctly. On 28.09.2005, PW1 was taken to Vanchiyoor Police Station. During CBI's investigation, PW15 gave 164 statement before the 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :103: Magistrate,markedasExt.P29,andafterbeingmadeanapprover,gaveanother statement, marked as Ext.P30. 41.5. In cross-examination, he admitted that while tendering evidence before the FastTrackCourt,hehadnotcomplainedofthreatsfromhissuperior officers. He had, however, filed a revision against the Sessions Court order arraigninghimasanaccused.HeconfirmedthathewasarrestedbytheCBIon 18.05.2009 and was remanded till 09.06.2009, and spent 22 days in custody. After being released, hegaveExt.P29statementbeforetheCJM,Ernakulam.At thattime,hewasawarethatCBIwasfilinganapplicationtotenderpardonand make him an approver. He admitted that his statement before courtwasmade with the intention to avoid prosecution for his own role in the crime. During cross-examination, Ext.D4 contradiction was marked, where he had denied his earlier statementthathereachedthepolicestationat7:45p.m., andnotafter 9:30 p.m. as stated by him in his evidence. Ext.D5 contradiction was marked where he denied his earlier statement that he returned at 9:00 p.m.,informed PW1's arrest to his brother-in-law, and left the station, and had returned back only at 7:00 a.m. the next day. Ext.D6, was marked concerning a statement allegedly given on 06.12.2005, which he denied. He admitted that in the Fast Track Court, he had stated thatUdayakumarandSureshkumarwerebroughtin 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :104: withoutinjuries,andthathehimselfhadnotedinExt.P24thatUdayakumarbore no injuries. PW15 admitted that on 27.09.2005, it was his duty to register a crime.HefurtherstatedthathegaveevidencebeforetheFastTrackCourtafter his retirement. He claimed that from 8:00 a.m. to midnight on 27.09.2005, he hadnotcommittedanyillegalact,norwasheaskedtodoso.Accordingtohim, he had 34 years of experience in the police department and added that if a person was kept in lock-up without properrecords,responsibilitywouldliewith the GD in charge and sentries, and if anything untoward happened, only then would the Sub-Inspector, CI, Assistant Commissioner, and City Police Commissionerbeinformed.HisdepositionbeforetheSessionsCourtwasmarked as Ext.D7.Hestatedthatheisnotawareofthefactthatitwasonthebasisof abovetestimonythatthelearnedSessionsJudgehadinvokedSection319ofthe Cr.P.C.toarrayhimasanaccused,whichorderwaslaterconfirmedbytheHigh Court. He admitted that while in custody in the Sub-Jail, Ernakulam, he was asked whether he would give a 164 statement. After consenting, he was released on bail within 3 - 4 days. He admitted that the evidence tendered by him in the instant case was in tune with his previous statement. He further admitted thatitwasthedutyofStationOfficerstoregisteracrimeimmediately when Udayakumar and Sureshkumar were brought to the Police Station. He 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :105: confirmed thattheSub-InspectorandCIwerenotpresentinthestationatthat time. He also admitted that from 5:30 p.m. to 11:30 p.m. on 27.09.2005, A6 (Haridas)wasonelectionduty.WhenaskedwhetherA6hadcometothestation only after Udayakumar's death, he pleaded ignorance. 41.6. However, while examined as PW11 in S.C. No. 1542 of 2006, Raveendran Nair deposed that at the relevant time he was working as a Sub-Inspector in the Crime Bureau. On the date of the incident, he had been assigned law and order duty in connection with the counting of electionvotes. HereturnedtothePoliceStationaround8:00p.m.,bywhichtimethedeceased and PW1 had already been brought in by A1 and A2. A mahazar and report regardingtheseizureof₹4020/-fromthemwaspreparedbyA1.Hestatedthat heinformedtheCircleInspectoraboutthearrestandtheseizure,andthereafter, as directed by the CI and based on the mahazar, Crime No. 703 of 2005 was registered against the deceased and PW1. He stated that at about 4:15 p.m., whenA1andA2approachedthedeceasedandPW1inSreekandeshwaramPark, both attempted to run away. A1 and A2 pursued them. Suresh Kumar was apprehended first and kept under the custody of Sreekumar,whileJithaKumar caught the deceased by applying force. He further stated that he was told the sum of ₹4020/- was seized from the deceased. The registering of the FIR 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :106: commencedat8:00p.m.andwascompletedby8:30p.m..Afterregisteringthe FIR, the deceased and PW1 were handed overtotheguard(PC8571),andhe thenleftforhisresidence.Hestatedthatnoonehadtoldhimthatthedeceased orPW1hadbeenassaulted.However,hewastoldthatuntil8:00p.m.,theyhad beenquestionedintheCI'soffice.Duringcross-examination,headmittedthathe came toknowthatthedeceasedhadbeenapprehendedonlyafterachaseand thathehadcustodyofthemonlyfrom8:00p.m.,onwards.Hefurtheradmitted that he didnotconductabodysearchofeitherofthem,eventhoughtheyhad been chased and arrested, because both appeared normal when brought in as they had walked in withoutbloodstains,visibleinjuries,orsignsofexhaustion. He stated that he returned to the Police Station only by 7:30 a.m. on the followingmorning,anduntilthen,hehadnodirectknowledgeastothecauseof death of the deceased. He statedthatitwasonlywhenthecrimewasformally registered that he came to know that A1 andA2hadallegedlyinflictedinjuries onthedeceasedduringquestioningintheCI'soffice,whichsubsequentlyledto his death. Whenitwassuggestedtohimthathehadnotseenthedeceasedor PW1 at the time of arrest, he denied the suggestion. He also denied the suggestionthattheFIRwasnotfiledat8:00p.m.andthatthetimingnotedwas a false entry, thereby reaffirming that Crime No. 703 of 2005hadindeedbeen 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :107: registered at 8:00 p.m. HedeniedhavingconductedadirectbodysearchofA2 inCrimeNo.703of2005.Hestatedthathedidinfactconductthebodysearch of the deceased and PW1 before handing them over to Guard (PC 8175), in compliance with the directions of the Hon'ble Supreme Court. He categorically denied that any of the entries in the Registers were made after the death of Udayakumar. He stated that during the body search, he noticed that the deceased appeared tired. The deceased was asked whether he wished to be taken to ahospital,towhichherepliedinthenegative.Heassertedthatitwas only because of this response that the deceased was not immediatelytakento the hospital. 