KANAKARAJAN @ KANAKANversusSTATE OF KERALA

                             [2017) 5 S.C.R. 76



A                    KANAKARAJAN @ KANAKAN
                                      v.
                            STATE OF KERALA
                      (Criminal Appeal No. 841 of2007)
B                              APRIL 21, 2017
           [N. V. RAMANA AND PRAFULLA C. PANT, JJ.]
           Penal Code, 1860 - ss.143, 147, 148, 342 and 302 - Murder
    - Infirmities in prosecution case - Benefit of reasonable doubt -
    Acquittal of accused - Case of prosecution was that at night, while
c   a religious procession was going on in a Temple compound, nine
    accused attacked victim-deceased and when PW-2 tried to intervene,
    he too was beaten by the accused persons - On way .to hospital,
    victim-deceased succumbed to injuries - Out of nine accused, one
    accused A-2 was found hanging from a tree on the next day and
D    was declared dead - Trial court acquitted all accused except A-1,
    A-5 and convicted them ulss.143, 147, 148, 342 and 302 - High
     Court acquitted A-5 and upheld the conviction of A-1 - Appellant-
    A-1 contended that the entire case is fabricated and he has been
    falsely implicated in the case - Held: The conduct of PW-2 in not
     accompanying the accused from one hospital to another, not giving
E    complaint to the police and not getting injuries treated raises serious
    doubts and supports the case of defense that PW-2 is kingpin who
     has implicated the accused with the help of his brother-in-law who
     is in police department - Prosecution witnesses were not cogent
     and trustworthy to form basis to convict the appellant - Non-
     examination of credible independent witnesses and non-conduction
F
     of test identification parade by investigating agencies, was very
    fatal to the case of prosecution - Further, some witnesses turned
     hostile - Also, investigating agencies failed in their duty to
     thoroughly investigate and find out reasons for death of A-2 who is
     alleged to be the prime accused - Prosecution case filled with
G    infirmities and lacunas and thus, grant of benefit of reasonable
     doubt extended to the appellant.
           Allowing the appeal, the Court
          HELD: 1. In the backdrop of the facts and circumstances a
    closer look at the evidence of prosecution witnesses, in particular
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                                    76
    KANAKARAJAN @ KANAKAN v. STATE OF KERALA                        77



 PW2, PW4 PWS, PWll, PW12, PW21 and PW22, would reveal A
 that these witnesses are not cogent and trustworthy to form basis
 to convict the appellant. Admittedly the incident had taken place
 in the midst of several hundred people and the prosecution
 witnesses in equivocal terms stated that the police personnel
 were present. There is nothing on record to show that the police B
 constables available at the scene of offence were examined or
 that they have played any role in preventing the accused. The
 conduct of PW2 in not accompanying the accused to the second
 hospital, not giving the complaint to the police and not getting
 his injuries treated raises serious doubts and supports the case
 of the defense that PW2 is the king pin who has implicated the C
 accused with the help of his brother-in-law who is in the police
 department. Above all when the High Court disbelieves the
 presence of PW2, at the scene of offence, it ought not to have
·taken into consideration his evidence to convict the appellant.
 The prosecution has not taken minimum care to examine the
 independent witnesses in support of their case and particularly D
 when it is nobody's case that independent witnesses were not
 available. [Para 17] [84-C-F]
       2. Non examination of credible independent witnesses in
this case is very much fatal to the prosecution's case. Particularly
when it is their own case that there were several shops and houses E
in the vicinity and several people were present. It is not nece~sary
that in each and every case on the ground of non examination of
independent witnesses the case of the prosecution has to be
brushed aside, if the evidence of prosecution witnesses is
consistent, cogent and corroborated by other evidence it can be F
safely relied upon, but it is not so in the case at hand. The High
Court disbelieved the presence of PW2, PW3 turned hostile,
statements of PW4, PWS and PW 22 do not inspire confidence.
No other independent witness is examined. PWll the
panchwitness for recovery of weapon has also turned hostile and
deposed that he signed without reading the same. Moreover G
there is no evidence to show any results of forensic examination
of the weapon so recovered. The High Court, while convicting
the appellant, should have been more cautious while weighing
the evidence of these prosecution witnesses. [Para 18] [84-F-H;
85-A]                                                                H
78            SUPREME COURT REPORTS                          [2017] 5 S.C.R.


