Padmakumar vs State Of Kerala on 26 October, 2013

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Kerala High Court

Padmakumar vs State Of Kerala on 26 October, 2013

Accused Nos.1, 2 and 4, the appellants in Crl.Appeal Nos.59/2014, 13/2014 and 1664/2013, came up against the judgment of conviction and orders of sentence passed under Sections 364A, 392 and 342 IPC in Sessions Case No.888/2009 of the Additional Sessions Judge-V, Thiruvananthapuram. They were originally charge sheeted for the offence under Sections 364A, 395, 342 IPC and Section 27 of the Arms Act, and found not guilty for the offence under Section 395 IPC and Section 27 of Arms Act and hence acquitted of those charges. They were convicted for the offence under Sections 364A, 342 and 392 IPC (being a minor offence under Section 395) and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- Crl.Appeal Nos.1664/13, 13/14 & 59/14 2 each for the offence under Section 364A and sentenced to undergo rigorous imprisonment for a period of five years each for the offence under section 392 IPC and to undergo rigorous imprisonment for a period of one month each for the offence under Section 342 IPC, with a direction to run the substantive sentences concurrently, with a further direction to release an amount of Rs.1,00,000/- to PW4 under Section 357 Cr.P.C by the impugned judgment.

2. The learned Sessions Judge has relied on the oral testimony of PWs 1 to 4 and the oral evidence of father, mother and sister of PW4 who were examined as PW1, PW13 and PW11. PWs 3, 4, 6, 7, 9, 18, 19 and 20 are the attestors of various mahazars prepared by the investigating officer. PW15 to 17 and PW21 to PW23 are the investigating officers at various stages. PW14 is the goldsmith who appraised the gold produced by PW8. PW10 is the telephone booth owner from where the demand for ransom was communicated to the father of the victim. PW4 is the victim.

Crl.Appeal Nos.1664/13, 13/14 & 59/14 3

3. PW1 is the father of the victim. According to him, PW4 went out of the house by 3.30 p.m. on 5.10.2002 and he returned only by 6.30 a.m. on the next day morning. PW1 deposed that on 05.10.2002 by 9.00 p.m., PW4 telephoned to the house of the sister of PW13, which was attended by Reena, by which PW4, the victim, intimated that he is under the restraint of accused Nos.1 and 2 for a ransom of Rs.50,000/- and made a request to pay the said amount. PW1 had also given Exhibit P1 FIS to the Police in connection with the alleged incident. PW2 is a witness to Exhibit P2 mahazar who turned hostile to the prosecution. PW3 is a witness to Exhibit P3 mahazar who also turned hostile to the prosecution. PW4 is the victim. PW5 is a taxi driver, who turned hostile to the prosecution. PW6 also turned hostile to the prosecution. PW7 is the witness to Exhibit P5 mahazar. PW8 was examined by the prosecution in order to prove the recovery of gold sold by one of the accused Mahesh to his shop, but he turned hostile to the prosecution denying the alleged recovery. PW9 is the witness to Exhibit P6 mahazar, but turned hostile to the prosecution and even did not identify any of Crl.Appeal Nos.1664/13, 13/14 & 59/14 4 the accused in the box. PW10 also turned hostile to the prosecution stating that none of the accused are known to him. PW11 is a relative of PW4 who was having only a hearsay information with respect to what is communicated through telephone on 05.10.2002 by 9.15 p.m. PW12 is the Village Officer who prepared the scene plan. PW13 is the mother of PW4. According to her, on 05.10.2002 by 9.15 p.m. they received a telephone call demanding a ransom of Rs.50,000/-. The call was initially attended by Reena. Immediately she contacted the Police by dialing '100' and the Police came to the place. The two persons who approached PW13 for receiving the ransom was immediately arrested by the police. Next day morning, PW4 came to his house. PW13 had identified accused No.2. On cross examination it has come out in evidence that her husband, who was working in KSRTC, retired from the service just one month before the alleged incident. PW14 is the appraiser of the gold chain and the rings, but turned hostile to the prosecution pleading ignorance.