41.7. Whatisdiscerniblefromtheevidenceofthesaidwitnessisthatin thecourseofthetrialinS.C.No.1542of2006,hewasaddedasaccusedbythe learnedSessionsJudgebyinvokingSection319oftheCr.P.C.Thesaidorderwas confirmedbythisCourt.Thereafter,theinvestigationwastakenoverbytheCBI. They arrested him and remanded him without seeking permission from the Sessions Judge. Later, his 164 statement was recorded after keeping him in custodyforabout22days.Thereafter,anapplicationwasfiledtotenderpardon before the CJM, Ernakulam. As observed by us earlier, theapplicationoughtto have been filed before the Additional Sessions Court (Fast Track-III), 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :108: Thiruvananthapuram, where S.C. No. 1542 of 2006 was pending. Only the learned Sessions Judge could have considered whether it waspropertotender pardon to the saidaccused.Theprosecutionhasnocasethattheorderpassed bythelearnedSessionsJudgewasvariedorsetaside.TheTrialwasonlystayed, and the reportsweretobefiledbeforetheTrialCourt.TheactionoftheCBIin arresting and remanding a person and thereafter obtaining a statement under Section 164 of the Cr.P.C. and on the assurance given by the witness that he would parrot the story by making in an approver is strongly challenged by the appellants. It cannot be said that the challenge raised is baseless. 42. PW16,Sajitha,deposedthatin2005shewasservingasaWoman PoliceConstableattheFortPoliceStation,Thiruvananthapuram.On27.09.2005, she was assigned sentry and turn duties in different shifts, sentry duty from 10:00a.m.to12:00p.m.,turndutyfrom12:00p.m.to2:00p.m.,resttimefrom 2:00p.m.to4:00p.m.,turndutyfrom4:00p.m.to6:00p.m.,andagainsentry duty from 6:00 p.m. to 8:00 p.m. She stated thatatabout4:30p.m.,shesaw accusedNos.1and2bringinginaperson,byholdinghimonhisshoulders,and making him sit inside the cell. Another person was seated outside the cell. AccusedNos.1and2tookthissecondpersonawayforquestioningandbrought him back within 5-10 minutes, and he was made to sit outside the cell. She 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :109: askedfellowsentrySheejakumari(PW17)abouttheiridentity,andshewastold thatthepersoninsidethecellwasUdayakumarandtheoneseatedoutsidewas Sureshkumar. She further stated that around 7:00 p.m., Udayakumar askedfor water and wascrying,complainingoflegpain.Ajugofwaterwashandedover to Udayakumar by PW21 Rajini. Seeing him cry, she asked PW3 Vijayakumar whether he should be taken to the hospital. PW3 went to the Sub-Inspector's office and sought permission, but the SI did not respond. At about 7:15 p.m., three more persons were brought to the Station by Pushparajan,oneofwhom she knew. While conversing with him, the CI arrived and warned her for speaking to the detainees.At8:00p.m.,aftercompletingherduty,shewentto the restroom. Her dutynotebookwasmarkedasExt.P31.After10:00p.m.,she resumed turn duty and sought permission from the GD to have dinner, and returned by 10:30 p.m. At that time, PW21 rushed to her and said that Udayakumarwasunwell.Whenshecamedownstairs,shesawthatUdayakumar had already been taken in a jeep to the hospital. Around midnight, PW5 ThankamaniinformedtheStationthatUdayakumarhaddied.Shestatedthatthis fact was noted in Ext.P31,andtheentrywasmarkedasExt.P31(a).Sheadded that entries made after 10:30 p.m. in her notebook were written under the instructions of the SI and CI, as directed bythem.Sheconfirmedthatshehad 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :110: earlier given evidence before the Fast Track Court. Ext.P32 and P33 are the statements recorded under Section 164 of the Cr.P.C. in both thecrimes. She admittedthattheC.I.hadtoldherthatsinceshewasonsentryduty,shewould also be held responsible. 42.1. In cross-examination, she admitted that it was only about 4-5 daysafter27.09.2005thattheCIwassuspended,anditwasthereafterthatshe gave a statement to the Dy.S.P, CBCID. She confirmed that she gave evidence beforetheFastTrackCourtwithoutfear.ShestatedthattheCBIquestionedher 4-5 years after the incident. She wasawarethatSIRaveendranNairhadbeen arraigned as an accused and arrested,andthatPW18(Heeralal)hadalsobeen arrested.SheadmittedthataftertheCBItookover,shewasafraidthatshe,too, would be arraigned as an accused. She denied thatshehadrequestedtheCBI not to include her name in the array of accused. She confirmed that she was arraigned as an accused later and had to go to the CBI office inErnakulamto secure bail. After her statement was recorded, she was asked if she would depose before the Magistrate, and it was thereafter that she was released on bail.Sheadmittedthatalthoughsheclaimedshehadnotcommittedanyoffence, she had made wrong entries in her duty diary. She added that all the officers' notebooks were taken by PW5 after Udayakumar was shifted to the hospital. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :111: Ext.P170istheCBI'sapplicationbeforetheChiefJudicialMagistrate,Ernakulam, seeking pardon for her. In the application it is stated that her evidence was crucial to unravel the conspiracy hatched to fabricate false evidencebeforethe Trial Court in order to shield Jitha Kumar and Sreekumar from legal punishment. 42.2. When examined as PW19 in S.C.No.1542 of 2005, Sajitha stated thatshewasassignedguarddutyatthePoliceStationon27.09.2005from6:00 p.m. to 8:00 p.m.. She clarified that the role of the guard is to stand at the entrance of the Police Station, armed with a weapon, to provide security. 