A          3. In this case the High Court while convicting the accused
     has overlooked settled principles of criminal law and in a
     mechanical way based its conclusion on the premise that the
     injuries were not sustained in the process of the same incident.
     In a case of this nature, where the investigating agency utterly
B    failed in its duty to thoroughly investigate and find out the reasons
     for the death of A2 who is alleged to be the prime accused in
     causing the death of the deceased, convicting an accused would
     not be safe. [Para 20] [85-D-E]
           4. The other glaring aspect is that the test identification
     parade was not conducted. This aspect gains relevance as PW4
C    and PW5, who are cited as eye witnesses to the incident, deposed
     that they have not mentioned the names of the accused and that
     they did not know the accused. [Para 22] [85-H; 86-A]
           5. The prosecution case is filled with infirmities and lacunas,
     therefore the only possible and probable course left open is to
D    grant benefit of reasonable doubt to the appellant. [Para 23] [86-
     B]
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     841 of2007.
E         From the Judgment and Order dated 08.11.2006 by the High Court
     ofKerala at Ernakulam in Criminal Appeal No. 1906 of2004.
           R. Basant, Sr. Adv., Venkita Subramoniam T. R., A. Karthik, V.
     K. Sidharthan, Advs. for the Appellant.
           C. K. Sasi, Adv. for the Respondent.
 F
           The Judgment of the Court was delivered by
           N. V. RAMANA, J. 1. This appeal is directed against the
     Judgment dated 81h November, 2006 passed by the High Court ofKerala
     in Criminal Appeal No. 1906 of 2004, wherein the High Court has
     dismissed the appeal preferred by the accused/appellant herein and upheld
G    the order of conviction and sentence passed by the learned Additional
     Sessions Judge, Fast Track Court-I, Palakkad, in Sessions Case No. 104
     of2002.
           2. The material available on record reveals that initially there were
     nine accused in this case against whom an FIR was registered at 9 am
H
    KANAKARAJAN @ KANAKAN v. STATE OF KERALA                                79
                [N. V. RAMANA, J.)

on 6.3.2000 at Kongad Police Station for causing the death of one Rajesh A
and injuring the complainantNinod (PW2), who happens to be the cousin
of the deceased. Since the accused No. 2 (Ayyappankutty) was found
hanging from a tree on the next day and was declared dead, charges
were framed only against the remaining accused under Sections 143,
147, 148,302,342and324r/w 149ofindianPenafCode, 1860[hereafler B
'IPC' for brevity]. The Trial Court acquitted A3, A4, A6, A7, AS and
A9 of the charges and convicted Al (Kanakarajan) and AS (Sukumaran)
for the offences punishable under Sections 143, 147, 148, 342 and 302
r/w 149 ofIPC. On an appeal, the High Court acquitted AS of all the
charges but upheld the order of conviction and sentence as against A 1
(Kanakarajan) who is before us in the present appeal.                    C
       3. The brief facts of the case as unfolded from the case of
prosecution is that, on the intervening night of s•h and 61h March, 2000,
an ox procession was going on at Kunnappully temple at Tharakassery
and several people had gathered around the temple premises. At about 2
A.M, accused attacked the deceased Rajesh, with deadly weapons such D
as swords and sticks, as a result of which he sustained grievous injuries.
When the complainant-Vinod (PW2) tried to intervene and stop the
accused, he too was beaten up by the accused. While the general public
started gathering at the place of incident, the accused party took to their
heels. With the help of some of the people assembled there, PW2 took
the injured Rajesh in his jeep to the Fort Hospital where the doctor advised E
to shift the injured Rajesh to the Medical College Hospital, Thrissur. On
the way to the Medical College, Rajesh succumbed to the injuries at
about 5.30 A.M.
       4. Based on the information furnished by the complainant-
Vinod/PW2 (cousin of the deceased), Sub-Inspector (PW 21) at Kongad         F
Police Station registered the case as Crime No. 56/2000. PW22 (Circle
Inspector) took up the investigation and carried it through to a larger
extent and his successor, Circle Inspector (PW23) concluded the
investigation and filed the charge sheet against all the nine accused
persons, who pleaded not guilty and claimed trial.                          a
      5. The prosecution in order to bring home the guilt of the accused
has produced 23 witnesses and the defense has produced one witness.
Out of the aforesaid 23 prosecution witnesses, PW3 who was an
eyewitness to the incident, turned hostile. PWs 11 and 12, who were
witnesses to the recovery mahazar (Ext. P10), also turned hostile. PW 11    H
80            SUPREME COURT REPORTS                           [2017] S S.C.R.


