Suresh @ Unni @ Vadi Suresh vs The State Of Kerala

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2024 [Arising out of Special Leave Petition (Criminal) No.1414 of 2021]

SURESH @ UNNI @ VADI SURESH ...APPELLANT (S)

VERSUS THE STATE OF KERALA ...RESPONDENT (S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. This appeal challenges the judgment and order dated

06th December, 2012 passed by the Division Bench of the

High Court of Kerala at Ernakulam (“High Court” for short) in

Criminal Appeal No. 871 of 2011 wherein the High Court

partly allowed the said Criminal Appeal preferred by Suresh

@ Unni @ Vadi Suresh, the present Appellant, and set aside

the conviction of the present Appellant under Sections 3(a)

Signature Not Verified and 4(a)(i) of the Explosive Substances Act, 1908 and Section Digitally signed by Narendra Prasad Date: 2024.05.01 11:18:14 IST Reason: 1 27(1) of the Arms Act, 1958 while confirming the conviction

of the present Appellant under Sections 302, 307,143, 147,

148, 324, 326, 427 and 449 read with Section 149 of the

Indian Penal Code, 1860 (“IPC” for short) as recorded by the

learned Additional Sessions Judge, Ernakulam (hereinafter

referred to as the ‘trial court’) in Sessions Case No.465 of

2008. The High Court also reduced the sentence of the

present Appellant awarded under Section 307 read with

Section 149 of the IPC from life imprisonment to rigorous

imprisonment for 10 years along with a fine of Rs. 10,000

and further modified the amount of fine payable for the

commitment of the offence punishable under Section 302

read with Section 149 of the IPC as awarded by the trial

court from Rs. 01 lakhs to Rs.10,000. Insofar sentences for

the offences punishable under the remaining Sections were

concerned, the High Court upheld the order passed by the

trial court.

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3. Shorn of details, the facts leading to the present appeal

is as follows:

3.1 On 06th March, 2006, at about 10:55 a.m., the Control

Room, Ernakulam received information about an unlawful

assembly that had broken into a video shop run by Ajeesh

(PW-2) with the common object of murdering him and had

thereafter proceeded to cause grievous injuries to PW-2 and

his friend Kapil (hereinafter referred to as ‘the deceased’) with

deadly weapons, before hurling country-made bombs into the

said video shop and an adjacent grocery store, run by PW-2’s

father, and had subsequently fled from the scene. On

receiving the said information, the ASI (PW-6) along with a

flying squad reached the spot of the incident, where they

found the deceased in an injured state and took him to RCM

Hospital, Tripunithura, where he was declared dead upon

medical examination. In the meanwhile, Jaimon (PW-1) who

was an eyewitness to the incident, received information about

the death of the deceased while he was at Medical Centre,

3 Ernakulam where the injured PW-2 was being treated.

Thereafter, PW-1 went to Hill Palace Police Station,

Tripunithura and furnished a statement (Ext. P1 F.I.) on the

basis of which a First Information Report (“FIR” for short)

being Case Crime No. 137 of 2006 was registered against the

members of the unlawful assembly. Subsequently, the post

mortem of the deceased was conducted wherein it was

concluded that his death had been caused by a stab injury

involving the aorta.

3.2 The prosecution case is that Ajeesh (PW-2) and his

father Rajappan were close to the family of one Vidyadharan

who had been kidnapped and murdered by a group led by

Jaison (Accused No.1) on account of prior enmity between

them, since Vidyadharan had opposed the drug trade which

was led by Jaison (Accused No.1). In the investigation and

trial that followed, PW-2 and his father lent their assistance

to the prosecution case therein, which instigated Jaison

(Accused No.1) and 10 of his other associates, including the

4 present Appellant, to hatch a criminal conspiracy to commit

the murder of PW-2. Pursuant to the same, on 06 th March,

2006 at about 10:45 a.m., the 11 accused persons formed an

unlawful assembly with the common object of murdering PW-

2, and set out in a silver Qualis car towards the video shop

run by PW-2 under the name of ‘Kalaya Videos’, which was

situated in a building bearing No.7/274 of Udayamperoor

Panchayat, near Kochupally Junction. The car bore a fake

registration plate and had been rented from Ajith (PW-9) by

Jaison (Accused No.1) after the deposit of a signed blank

cheque and his driving license. On the day of the incident,

PW-2 had opened the said video shop at about 10:00 a.m.

after which the deceased had reached the shop to invite PW-2

for the obsequies of his father who had passed away a few

days earlier. While they were chatting inside the shop,

Jaimon (PW-1), their common friend, also reached the shop

and they were subsequently joined by another friend, Siju

(not examined).