Crl.Appeal Nos.1664/13, 13/14 & 59/14 5

4. All the material witnesses examined by the prosecution except the victim, his father, mother and sister, turned hostile to the prosecution. The oral evidence tendered by PW1, father of the victim, speaks only with respect to the telephone call received by them demanding a ransom of Rs.50,000/-. The demand was made by the victim, PW4, through telephone by stating that he is under the restraint of accused Nos.1 and 2. PW10, the owner of the telephone booth, also turned hostile to the prosecution. PW1 father did not have any direct knowledge with respect to the involvement of the assailant/accused persons except the fact that his wife received a telephone call from her son, PW4, intimating that he is under the restraint of accused Nos.1 and 2 and that they demanded an amount of Rs.50,000/- as ransom. The oral evidence tendered by PW13, the mother and PW11, the sister, also stands on the same footing as they did not have any direct knowledge with respect to the alleged kidnapping or abduction of PW4, except the demand made by PW4 through telephone that he is under the restraint of accused Nos. 1 and 2 and the ransom demanded by them comes to Rs.50,000/-. He Crl.Appeal Nos.1664/13, 13/14 & 59/14 6 had also made a request to entrust an amount of Rs.50,000/- or at least an amount of Rs.25,000/- to the person who may be deputed for that purpose by the accused. It is thereafter two persons approached PW1 and they were immediately arrested by the police. In short, except the oral testimony of PW4, the victim, no other satisfactory evidence was adduced by the prosecution to show the involvement of accused Nos. 1, 2 and 4 in the alleged incident. It is true that the oral evidence tendered by PW1 father, PW13 mother and PW11 sister would give corroboration to the oral testimony of PW4, the victim, only when what is transpired by him through telephone is found to be correct, especially when PW4, the victim, was aware of the fact of retirement benefits received by his father who retired just one month before the incident. The oral evidence tendered by PW4 has to be scrutinized with reference to the above said attending circumstances.

5. We have gone through the oral testimony of PW4. What is spoken by PW4 that he was taken into an auto-rikshaw from Sreekariyam Junction by accused Nos. 1, 2 and 4 has its own Crl.Appeal Nos.1664/13, 13/14 & 59/14 7 improbability and inconsistency by its nature. Even PW4 had admitted that he was taken to an auto-rikshaw by force from a public road. At that time, three of his friends (CW3 to CW5) were present. Admittedly, he did not make any attempt to escape from the custody of accused Nos.1, 2 and 4 and did not make any resistance or an attempt to attract the attention of his three friends who were present at that time. Then he was taken to a nearby school compound (Kattil L.P. School) and accused Nos.1, 2 and 4 along with the auto driver manhandled him by beating and stamping. By that time, three persons came there in a bike. It is seemed to be so strange that PW4 mentioned their names as Shyju, Suresh and another Suresh, but admitted that they are not known to him. We are in darkness how it is possible for a person to mention the name of three assailants who are not known to him. PW4 had even gone to the extent of stating that he could not identify those three persons. If that be so, it is not clear how he came to know about the name of those three persons. Further version given by him seemed to be highly improbable that they took away his gold chain and two gold rings Crl.Appeal Nos.1664/13, 13/14 & 59/14 8 by force. It is true that it happened by 8.30 p.m. It is not stated by him how he had identified or came to know about the name of those three assailants as Shyju, Suresh and another Suresh, if he was not in a position to even identify those persons by sight. This would take away the entire version given by PW4. It is a clear indication that he is trying to develop a story that three persons had taken away his gold ornaments in the same transaction. Inconsistency and improbability is writ large on its face.