A    being the panch witness for the recovery of 'vadival', allegedly the weapon
     used for committing the crime, did not support the case of the prosecution.
     In the accused/appellant's statement under Section 313, Cr.P.C, he had
     stated that on the eve ofKummati festival he went to the temple to pay
     respects to the deity and while having a soda drink from a roadside shop,
B    he saw a group of people running into the temple compound and heard
     from someone that Haridas, Vinod (PW2) and Rajesh (deceased) were
     attacking Ayyappan Kutty (A2). While he was trying to see from a
     closer point, as to what is going on, someone among the crowd said
     some persons have taken away Ayyappan Kutty (A2). On the next day
     i.e. 7.3.2000 at about 9.30 A.M, Ayyappan Kutty was found hanging
C    from a tree while his legs were touching the ground and there were
     injury marks onA2's body. When he went to the police station to report
     the same, the police arrested him and foisted a false case upon him,
     though he had nothing to do with the incident.
        · 6. The Trial Court, after a full-fledged trial has come to the
D conclusion that the prosecution could not prove the guilt of accused A3,
  A4,A6,A7,A8 andA9 beyond reasonable doubt and acquitted them by
  extending the benefit of doubt. However, the Trial Court found A 1 and
  AS guilty of the offences and sentenced them under Section 302, IPC to
  imprisonment for life and to pay a fine ofRs.l 0,0001- each and in default,
  to undergo rigorous imprisonment for six months. Further under Section
E 342, IPC, the accused were sentenced to undergo rigorous imprisonment
  for a period of six months under Section 143 and for a period of one year
  under Section 148, IPC. The sentences were however directed to run
  concurrently.
            7. Aggrieved by the conviction both appellant/Al and AS carried
F    the matter over to the High Court in appeal, where the High Court gave
     benefit of doubt to AS and allowed his appeal by acquitting hi'.ll of the
     offences charged. The appeal of appellant/A 1 was however dismissed
     by the High Court as being devoid of any merit, thereby confirming the
     order of conviction and sentence passed by the Trial Court.
G           8. We heard the learned senior counsel Mr. R. Basant appearing
     for the accused/appellant. He contended that the entire case is fabricated
     and foisted one suppressing the real incident that had taken place in
     order to falsely implicate the accused/appellant. He has vehemently
     argued that the prosecution has concocted the story to harass the accused
H    by taking advantage of his long standing rivalry with the deceased
    KANAKARAJAN @ KANAKAN v. STATE OF KERALA                                    81
                [N. V. RAMANA, J.)