5 3.3 At about 10:45 a.m., the accused persons who were

armed with deadly weapons like swords, koduwal, choppers

and iron pipes, and were carrying country-made bombs,

smashed the glass door of the video shop and trespassed into

the same. Thereafter they pushed the deceased, PW-1 and

Siju out of the way and proceeded to attack PW-2 with the

said weapons. When the deceased tried to intervene, Jaison

(Accused No.1) directed the other accused persons to kill the

deceased which instigated Accused No. 2 to stab the deceased

in his abdomen with a dagger, who ran out of the shop and

went into the house of PW-2’s father where he collapsed on

the floor. Thereafter, the accused persons inflicted several

injuries on PW-2 who also ran out of the video shop in his

injured state but was chased by the accused persons who

inflicted further injuries on him, which resulted in him falling

down underneath a guava tree. Subsequently, the accused

persons hurled country-made bombs into the video shop and

the grocery store run by PW-2’s father and thereafter, they

6 fled the scene in their silver Qualis. Subsequently, PW-2’s

neighbour Girish (PW-26), a police constable who was on

leave on the day of the incident, reached the video shop of

PW-2 after hearing the sound of the bombs exploding, where

he found PW-2 in an injured state. Thereafter, PW-2’s father

and PW-26 took him to Medical Centre, Ernakulam. However,

given the severity of his condition, he was referred to

Specialist Hospital, Ernakulam where he was admitted as an

in-patient and treated for his injuries.

3.4 Upon the conclusion of the investigation and after the

Appellant was arrested in 2008, an additional chargesheet

was filed against him before the Court of the Additional Chief

Judicial Magistrate, Ernakulam wherein he was arrayed as

Accused No.6 in the FIR being Case Crime No. 137 of 2006.

Since the case was exclusively triable by the Sessions Court

the same came to be committed to the Court of the learned

Additional Sessions Judge.

7 3.5 Charges came to be framed by the trial court for the

offences punishable under Sections 302, 307, 143, 147, 148,

120B, 201, 324, 326, 427, 449 read with Section 149 of the

IPC and Section 27 of the Arms Act, 1959 and Sections 3 and

4 of the Explosive Substances Act, 1908 against the present

Appellant. The present Appellant pleaded not guilty and

claimed to be tried.

3.6 The prosecution examined 43 witnesses, marked 77

exhibits and identified 39 Material Objects to bring home the

guilt of the accused persons, including the present Appellant.

In his defence, the present Appellant stated that he had been

arrested from Ettumanoor in 2008, two-years subsequent to

the filing of the FIR, and that his name was Suresh Mohan

and not Suresh. As such, the Appellant contended that he

had been falsely implicated in the case.

3.7 At the conclusion of the trial, the trial court found that

the prosecution had proved the case against the present

Appellant and the other accused persons beyond reasonable

8 doubt and accordingly convicted him for the offences

punishable under 302,307,143,147,148,324,326,427 and

449 read with Section 149 of the IPC and Section 27 of the

Arms Act, 1958 and Sections 3 and 4 of the Explosive

Substances Act, 1908 and sentenced him to undergo

imprisonment for life along with a fine.

3.8 Being aggrieved thereby, the present Appellant preferred

a Criminal Appeal before the High Court. The High Court by

the impugned judgment partly allowed the Criminal Appeal in

the aforementioned terms.

3.9 Being aggrieved thereby, the present appeal.

4. We have heard Shri A. Sirajudeen, learned Senior

Counsel appearing for the appellant and Shri Alim Anvar,

learned counsel appearing for the respondent-State of Kerala.

5. Shri A. Sirajudeen, learned Senior Counsel submitted

that the present Appellant has been identified for the first

time in Court by PW-1 and PW-2. He submitted that insofar

as the other two eyewitnesses i.e., PW-12 and PW-14 are

9 concerned, they do not say anything about the role played by

the present Appellant. It is submitted that the present

Appellant was not known previously to any of above 4

witnesses. As such, identification for the first time in the

Court without holding ‘Test Identification Parade’ creates a

serious doubt as to whether these witnesses i.e., PW-1 and

PW-2 have really seen the present Appellant taking part in

the crime. It is further submitted that the present Appellant

was initially described as ‘Unni’ in the first charge-sheet and

in the second charge-sheet, he was described as ‘Suresh alias

Vadi Suresh’. He further submitted that, insofar as the

motive is concerned, the motive is attributed to Accused

No.1-Jaison and not to the present Appellant. He therefore

submitted that the present appeal deserves to be allowed and

the order of conviction and sentence be set aside.

6. Shri Alim Anvar, on the contrary, submitted that PW-2

is an injured eyewitness. It is submitted that if a witness is

an injured witness, his evidentiary value would be of greater

10 degree. He submitted that PW-2 had seen the accused

persons including the present Appellant assaulting him and

therefore it is possible for him not to forget the faces of the

assailants. Learned counsel further submitted that both the

trial court as well as the High Court, on correct appreciation

of the evidence, have concurrently found that the prosecution

has proved beyond reasonable doubt that the present

Appellant is guilty of the crime. It is therefore submitted that

no interference is warranted in the present appeal.

7. With the assistance of the learned counsel for the

parties, we have scrutinized the evidence on record. It is not

disputed that the death of the deceased is homicidal and as

such, it will not be necessary to refer to the medical evidence.

The prosecution relied on the testimonies of PW-1, PW-2, PW-

12 and PW-14.