43. PW17, Sheeja Kumari, was also a Woman Police Constable on sentry duty at the Fort Police Station on 27.09.2005. She stated that at about 2:15 p.m., accused Nos. 1and2broughttwopersonstothePoliceStationand made them stand near the GD. Thereafter,accusedNos.1and2wentoutand returned around 2:30 p.m., taking one of the persons away, who she later identified as Udayakumar.Atabout4:00p.m.,sheresumedsentryduty.Around 4:30 p.m., accused Nos. 1 and 2 brought Udayakumar back totheStationand madehimsitonthefloor.TheythentookPW1SureshkumartotheCI'sofficefor questioning and brought him back later.Atabout6:00p.m.,shecompletedher sentry duty, but remained in the Station until 7:00 p.m. At about 6:30 p.m., 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :112: Udayakumaraskedforwater,whichwasgiventohimbyPW21Rajini.Thebottle slippedfromhishand,andshenoticedhimcrying.SheaskedPW3(Vijayakumar) to take him to the hospital. PW3 informed the SI, but the SI scolded him. At about 10:00 p.m., she resumed sentry duty. She heard the GD officer asking Udayakumarifhewantedfood.Ashedidnotrespond,PW5wentinsidethecell, sprinkledwateronhim,andrealisedhewasunresponsive.Hewasthentakento the hospital in a jeep along with Anilkumar and others. Later, the CI was informed. Around midnight, they received news that Udayakumar had died. PW17 further stated that the next day, she was called to theStationbytheSI andCI.Shewasdirectedtomakeentriesinhernotebookaccordingly.Whenshe initially refused, she was threatened and forced to comply. Ext.P35 was her notebook, with Ext.P35(a) being the entry in question. She admitted that the entry marked as Ext.P35(b) was false. She added that her statement was recorded by the Narcotic Cell, Assistant Commissioner. However, in her statement,shedidnotstatethatthefalseentriesweremadeattheinstanceof hersuperiorofficers.SheadmittedthattheCIandSIhadinstructedhertostick to the fabricated records. Ext.P36 was her statement before the learned Magistrate,andExt.P37wasanotherstatementdated28.09.2009.Sheadmitted that the CBI filed an application to tender her pardon, and she was made an 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :113: approver. 43.1. In cross-examination, she admitted that her statement was recorded earlier by a Superintendent of Police. She confirmed that in the previoustrial,shehadmetthePublicProsecutorandthereaftergaveevidencein tune with the records, as instructed. She stated that she later realised that persistingwithherearliertestimonywouldputherindifficultyaftertheCBItook over. On legal advice, she chose to depose in conformity with her statement beforetheMagistrate,underwhichshehadbeentenderedpardon.Sheadmitted that she was not personally aware of what transpired in the Police Station between7:00p.m.and8:00p.m.on27.09.2005.Shealsoadmittedthatbefore herarrest,theCBIhadrecordedherstatement,andthatshewaslaterarrested andreleasedonbail.Sheconfirmedthatitwasonlyafterherarrestthatshewas taken to the Magistrate and her statement was recorded. 44. PW18,Heeralal,deposedthatin2005hewasworkingasaConstable attheFortPoliceStation,Thiruvananthapuram.Hisdutywasintheofficeofthe Circle Inspector. Along with him, there was Head Constable,George,Mohanan, and several Assistant Sub-Inspectors. Accused Nos. 1 and2alsoworkedinthe sameoffice.Accordingtohim,on27.09.2005,aftercompletinghisdutyatabout 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :114: 8:30 p.m., he returned home. On 28.09.2005, at about 2:30 a.m., one Chandramohanan knocked at his door and informed him that C.I. Sabu was calling him. He was directed to report immediatelyattheoffice.PW18reached the office at about 3:00 a.m., where he found A6 (Haridas) sitting and writing something. C.I. Sabu, and S.I.Ajithkumarwerealsopresentinthesameroom. When he reported, C.I. Sabu told him that a custodial death hadoccurred.On asking who had died, the officer said that one of the persons brought by the squadhaddied.Onfurtherenquiryastohowhedied,PW18wastoldthatonlya postmortem examination would reveal the cause of death.Hethenwenttohis office and saw A2 (Sreekumar) writing something, with Mohanan Chettiar standing beside him. After some time, the Assistant Commissioner brought a paper written by him, handed it to Ajithkumar, and told him to copy it in his handwriting. Ajithkumar refused, saying that he was due for promotion, which led to some altercation between them. At about 3:30 a.m.,PW15[Raveendran Nair (Crime SI)] arrived. The Assistant Commissioner, Haridas, directed him to registeracrime.Initially,RaveendranNairrefusedandwentoutoftheoffice,but returnedabouttenminuteslater.TheAssistantCommissionerhandedthepaper to him and told him thatsincehewastheCrimeSI,hemustregisterthecase. Raveendran, along with Mohanan Chettiar, then approached PW18 and asked 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :115: himtoprepareanFIRinthenameofRaveendran.AsinstructedbytheAssistant Commissioner, a crime was registered showing the time of registration as 8:00 p.m.on27.09.2005,thoughinfacttheFIR(Ext.P17)waswrittenandregistered atabout4:00a.m.on28.09.2005.AftertheregistrationoftheFIR,theAssistant Commissioner left the office. PW18 thereafter returned to his office and took rest. On the following morning, at about 7:00 a.m., he was called to the CI's office. Along with one Jalaludheen, he was sent for preparing the inquestover thedeadbody.Afterinquestandpostmortem,thebodywashandedovertothe relatives,andtheyreturned.PW18furtherstatedthatinthecrimeregisteredby the CBCID,hewascitedasCW19.Hewasspecificallyinstructednottodisclose that the FIR was actually registered in themorning,buttostateinsteadthatit had been registered at 8:00 p.m. on 27.09.2005 by the CI and SI. He later disclosed these facts in Ext.P39 statement given before the Magistrate on 29.05.2009. Ext.P40 is the application filed for tendering pardon on 28.09.2010. 44.1. In cross-examination,PW18admittedthatwhenhewasexamined before the Fast Track Court, he had not supported the prosecution case. He stated that inconnectionwithCrimeNo.703of2005,hisstatementwasinitially recorded by a Dy.S.P. and later by a Superintendent of Police. He further admitted that when the CBI took over the investigation, he and PW15 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :116: Raveendran Nair were both arrayed as accused and were arrested. He was remanded to custody and remained in prison for 20 days. After furnishing Ext.P39statement,heremainedinprisonforanother8days,andthereafterwas releasedonbail.Accordingtohim,whenhewastakentotheMagistrate,hewas under the impression that he was giving a statement, but was unaware thatit was for tendering of pardon. 