concerning cutting of some rubber trees. At the alleged place of incident,      A
which is a temple compound, there were more than 10,000 people present
in addition to the police force stationed around the temple compound.
He points out that, when an incident of such grave nature had taken
place amidst huge public gathering and police force, it is impossible to
not have a single independent witness.
                                                                                B
        9. Another vital aspect pointed out by the learned senior counsel
is that making PW2 a witness to the alleged incident is an afterthought
of prosecution. PW2-the author of FIR and being cousin of deceased,
in connivance with his brother-in-law who was a Sub-Inspector of Police
in the same district, is the mastermind in implicating the accused. As a
matter of fact, on the night of the said incident, it was PW2 and the           C
deceased Rajesh who attacked A2 (the brother of Al) and kidnapped
him, due to their past enmity over cutting rubber trees belonging to another
brother of Al and A2. On the next day, the dead body of A2 was found
hanging from a tree under mysterious circumstances with his feet
touching the ground. Sixteen (16) ante mortem injuries were found in his        D
body and some greenish poisonous substance was found oozing from his
mouth. When Al visited the police station to report the mysterious death
of A2, instead the police arrested him in the present case. In order to
save PW2, his brother-in-law being Sub-Inspector of Police, concocted
the prosecution story and falsely implicated Al in the case. On A2's
mysterious death, the police had merely registered a case of unnatural          E
death and no proper investigation was conducted and no person was
prosecuted or arrested.
        10. Learned senior counsel further submitted that there was an
inordinate delay of24 hours on the pai1 of police in presenting the FIR
before the court and no reason has been given by the prosecution for            F
such delay. He further contends that the motive behind the crime, as
alleged by the prosecution, is so trivial and unbelievable, would not be a
sufficient reason for the accused to settle with such a heinous crime.
Further he submits that it was well known fact among the people living
in the vicinity that the deceased Rajesh was known to be a person of            G
bad character in the locality as he has previously indulged in various
illegal activities and had disputes with several people. According to learned
senior counsel this fact stands corroborated with the evidence of PW's
2 and 4. Doubting the reliability of prosecution witnesses, it is submitted
that out of the 23 prosecution witnesses, PW3 (eyewitness) turned hostile.
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82            SUPREME COURT REPORTS                          [2017] 5 S.C.R.


A PW 11 (panch witness) did not support the prosecution case on recovery
  of alleged weapon. The presence and conduct of PWs 4 and 5
  (eyewitnesses) at the place of occurrence is highly doubtful because
  despite being close friends of the deceased, even after witnessing the
  incident, neither did they accompany the injured to the hospital nor did
B they take effort to register a case with the police. Their statement was
  recorded by the police five days after the incident. Even PW4 in his
  evidence did not mention the name and presence of PWS at th~ alleged
  scene of offence. Learned senior counsel has finally submitted that
  though the High Court discarded the statement of PW2 as his presence
  at the place of offence was doubtful but the High Court still believed the
C story of prosecution and convicted the appellant while discharging other
  accused by giving them benefit of doubt. Hence, he prayed that the
  judgment of the High Court is perverse and that it is based on wrong
  reasoning, and therefore needs to be set aside by this Court.
         11. On the other hand, learned counsel appearing for the State
D supported the prosecution case on all aspects and submitted that the
  reasoning given by the High Court in convicting the accused is based on
  settled legal principles. The High Court clearly recorded the finding that
  though no reliance is placed on the testimony made by the prime witness
  (PW2), it may not make any difference in fastening the liability of the
  accused. Hence, the impugnedjudgment does not call for inte:ference
E by this Court.
          12. Having heard learned counsel for both side and after carefully
   analyzing the material available on record, the following point falls for
   our consideration is (1.) "Whether the High Court is justified in convicting
   the accused (Al) and (2.) Whetherthe prosecution could prove the guilt
 F of the accused beyond reasonable doubt"?
         13. Looking at the evidence on record we find that there are
  certain pivotal issues where the prosecution has failed to provide a
  satisfactory explanation. The facts on hand reveal that the incident took
  place at 2 AM on the night of s•h and 61h March 2000. The place of
G occurrence is in the compound of the temple. On that day an ox
  procession was going on, there was a huge gathering of people and also
  several police personnel were present to maintain law and order.
  Moreover PW2-the eye witness, who happens to be the cousin of the
  deceased, basing on whose information the criminal law was set into
H
    KANAKARAJAN @ KANAKAN v. STATE OF KERALA                            83
                [N. V. RAMANA, J.)