6. It is highly improbable that why he had not resisted the act of accused Nos. 1, 2 and 4 and other accused either at the time when he was forcibly taken to the auto-rikshaw from a public road and when he was in the school compound. Admittedly, there are residential houses situated near to the L.P. School. He had not made any cry or any attempt for getting the help of others either at the time of abduction or during the course of transport or at the time when he was taken to the School. He did not offer any resistance. He did not have any case that at that time they were armed with any weapon like sword, knife etc Crl.Appeal Nos.1664/13, 13/14 & 59/14 9 and no such case was advanced by him while he was in the box as PW4. Then he was taken to a telephone booth and caused him to intimate the demand for ransom of Rs.50,000/- to his house by the accused. Even at that time he did not make any resistance. It is thereafter the auto driver along with Padmakumar went to the house of the victim. By that time he was taken near to the water tank situated near to the Kolathukara Temple. He had seen the flying squad of the police at that place, but he did not make any attempt to attract the attention of the flying squad or sought any help from the flying squad. The explanation given by him that the accused had shown a sword to him and threatened him not to make any noise, thereafter they jumped over the compound wall of a house and went to the railway line, seemed to be so strange. The victim along with the accused jumped over the compound wall of a house, but he did not make any attempt to run away from the accused, but joined hand with the accused for jumping over the compound wall. It is also not clear why he did not offer any resistance from jumping over the compound wall of a house and Crl.Appeal Nos.1664/13, 13/14 & 59/14 10 why he did not make any attempt to escape from the accused even at that time. Thereafter the victim along with two other persons proceeded towards S.N. Library and went to a vacant house. Thereafter by 2.00 to 2.30 a.m they proceeded towards a canal, then proceeded through paddy field for a distance of 8 kms and came near to Gurumandiram by 7.00 a.m. He was released at that time by Dileep by giving him an amount of Rs.10/-. Immediately he got a ride to the Medical College Hospital in an ambulance and was admitted there. With the permission of Doctor, he went to the Medical College Police Station and had seen the auto driver and Padmakumar in the Police Station. This portion of the oral evidence tendered by PW4 is totally against and inconsistent with the version given by PW1, his father, and PW13, his mother, who are in agreement that on the next day by 6.30 a.m. the victim, PW4, came back to their house. PW4 did not have any such case. On the other hand, according to him, after the release, he immediately proceeded to the Medical College Hospital, Trivandrum, in an ambulance and alighted at Ullur Junction and then proceeded to the Medical college Hospital Crl.Appeal Nos.1664/13, 13/14 & 59/14 11 and admitted there and had undergone treatment for three days. It is totally inconsistent with the version given by PW1 father and PW13 mother.

7. Even in the chief examination two inconsistent versions were given by PW4 stating that the auto driver has also joined with accused Nos. 1, 2 and 4 and attacked and manhandled him and at the same time it is stated that the auto driver did not join with the other accused or make any attack on him, but remained in the auto-rikshaw.

8. Further, very serious material omissions were brought out at the time of cross examination of PW4. It appears from a strict scrutiny of the oral evidence of PW4 that he did not offer any resistance at any point of time during the different stages of abduction, though several opportunities were available to him. Hence, we are of the considered view that what is spoken by PW4 is highly fishy, shrouded by improbabilities and inconsistencies and no reliance can be placed on it. Hence, we are of the view that the finding of guilt of accused under Sections 364A, 392 and 342 IPC and the conviction and sentence thereunder are liable to Crl.Appeal Nos.1664/13, 13/14 & 59/14 12 be set aside and we do so. No offence has been made out against accused Nos. 1, 2 and 4 and hence they are acquitted.

In the result, Crl.Appeal Nos.1664/2013, 13/2014 and 59/2014 are allowed by setting aside the finding of guilt of accused Nos. 1, 2 and 4 for the offence under Sections 364A, 392 and 342 IPC and the conviction and sentence thereunder. Accused Nos. 1, 2 and 4 are acquitted and set at liberty. They shall be released forthwith, if their detention is not necessary in connection with any other case. Registry shall intimate the operative portion of this judgment to the jail authorities concerned.

A.M.SHAFFIQUE (JUDGE) P. SOMARAJAN (JUDGE) DMR/-

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Kerala High Court