44.2. While examined asPW21inS.C.No.1542of2006,Heeralalstated that hisworkatthePoliceStationwaslimitedtowriterduties.Hedeposedthat hehadseenA1andA2leavingintheCircleInspector's jeepinthemorning,but did not know whether they had gone for election duty. According to PW21, RaveendranNaircalledHeeralalataround8:00p.m.andinstructedhimtowrite theFirstInformationReport(FIR)inhisownhandwriting.Hestatedthathehad neither seen the deceased nor PW1. His knowledge that the deceased was allegedly kept in the lock-up is purely based onhearsay.Hedeniedhavingtold thepolicethatabenchandcot,alongwithaGIpipe,werelyingonthefloorof therestroom.Hestatedthathedidnothearanysoundsofcryingorassaulton the day in question. He specifically denied having made the statement to the policethat"aftersometime,soundsofsomeonecryingandbeatingwereheard." This portion is marked as Ext.P20(a).HedeniedwitnessingA1beatingthesole 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :117: of the deceased with a wooden stick (chooral)anddeniedhavingmadesucha statementtothepolice.ThiscontradictionwasmarkedasExt.P20(b).Hedenied stating that he saw the deceased lying inside the lock-up with Sureshkumar standing outside which portion was marked as Ext.P20(d). He denied having stated that, upon hearing thecriesofUdayakumar,hewenttothelocationand sawthedeceasedlyinginasupinepositionwhileA1,A2,andA3werekneading aGIpipeintohisthighs,causingexcruciatingpain,whichportionwasmarkedas Ext.P20(c). He denied having identified the bench where the injuries were allegedly inflicted on the deceased, which portion was marked as Ext.P20(f). PW21 stated that apart from having writtentheFIRinhisownhandwriting,he had no further involvement in the case. 44.3. While being examined as PW18 in S.C. No. 1542 of 2006, Sheeja KumarideposedthatshewasonguarddutyatFortPoliceStationonthedateof the incident and was assigned duty from 10:00 p.m. to 12:00midnight.Atthe time she took charge of guard duty, she observed that Udayakumar (the deceased) was inside the lock-up, and Sureshkumar was standing outside the lock-up. PW18 confirmed that PW5 was the General Diary (GD) Charge Officer during this time. She further stated that PW5hadaskedthedeceasedwhether he wanted food, but the deceased did not respond. Concerned by the lack of 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :118: response, PW5 lookedinsidethelock-up,foundthedeceasedtobeunwell,and consequently arranged for him to be taken to the hospital. 45. PW21, Rajani, was a Police Constable at the FortPoliceStationin 2005. She deposed that she first saw Udayakumar at about 2:30 p.m. He was broughttothestationbyA1andA2,alongwithSuresh.Aftersometime,A1and A2 took Udayakumar to the CI's office. At that time, SI Ajithkumar was not present in the station. The SI came backatabout3:30p.m.,about1½ hours later,UdayakumarwasbroughtbackbyA1andA2.Hewasbeingheldbythem, and was put inside the lock-up. Thereafter, Suresh was also taken to the CI's office by A1 and A2 and was brought back after some time. In the evening, Udayakumar askedforwater,andshegavehimabottletodrink.Atabout7:30 p.m., she went for dinner and returned by9:30p.m.Atthattime,shesawthe GDofficeraskingUdayakumarwhetherhewantedfood,buthedidnotrespond. Just before she wentfordinner,atabout7:30p.m.,CISabuhadarrivedatthe station and was seen talking to PW16 (Sajitha). At about 10:00-10:30 p.m., sinceUdayakumarwasunwellandnotresponding,hewastakentothehospital byPW3VijayakumarandSurendran.Later,shereceivedinformationthathehad been admitted to the Medical College Hospital, where he passed away around midnight. She further deposed that the duty notebooks of the Police Officers 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :119: were collected by PW5 Thankamani, on the instructions of the SI and CI. She stated that both the SI and CI directed her to state that Udayakumar and Sureshkumarwerebroughttothestationonlyat8:00p.m.andthatacrimewas registered accordingly. She admitted that she had accordingly given such a statement to the CBCID Investigating Officer. However, after the investigation wastakenoverbytheCBI,shegaveastatementunderSection164oftheCr.P.C on 21.08.2009 before the Magistrate, Thiruvananthapuram. Approvers evidence: 46. Before carrying out an exercise of evaluation of the evidence tendered by the above witnesses, all except one are approvers, the broad principles with regard to an accomplice and approver and the matter of appreciation of their evidence need to be borne in mind. 46.1.Section133oftheEvidenceAct,1872declaresthatanaccompliceis a competent witness andfurtherthataconvictionbasedontheuncorroborated testimony of an accomplice is notillegalonlyonaccountofitbeingso.Section 133 reads as follows: " 133. Accomplice.--An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :120: accomplice." 46.2. Under Section 114 of the Evidence Act, Illustration (b), the court may presume: "(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars." 46.3. In Sarwan Singhv.StateofPunjab28,thedichotomybetween Section133andSection114(b)waslucidlyexplainedbyaThreeJudgeBenchof the Supreme Court through the words of Gajendragadkar J; as follows: "7. ... On behalf of Harbans Singh, ithasbeenurgedbeforeus by Mr Kohli that the judgment of the High Court of Punjab suffers from a serious infirmity in that, in dealing with the evidence of the approver, the learned Judges do not appear to have addressed themselvestothepreliminaryquestionastowhethertheapproveris a reliable witness or not. The problem posed bytheevidencegiven by an approverhasbeenconsideredbythePrivyCouncilandcourts inIndiaonseveraloccasions.Itishardlynecessarytodealatlength with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious staininhisevidenceandcourtsarenaturallyreluctanttoactonsuch tainted evidence unless it is corroborated in material particulars by 28 [A IR 1957 SC 637] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :121: otherindependentevidence.Itwouldnotberighttoexpectthatsuch independentcorroborationshouldcoverthewholeoftheprosecution storyorevenallthematerialparticulars.Ifsuchaviewisadoptedit would render theevidenceoftheaccomplicewhollysuperfluous.On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can bereasonablyandsafelyacceptedastrue.Butitmustneverbe forgotten that before the court reachesthestageofconsideringthe question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then thereisanendofthematter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must showthatheisareliablewitnessandthatisatestwhichiscommon to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver...(emphasissupplied by us) 46.4. In Haroon Haji Abdulla v. State of Maharashtra29, the principles were further elaborated as under: "8. ... The law as to accompliceevidenceiswellsettled.The 29 [A IR 1968 SC 832] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :122: Evidence Act in Section 133 provides that an accomplice is a competentwitnessagainstanaccusedpersonandthataconvictionis not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The effect of this provision is that the court trying an accused may legally convict him on the single evidence, of an accomplice.TothisthereisariderinIllustration(b) toSection114oftheActwhichprovidesthatthecourtmaypresume thatanaccompliceisunworthyofcreditunlessheiscorroboratedin material particulars. This cautionary provision incorporates a rule of prudencebecauseanaccomplice,whobetrayshisassociates,isnota fairwitnessanditispossiblethathemay,topleasetheprosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true.Itisforthisreasonthatcourts,beforethey act on accomplice evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. In this way the commission of the offence isconfirmed by some competent evidence other than the single or unconfirmed testimonyoftheaccompliceandtheinclusionbytheaccompliceofan innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration ofaccompliceevidenceas to have almost the standing of a rule of law." 46.5. K. Hashim v. State of T.N30, the Apex Court had occasion to expatiatefurtheronthemannerandmodeofappreciationofevidencetendered 30 [(2005) 1 SCC 237] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :123: by an approver, and it was observed as under: 38. First, it is not necessary that there should be independent confirmation of every material circumstancein the sense that the independent evidenceinthecase,apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Reading says: "Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would notbeessentialtothecase;itwouldbemerelyconfirmatory of other and independent testimony." (Baskerville case [(1916) 2 KB 658] 39.Allthatisrequiredisthattheremustbesomeadditional evidence rendering it probable that the story of the accomplice(orcomplainant)istrueandthatitisreasonably safe to act upon it. 40.Secondly,theindependentevidencemustnotonlymake it safe tobelievethatthecrimewascommittedbutmustin some way reasonably connect or tend to connect the accusedwithitbyconfirminginsomematerialparticularthe testimonyoftheaccompliceorcomplainantthattheaccused committed the crime. This does not mean that the corroboration as to identification must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary isthatthereshouldbe 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :124: independent evidence which willmakeitreasonablysafeto believethewitness'sstorythattheaccusedwastheone,or among those, who committed the offence. The reason for this part of the rule is that: "Amanwhohasbeenguiltyofacrimehimselfwillalwaysbe able to relate the facts of the case,andiftheconfirmation be only on the truth of that history, withoutidentifyingthe persons,thatisreallynocorroborationatall....Itwouldnot at all tend to show that the party-accused participated in it." 41. Thirdly, the corroboration must comefromindependent sourcesandthusordinarilythetestimonyofoneaccomplice wouldnotbesufficienttocorroboratethatofanother.Butof coursethecircumstancesmaybesuchastomakeitsafeto dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I saythisbecauseitwascontendedthatthemother in this case was not an independent source. 42. Fourthly, the corroboration need not bedirectevidence that the accusedcommittedthecrime.Itissufficientifitis merely circumstantial evidence of his connection with the crime. Were it otherwise, "many crimes which are usually committed between accomplices in secret, such as incest, offences with females" (orunnaturaloffences)"couldnever be brought to justice". (See M.O. Shamsudhin v. State of Kerala [(1995) 3 SCC 351]) 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :125: 46.6. The principles that can be culled from the oft-quoted judgments above are as follows: a) An accomplice is one who has participated in the commission ofthe crime. b) The very fact that he has participated in the commission of the offence introduces a serious stain in his evidence c) Itispossiblethattheapprovermay,topleasetheprosecution,weave false details into those which are trueandhiswholestoryappearing true, there may be no means at hand to sever the false from that which is true. c) Courts wouldbereluctanttoactonsuchtaintedevidenceunlessitis corroborated in material particulars by other independent evidence despite thefactthatanaccompliceisacompetentwitnessunderthe Indian Evidence Act. d) It cannot be expected that such independent corroboration should cover the whole of the prosecution story or even all the material particulars, as such an insistence would make evidence of the 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :126: accomplice wholly superfluous. e) At the same time, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details, because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. f ) The approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness, and that is a test which is commontoallwitnesses.Ifthistestissatisfied,thesecondtestwhich stillremainstobeappliedisthattheapprover'sevidencemustreceive sufficient corroboration. This test is special to the cases of weak or taintedevidence,likethatoftheapprover.Inotherwords,beforethe court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial andessentialquestion tobeconsiderediswhether,evenasanaccomplice,theapproverisa reliablewitness.Iftheanswertothisquestionisagainsttheapprover, thenthereisanendofthematter,andnoquestionastowhetherhis evidence is corroborated or not falls to be considered. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :127: 46.7. Inthelightofthelawabove,weshallevaluatetheevidenceofthe witnesses who areallapproverstocometoaconclusionwhetherthesamecan be relied upon to arrive at a finding of guilt. 