motion. According to his statement a police constable was present when A
the incident was taking place. Further he had tried to stop the accused
and was injured in the process. He carried the injured to the hospital at
Pallakkad in his own jeep. Later he did not accompany the deceased to
the Medical College Hospital Thrissur, where on the way dect.ased
succumbed to the injuries. He came to know about the death at 7:30 B
AM, he neither chose to go to the police nor to the doctor for treatment
and kept quiet till the police came to him. According to PW2 there are
several houses and shops in the vicinity of the place where the incident
took place, PW3 who is cited as eye witness turned hostile.
       14. The prosecution then relied upon the evidences of PW4 and
PWS; both of them have stated to have witnessed the incident and are C
cited as the independent witnesses. It is to be noted that the witness
statements of PW 4 and PW 5 were recorded five days after the incident.
PW4 deposed that he is a friend of deceased and got acquainted with
PW2 after the incident. He did not mention about the presence of PWS
at the time of incident. Admittedly no test identification parade was D
conducted and he did not know the names of accused persons as on the
date of occurrence. PW 11, the panchwitness for recovery of the we11pon,
has turned hostile. He deposed that he signed the document without
even knowing the contents of it.
        15. As per PW21 the Sub Inspector of Police, several policemen E
were on duty at temple premises. As per PW22 the C.I of police PW4
told him that there were 3 constables present at the scene of crime.
Neither PW4 nor PWS disclosed to him that they knew the accused
before the incident. They also did not mention the names of any of the
accused. In clear terms, he admitted that though he had interrogated the
people near the place of occurrence, he did not include them as witness. F
PW6 is the doctor who conducted post mortem on the deceased. PW 18
is the doctor who examined the dead body of deceased Ayyappan Kutty
(A2). According to him the cause of death was due to hanging. In the
report he mentioned that in the stomach portion there were few
unidentified food particles in a brownish fluid medium emitting an a
insecticide smell. He also expressed the view that there can be death of
the person or unconsciousness after consuming insecticide. Evidently
there were 16 ante mortem injuries on his body and was found hanging
from a tree with his feet touching the ground. There is no investigation
or explanation put forth by the prosecution for these injuries.
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84            SUPREME COURT REPORTS                          [2017] 5 S.C.R.