8. A perusal of the testimonies of PW-12 and PW-14 would

reveal that they do not say anything about the present

11 Appellant. As such, it will only be necessary to refer to the

testimonies of PW-1 and PW-2.

9. It is relevant to note that the incident took place on 6 th

of March 2006. Whereas the testimonies of the witnesses

were recorded in the month of August 2010 i.e.,

approximately four and half years after the date of the

incident.

10. A perusal of the testimonies of PW-1 and PW-2 would

reveal that it is only the Accused No.1-Jaison, who is known

to them, and the other accused persons were not known to

them.

11. PW-1 in his evidence stated that, while he was chatting

with PW-2, the Accused No.1-Jaison and other 4-5 people

jointly broke the front glass of the shop and entered into the

shop. He stated that a fair and fat man pulled and dragged

the deceased Kapil out of the shop. A man with a bag in his

hand had dragged him also out of the shop. PW-2-Ajeesh

was standing inside the cabin of the shop. Accused No.1-

12 Jaison entered the shop and attacked PW-2-Ajeesh with a

sword. He further submitted that when the deceased Kapil

tried to enter into the shop, Accused No.1-Jaison shouted

from the shop that, ‘kill him’. After hearing this, a fat and

fair man took a tool from the box and pierced it into the

deceased Kapil’s stomach. It is stated that PW-2-Ajeesh was

attacked by Accused No.1-Jaison and his fellow men inside

the cabin. PW-2-Ajeesh jumped out of the cabin and came

out of the shop. He tried to run away but fell down near one

house under a guava tree. However, again PW-2-Ajeesh was

attacked with sickle, sword and iron pipes on his legs and

hands. It is stated that thereafter PW-2-Ajeesh was taken

into an auto-rikshaw by his father Rajappan and a neighbour

Girish (PW-26) to the Medical Centre. He stated that

deceased Kapil was hospitalized by the Police. PW-1 further

stated that when he went to the hospital, he came to know

that deceased Kapil had died. It is stated that thereafter he

went to the Hill Palace Police Station and gave information

13 regarding the incident. He further identified the present

Appellant saying that another man involved in the incident is

present now and pointed towards the present Appellant.

12. In his cross-examination, PW-1 clearly admitted that he

does not know the accused persons except Accused No.1-

Jaison. He has also admitted in his cross-examination that

after the present Appellant’s arrest, Police had shown the

present Appellant to him in the Police Station.

13. Insofar as PW-2-Ajeesh is concerned, no doubt that he

is an injured eyewitness. In his evidence, he had made

similar narration as that of PW-1. From the perusal of his

evidence, it would reveal that he knew only Accused No.1-

Jaison. He identified the present Appellant as one of the

persons who was accompanying Accused No.1-Jaison. In his

cross-examination, he clearly admitted that he had not

identified the present Appellant or the weapons before the

Magistrate. He had also admitted that the identification

parade was not done so the present Appellant was not

14 identified. He further stated in his evidence that till the

Police had brought the accused/present Appellant to home,

the name of the present Appellant was not known to him. He

further stated in his evidence that he did not know whether

the accused called Suresh i.e., present Appellant was in the

accused list.

14. It is to be noted that though the incident is of the year

2006, the present Appellant was arrested in the year 2008. It

is further to be seen that apart from the identification parade

not being held, the accused/present Appellant was shown to

the witnesses by the Police. As such, we are of the

considered view that conviction only on the basis of

identification of the accused in the Court for the first time

after four and half years of the incident would not be

sufficient for maintaining the same.

15. Insofar as the motive is concerned, the motive is

attributed only to Accused No.1-Jaison and not to the present

Appellant.

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16. The prosecution also relied on the recovery of iron rod

allegedly on the memorandum of the present Appellant under

Section 27 of the Indian Evidence Act, 1872. However, it is

to be noted that the incident took place on 6 th March 2006,

whereas the recovery was made on 11 th May 2008 i.e., after

about 2 years and 2 months. According to the prosecution,

the said iron rod also had blood stains. It is difficult to

believe as to how the blood stains still remained on the said

iron rod which was recovered from an open place after about

2 years and 2 months and when in the intervening period two

monsoons had passed. As such, no credence could be given

to the said recovery.

17. The possibility of mistaken identity also cannot be ruled

out. In the first charge-sheet, the present Appellant was

described as ‘Unni’, whereas in the second charge-sheet, he

was described as ‘Suresh alias Vadi Suresh’.

18. In that view of the matter, we find that the prosecution

has failed to prove the case beyond reasonable doubt.

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19. In the result, the appeal is allowed. The judgment and

order dated 30th March 2011 passed by the Additional

Sessions Judge, Ernakulam in Sessions Case No. 465 of

2008 and the judgment and order dated 6th December 2012

passed by the High Court of Kerala at Ernakulam in Criminal

Appeal No.871 of 2011 are quashed and set aside. The

present appellant is acquitted of all the charges charged with.

He is directed to be set at liberty forthwith, if not required in

any other case.

…….........................J. [B.R. GAVAI]

…….........................J. [SANDEEP MEHTA]

NEW DELHI;

APRIL 30, 2024

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