47. PW1 was an injured witness taken into custody along with the deceased, Udayakumar. In the first trial (S.C.No. 1542 of 2006), he did not supporttheprosecutionandmadenoallegationsofpoliceassault.AftertheCBI assumed the investigation, PW1 was arraigned as an accused and thereafter tendered pardon, thereby becoming an approver. However, PW1 cannot be treated as an accomplice, for that term, in law, refers only to a person who knowingly orvoluntarilyco-operateswith,oraidsanotherin,thecommissionof a crime. The expression encompasses principalsinthefirstandseconddegree, aswellasaccessoriesafterthefact,subjecttothreewell-establishedconditions: (i) the felony must have been completed, (ii) the accessory must have knowledge that the principal committed the felony,and(iii)theaccessorymust harbour or assist the principalfelon.PW1,thoughprojectedasthestarwitness oftheprosecution,cannotbedeemedanaccomplicemerelybecausehefailedto supporttheprosecutionintheearlierproceedings.Heneitherparticipatedinthe murder nor rendered any assistance to the perpetrators. Fundamentally, therefore, PW1 did not qualify as an accomplice in law, and the very basis for 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :128: treating him as an approver was legally unsound. Further, PW1's testimony is fraught with contradictions. In one version, he alleged that Udayakumar had beenreturnedtotheStationinabatteredcondition,yetinanother,herefusedto identify any officer as responsible and reiterated that the accused officers had notassaultedhim.HealsoallegedthattheCBIcoercedandtutoredhim,showed him photographs prior to the Test Identification Parade, and compelled him to make involuntary statements under Section 164 of the Cr.P.C. These assertions cast a serious shadow over the voluntariness of his testimony. Despite legal evidence adduced before court, this Court will not be justified in relyingonhis earlier statement before the Magistrate and marked as Ext.P9 which was profuselyrelieduponbythelearnedSessionsJudge.Thesameisnotsubstantive evidence. 48. PW3 deposed that he was on duty at the Police Station on the relevant date, and although he admitted to the deteriorating health of Udayakumarandhiseventualremovaltothehospital,hedidnotimplicateanyof the accused officers in inflicting injuries. As he did notsupporttheprosecution ontheessentialissueofpoliceassaultandhewasdeclaredhostile.Hisevidence, even if those acceptable portions are considered as such, provides only backgroundcircumstancesofcustodyandhospitalisation,withoutconnectingany 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :129: accused to acts of torture. 49. PW5 initially deposed in S.C.No. 1542 of 2006 that the deceased and PW1 were brought to the Station around 8:00 p.m. and that he had no occasiontowitnesstheassault.However,aftertheCBItookover,headmittedto having made false entries in the General Diary under pressure from superior officers and narrated that the FIR was fabricated and back-dated. He also identified several accused as being involved in directing such falsification. However,thefactremainsthathewastheofficerwhowaspresentinthePolice Station from the moment Udayakumar was brought in. It was after turning himself into an approver that he had confessed to falsifying official records. Another problem with his evidence is that he does not admit that he has committedanycrimeandplacestheburdenontheseniorofficers.Hisshiftfrom exoneratingtestimonytoincriminatingdepositionwasafterhewasarraignedas an accused and thereafter tendered pardon. He admitted in cross-examination that he was fearful that he would be arraigned as anaccusedbytheCBIafter the investigation was taken over by them. It is clear as daylight that he was persuaded by the urge of extricating himself from being triedasanaccusedin thiscase.Moreover,thecourthastorelyontheevidenceoftheotherapprovers to obtain corroboration of the evidence of PW5. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :130: 50. PW15wasexaminedasPW11inS.C.No.1542of2006anddidnot support the case of the prosecution. The learned Sessions Judge, after evaluating the evidence, came to the conclusion that he is to be added as an accused and Section 319 of the Cr.P.C was invoked. The same was challenged before this Court and the said order was confirmed, and his appeal beforethe ApexCourtwasalsorejected.AftertheinvestigationwastakenoverbytheCBI, hewasarrestedandremanded.Afterspendingoverthreeweeksincustody,his statementwasinitiallyrecordedunderSection164oftheCr.P.C.wherehestated adifferentversion.Accordingtohim,hewasforcedbyhissuperiorstospeakas perthePoliceStationrecordswhenhewasearlierexaminedasawitnessinthe FastTrackCourt.AnapplicationwasfiledunderSection306oftheCr.P.C.before thelearnedCJM,Ernakulamandwastenderedpardon.HedeposedthattheFIR (Crime No. 703 of 2005) was in fact registered onlyaround3:30-4:00a.m.on 28.09.2005, though shown as 8:00 p.m. on 27.09.2005, and admittedtomake false GD entries, custody memos, and arrest documents under pressure from senior officers.Thefactremainsthathewasbeingaddedasanaccusedbythe learned SessionsJudgeinS.C.No.1542of2006inthecourseoftrial.Onlythe Sessions Court could have entertained the application for tendering pardon in view of the law laid down in Devendran (supra). Furthermore, PW15 had 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :131: candidly admitted that he was in prolonged custody, and he had aligned his evidence with the prosecution in order to escape from being roped in as an accused. We arethereforeunabletorelyontheevidenceofPW15asareliable piece of evidence to support the case of the prosecution. 51. PW16 initially deposed in tune with the police records in the first trialanddidnotconnecttheaccusedtoanytorture.Later,whenarraignedasan accused and tendered pardon, she shifted her stance to say that A1 and A2 broughtUdayakumartotheStationaround4:30p.m.,thathecomplainedofleg pain,askedforwater,andthathernotebookcontainedfalseentriesmadeatthe direction of superiors. She admitted fear of being arraigned asanaccusedand confessed to making false entries. The corroboration for her later incriminating versionagaincomesonlyfromotherapprovers,notfromindependentevidence. Under Haroon Haji Abdulla (supra), such tainted inter se corroboration is insufficient. 52. PW17 also followed a similar trajectory as PW16. Initially, her evidence did not connect the accused with the crime. Subsequently, after her arrest and pardon, she deposed that A1 and A2 brought Udayakumar at 2:15 p.m.andlaterreturnedhiminaweakenedcondition,andthatshewasforcedto 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :132: makefalsenotebookentriesundertheCI'sinstructions.Sheadmittedthatinthe first trial she had deposed in conformity with records after meeting the Public Prosecutor. She further admitted that her incriminating version emerged only after CBI's intervention and her own pardon. Such shifting positions and confessed falsifications destroy the intrinsic reliability of her testimony. 