A           16. The crucial evidence of DWI is that on the evening of
     5.3.2000, he saw Rajesh (deceased) scuffling with an Auto Rickshaw
     driver when A2 interfered and separated them taking the side of Auto
     Rickshaw driver. Later in the midnight, Rajesh (deceased) holding a
     liquor bottle in one hand and knife in the other hand, attackedA2. At that
B    point of time, when people started gathering, 2-3 people had taken away
     Ayyappan Kutty (A2) from there. The next day at 9.30 am the body of
     A2 was found hanging from a tree with his legs touching the ground.
          17. In the backdrop of these facts and circumstance a closer look
  at the evidence of prosecution witnesses, in particular PW2, PW4 PWS,
  PW! 1, PW12, PW21 and PW22, would reveal that these witnesses are
C not cogent and trustworthy to form basis to convict the appellant.
  Admittedly the incident had taken place in the midst of several hundred
  people and the prosecution witnesses in equivocal terms stated that the
  police personnel were present. There is nothing on record to show that
  the police constables available at the scene of offence were examined
D or that they have played any role in preventing the accused. The conduct
  of PW2 in not accompanying the accused to the second hospital, not
  giving the complaint to the police and not getting his injuries treated
  raises serious doubts and supports the case of the defense that PW2 is
  the king pin who has implicated the accused with the help of his brother-
  in-law who is in the police department. Above all when the High Court
E disbelieves the presence of PW2, at the scene of offence, it ought not to
  have taken into consideration his evidence to convict the appellant. The
  prosecution has not taken minimum care to examine the independent
  witnesses in support of their case and particularly when it is nobody's
  case that independent witnesses were not available.
F        18. We feel that non examination of credible independent witnesses
  in this case is very much fatal to the prosecution's case. Particularly
  when it is their own case that there were several shops and houses in
  the vicinity and several people were present. It is not necessary that in
  each and every case on the ground of non examination of independent
G witnesses the case of the prosecution has to be brushed aside, if the
  evidence of prosecution witnesses is consistent, cogent and corroborated
  by other evidence it can be safely relied upon, but it is not so in the case
  at hand. The High Court disbelieved the presence of PW2, PW3 turned
  hostile, statements of PW4, PWS and PW 22 do not inspire confidence.
  No other independent witness is examined. PW 11 the panchwitness for
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    KANAKARAJAN @ KANAKAN v. STATE OF KERALA                                   85
                [N. V. RAMANA, J.]

recovery of weapon has also turned hostile and deposed that he signed          A
without reading the same. Moreover there is no evidence to show any
results of forensic examination of the weapon so recovered. In our
considered opinion the High Court, while convicting the appellant, should
have been more cautious while weighing the evidence of these prosecution
witnesses.
                                                                               B
       19. It is to be noted that the High Court has undertaken a scientific
hypothesis to conclude that the difference or time of death, between the
deceasedA2 and Rajesh, were not connec:.:d. High Court's reliance on
conjectural premise built upon the timing of rigor mortis, when the
surrounding circumstances were suspicious, would not be safe to be
followed. The next important aspect which requires our consideration is        c
non-explanation of the injuries on the body of deceased A2. The death
of deceased A2 as per ocular and medical evidence appears to be under
suspicious circumstances. It is a clear case of latches on the part of
prosecuting agency in conducting investigation goes to the root of the
matter. Non-explanation of the serious injuries on the body of the accused     D
A2 by the prosecution is fatal in this case.
       20. In this case the High Court while convicting the accused has
overlooked settled principles of criminal law and in a mechanical way
based its conclusion on the premise that the injuries were not sustained
in the process of the same incident. In a case of this nature, where the
investigating agency utterly failed in its duty to thoroughly investigate      E
and find out the reasons for the death of A2 who is alleged to be the
prime accused in causing the death of the deceased, convicting an accused
would not be safe.
        21. The other ground put forth by the learned senior counsel is in
respect of motive. According to him the motive attributed to the accused       F
is that he had cut the rubber trees belonging to the brother of the accused
four (4) years prior to the incident and it is not a sufficient motive to
commit such a heinous crime. Needless to say that in this case the motive
is a double edged sword, as it can be a reason for crime and at the same
time a reason for false prosecution specially when the motive alleged is       G
of ill-will and bad blood. In the present case evidence on record does not
inspire confidence. Therefore, reliance on the motive would not be safe
and as _such serves no purpose.
       22. The other glaring aspect is non-conduction of the test
identification parade. This aspect gains relevance as PW4 and PWS,
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86            SUPREME COURT REPORTS                        [2017] S S.C.R.


A who are cited as eye witnesses to the incident, deposed that they have
  not mentioned the names of the accused and that they did not know the
  accused.
         23. Therefore we find that the prosecution case is filled with
  infirmities and lacunas, therefore the only possible and probable course
B left open is to grant benefit of reasonable doubt to the appellant herein.
  Resultantly, the impugned judgment is set aside and the appeal is allowed.
  The bail bonds of the appellant stands discharged.


     Ankit Gyan                                                Appeal nllowed.