53. PW18initially,whenexaminedinS.C.No.1542of2006,downplayed his role and denied knowledge ofanyassault,admittingonlytowritingtheFIR at Raveendran's request. Later, after arrest and pardon, he stated thattheFIR was actually written around 4:00 a.m. on 28.09.2005 but falsely dated 27.09.2005at8:00p.m.Henarratedindetailthepresenceofseniorofficers,and they hadorderedthefabricationoftherecords.Thiswitness,too,isdiscredited by his own contradictory accounts and by the circumstances of his pardon following custodialpressure.Healsostatedthathewasarrestedandremanded and it was after several days that his application for tendering of pardon was consideredandhewasmadeanapprover.Hisevidenceistaintedandcannotbe acted upon without independent corroboration. 54. Yet another disconcerting aspect that is borne out from the evidenceoftheprimewitnessesabovewhowereallexaminedasapproverswill 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :133: be evident from the chart below. ame of N SC 1542/2006 rrested A 164 statement Application Tender of Bail Examined in Court as witness by the CBI recorded under pardon granted PW on in 917/2012 Section 306 before CBI Court before CJM Thiruvananthapuram EKM xamined as PW1 E rrested in A I n Crime 703/2005,Before 8.09.2010 1 1.10.2010 1 18.09.2010 xamined as PW1 on E on 3/07/2007 before RC 10/07 JFCM Ext.P 172 Ext.P. 172(a) 21/06/2017 the Additional on Thiruvananthapuram, on Sessions Judge 18.9.2010 20.10.2005 Suresh Kumar Thiruvananthapuram (Ext. P165) Ext.P43 ecalled on R 14.09.2015 before I n Crime 703/2005,Before Special Judge CBI JFCM V Thiruvananthapuram, on 28.08.09 Ext.P44 I n Crime 703/2005, before JFCM V on 28/09/2005 Ext.P9 xamined as PW5 E In RC 5 I n RC 5, before JFCM In RC 5 18.8.2010 xamined as PW5 on E on 5/07/2007 before Thiruvananthapuram, on 24/06/2017 the Additional 8.08.2010 1 29/08/2009 0.09.2010 3 Ext.P200 Thankamani Sessions Judge (Ext P200) Ext. P 5 Ext P.195 Thiruvananthapuram In RC 10 I n RC 10, before JFCM In RC 10 In RC 10 Thiruvananthapuram, on 8.09.2010 1 26/08/2009 8.09.2010 1 1.10.2010 1 (Ext.P160) Ext. P 8 Ext. 172 Ext. 172(a) In RC 5 J FCM II Kochi In RC 5 In RC 5 18.09.2010 xamined as PW15 on E 2/06/2009 16/11/2017 xamined as PW 11 E 8.05.2009 1 9.08.2010 1 8.09.2010 2 aveendran R on 6/07/2007 before (Ext. P183) Ext.P.29 Ext.P190 Ext.P194 Nair the Additional Sessions Judge Thiruvananthapuram In RC 10 In RC 10 In RC 10 8.09.2010 1 8.09.2010 1 8.09.2010 1 (Ext. P158) Ext. P167 Ext.P166 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :134: In RC 5 or Crime 703/2005 F I n RC 5 8.8.2010 1 xamined as PW 16 on E xamined as PW 19 E Before 30.09.2010 Ext.204 8/11/2017 on 10/07/2007 8.08.2010 1 JFCM V Ext.P 197 before the Additional (Ext. 203) Thiruvananthapuram on Sajitha Sessions Judge 25/08/2009 Thiruvananthapuram Ext.P 32 In RC 10 or Crime 704/2005 F In RC 10 In RC 10 Before 8.09.2010 1 JFCM V 0.09.2010 3 1.10.2010 1 (Ext. 162) Thiruvananthapuram on (Ext. P34) Ext.P 170(a) 21/08/2009 Ext.P 33 In RC 5 or Crime 703/2005 F In RC 5 8.8.2010 1 xamined as PW 17 on E xamined as PW 18 E Before Ext.P200 10/11/2017 on 10/07/2007 8.08.2010 1 JFCM V 0.09.2010 3 before the Additional (Ext.P 203) Thiruvananthapuram on Ext 196 heeja S Sessions Judge 27/08/2009 Kumari Thiruvananthapuram Ext.P 36 In RC 10 or Crime 704/2005 F In RC 10 In RC 10 Before 8.09.2010 1 JFCM V 9.08.2010 1 1.10.2010 1 (Ext.163) Thiruvananthapuram on (Ext.169) Ext 169(a) 22/08/2009 Ext.P37 xamined as PW 21 E I n RC I n RC 10, before JFCM In RC 5 18.09.2010 xamined as PW18 on E on 10/07/2007 10/2007 Thiruvananthapuram 14/11/2017 Heeralal before the Additional On 29/05/2009 n O Sessions Judge n O Ext. P 39 (After 306 28.09.2010 Thiruvananthapuram 18.5.2009 CrPC) Ext.P40 (Ext. P182) In RC 10 In RC 10 n O n O 18.09.2010 11/10/2010 Ext.P 171 Ext.P 171(a) 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :135: 55. After having been examined as prosecution witnesses and their evidence recorded in the earlier trial in S.C.No.1542 of 2006, they were subsequentlyre-arrestedafterseveralyears,andtheirstatementswererecorded under Section164oftheCr.P.C.Immediatelythereafter,anapplicationwasfiled seeking the tender of pardon, pursuant to which they were again examined in Court.Atthatstage,allofthemwereapparentlymadeawareofthemandateof Section308oftheCr.P.C.,whichprovidesthatwhereapersonwhohasaccepted a tender of pardon under Section 306 or Section 307 fails to comply with the conditiononwhichthepardonwasgranted,thepersonconcernedmaybetried for the offence in respect of which the pardon was tendered, or for any other offenceconnectedwiththesamematter,inadditiontotheoffenceofgivingfalse evidence.Fromtheevidence,itcanbeseenthatalltheapprovershadexpressly stated that they acted under fear of being arraigned as accused by the CBI. 56. Then all that remains is the evidence of PW21 Rajani. Shestated that Udayakumar was brought to the station byA1andA2atabout2:30p.m., along with Suresh, that they took him to the CI's office and about 1½ hours later,hewasbroughtback.Intheevening,Udayakumaraskedforwater,andshe gavehimabottletodrink.Atabout7:30p.m.,shewentfordinnerandreturned by 9:30 p.m. At that time, she saw theGDofficeraskingUdayakumarwhether 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :136: he wanted food, but he did not respond. At about 10:00-10:30 p.m., since Udayakumar was unwell and not responding, he was taken to the hospital by PW3 Vijayakumar and Surendran. Later, she received information that he had been admitted to the Medical College Hospital, where he passed away around midnight. She further deposed that the duty notebooks of the police officers were collected by PW5(Thankamani),ontheinstructionsoftheSIandCI.She stated that both the SI and CI directed her to state that Udayakumar and Sureshkumarwerebroughttothestationonlyat8:00p.m.andthatacrimewas registered accordingly. This evidence by itself cannot be the sole basis for conviction. 57. Our conclusion: In view of the above discussion, we conclude that: (i) Where further investigation was ordered in a case which was already committed to the Court of Session and Trial had commenced, the procedureadoptedbytheCBIinconductinginvestigationinvarianceto the direction issued by this Court in Prabhavathiamma (supra), Central Bureau ofInvestigation(supra),VinayTyagi(supra)and Dharampal(supra)andinfilingfinalreportbeforeaMagistratehaving 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :137: nojurisdictionhasresultedinseriousfailureofjusticeandhasviolated the rights of the accused to haveafairtrialflowingfromArticle21of the Constitution of India. ii) PW1, who was an eyewitness to the occurrence, was improperly branded as an accomplice and turned into an approver, contrary to well-established tenets of law. iii) The evidence of all witnesses had already been recorded in S.C. No. 1542 of 2006, and such evidence oughttohavebeendulyconsidered by the learned Sessions Judge while assessing the reliability of their testimony as anapprover.Despitethespecificdirectionsissuedbythis Hon'ble Court as to the manner in which thetrialwastoproceedand the evidence to be appreciated, those binding directions were disregarded, and the earlier evidence was not taken into account. iv) TheprocedureadoptedbytheCBIinseekingthetenderofpardon,ina casewhichhadalreadybeencommittedandtrialwaspending,byfiling an application before the Chief Judicial Magistrate, is ex facie illegal, beinginviolationofthemandatoryprovisionsofSections306and307 of the Cr.P.C., as well as the binding precedent laid down in 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :138: Devendran(supra).TheevidenceofPW1,5,15,16,17and18cannot therefore be relied upon to aid the case of the prosecution. v) Even otherwise, the testimony tendered by the approvers, when evaluated inthelightoftheevidencealreadyadducedinS.C.No.1542 of 2006, is wholly unreliable and cannot be made the foundation of conviction. vi) PW15 (Raveendran), who was initially examined as PW11 before the Additional Sessions Court (Fast Track -III), Thiruvananthapuram and was later added as an accused under Section 319 of the Cr.P.C., and was made an approver by way of anapplicationunderSection306of theCr.P.C.beforethelearnedMagistrate.Suchanapplicationcouldonly have been entertained and decided by the Fast Track Court. The adoptionofacontraryprocedureisnotamerecurableirregularity,but a fundamental illegality, as categorically held inDevendran(supra). vii) The high-handed and wholly illegal procedure adopted by the CBI, of converting an eyewitness, who had no real connection with the incident,intoanapprover;ofindiscriminatelyarrayingallwitnessesand coercingthematgunpointintobecomingapprovers;ofextractingtheir 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :139: assentontheconditionthattheyparrottheCBI'sversionofevents;of filing applications for tender of pardon before a Court lacking jurisdictiontoentertainthesame;andoflayingasupplementaryreport before a Courtequallydevoidofjurisdiction,amountstonothingshort of a tainted and vitiated investigation. 58. Inacriminaltrialinvolvingaseriousoffenceofabrutalnature,the courtshouldbewaryofthefactthatitishumaninstincttoreactadverselytothe commission of the offence and make an effort to see that such an instinctive reactiondoesnotprejudicetheaccusedinanyway.Inacasewheretheoffence alleged to have been committed is aseriousone,theprosecutionmustprovide greaterassurancetothecourtthatitscasehasbeenprovedbeyondreasonable doubt. 59. There are major contradictions in the testimonies of the prosecution witnesses, most of whom are approvers, accompanied by glaring investigative defects. It cannot besaidthattheprosecutionhasestablishedthe chargebeyondreasonabledoubt.Atthecostofrepetitionwemaystatethatthe standardofproofisanabsolutelystrictrequirementandcannotbetinkeredwith. We arecompelledtoholdthataflawedandtaintedinvestigationhaseventually 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :140: led to the failure of the prosecution case involving the gruesome death of Udayakumar. The evidence adduced before the Court, if shorn of its taint and illegalities,isnotsufficienttoholdtheaccusedguiltyoftheoffence.Thefindings recorded in the impugned judgment holding the appellants guilty of charges framed against them are based on conjectures and surmises and hence, the same is unsustainable under law. 60. Before parting, we would like to reiterate the words of the Apex Court in Ashish Batham v. State Of M.P31 wherein it was observed that realities or truth apart, the fundamental and basic presumption in the administrationofcriminallawandjusticedeliverysystemistheinnocenceofthe allegedaccusedandunlessthechargesareprovedbeyondreasonabledoubton the basis of clear, cogent, credible or unimpeachable evidence, the questionof indicting or punishing an accused does not arise. We cannot merely becarried away by the heinous nature of the crime or the gruesome manner in which it wasfoundtohavebeencommitted.Meresuspicion,howeverstrongorprobable it may be is no effective substitute for the legal proof required to substantiate thechargeofcommissionofacrimeandgraverthechargeis,greatershouldbe thestandardofproofrequired.Courtsdealingwithcriminalcasesatleastshould 31 [2 002 AIR SC 3206] 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :141: constantlyrememberthatthereisalongmentaldistancebetween"maybetrue" and"mustbetrue"andthisbasicandgoldenruleonlyhelpstomaintainthevital distinctionbetween"conjectures"and"sureconclusions"tobearrivedatonthe touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. 61. Therefore,giventhefactsandcircumstancesofthecaseandinthe light of the above discussion, we cannot bring ourselves to hold the accused appellants guilty of the charged offence as their guilt has not been proved beyond a reasonable doubt. 62. Resultantly: a) Crl.A.No 940 of 2018, Crl.A.No. 959 of 2018, Crl.A.No. 965 of 2018 and Crl.A.No.1057 of 2018 are allowed. b) Crl.A.No.1132 of 2018 is closed as the appellant had expired during the pendency of the proceedings. c) We reject the request for confirmation of the death sentence and dismiss DSR.No.6 of 2018. d) Thefindingofguilt,convictionandsentencepassedagainstaccusedNos.1, 4, 5, 6, are set aside. 2025:KER:64852 DSR Nos.6/2018 & Con.Cases :142: e) The 1st accused shall be set at liberty if his continued detention is not required in connection with any other case. f ) The appellants in Crl.A.No.940 of 2008, Crl.A.No.959of2018,Crl.A.No.965 of2018,beingonbail,theirbailbondswillstandcancelled,andtheyareset at liberty. d/- S RAJA VIJAYARAGHAVAN V, JUDGE d/- S K. V. JAYAKUMAR JUDGE PS/APM/2 7.08.2025