Farooq
@ Karattaa Farooq & Ors Vs. State of Kerala [2002] Insc 190 (9
April 2002)
M.B.
Shah & B.N. Agrawal B.N.Agrawal, J.
Appeal (crl.) 1049-50 of 2001
Criminal
Appeal Nos. 656-57 of 2001 are by four appellants, namely, Farooq @ Karattaa Farooq
(accused No. 1), Sathar (accused No. 2), Ayoob @ Blood Ayoob (accused No. 7)
and Hashim (accused No. 8) against their convictions and sentences whereas
Criminal Appeal Nos. 1049-50 of 2001 are by the State against the order of
acquittal passed by the High Court whereby Manaf (accused No. 3) and Sulaiman
(accused No. 9) have been acquitted by the High Court. Appellants of Criminal
Appeal Nos. 656-57 of 2001 and respondents in Criminal Appeal Nos. 1049-50 of
2001 were charge sheeted accused persons along with accused Anildas, Sajeer and
Rafeek whose trial was separated as they were absconders. Nine accused persons
were tried and the trial court acquitted three accused persons, namely, Suja
(accused No. 4), Shanavas (accused No. 5) and Lalkhan (accused No. 6) whereas convicted
the remaining six accused persons under Section 302 of the Indian Penal Code
(hereinafter referred to as the 'Penal Code') read with section 34 of the Penal
Code. Accused Nos. 1 and 2 were awarded death penalty and the records were
submitted to the High Court for confirmation of sentence of death whereas other
four accused persons were awarded imprisonment for life. All the aforesaid
accused persons excluding accused No. 3-Manaf were further convicted under
Section 302/120-B of the Penal Code and sentenced to imprisonment for life.
Accused
No. 3-Manaf was, however, convicted under Section 302/109 of the Penal Code and
sentenced to undergo imprisonment for life. All the accused persons were also
convicted under Section 307 read with Section 34 of the Penal Code and
sentenced to undergo imprisonment for life. They were then convicted under
Section 324 read with Section 34 of the Penal Code but no separate sentence was
awarded against any of them. Each of the accused was also convicted under
Sections 3 and 5 of the Explosive Substances Act and sentenced to undergo
imprisonment for life and rigorous imprisonment for a period of 10 years
respectively. The sentences were, however, ordered to run concurrently. On
appeal being preferred, convictions and sentences awarded against accused Nos.
1,2, 7 and 8 have been confirmed by the High Court whereas accused Nos. 3 and 9
have been acquitted.
Prosecution
case, in short, is that the deceased Kabir was an under trial prisoner at the
Sub Jail, Thiruvananthapuram which is situated at Attakulangara, Thiruvanathapuram.
On 16th July, 1998 at 1.50 p.m. deceased Kabir and PW 9 Vinil Kumar, another under trial
prisoner, were taken to the Court of Judicial Magistrate First Class, Attingal
accompanied by two police constables, PWs 15 and 16. They were acquitted by the
Magistrate's Court in that particular case but since many other cases were
pending against them they were taken back to the Sub Jail. Both the deceased Kabir
and PW 9 were handcuffed together using a single handcuff. On their way back to
the Sub Jail with police escort, when they reached near the Western gate of the
Sub Jail which is situated at the eastern side of the Attakulangara-Manacaud
Public road, accused Anildas @ Ani @ Jeerakam Ani (absconding accused) took an
explosive substance from the plastic bag kept by him and handed over to Sathar
(accused No. 2) who hurled the explosive substance on the back of the head of
the deceased Kabir causing a severe and strong explosion thereby the back
portion of the head of the deceased was blown out into shreds and smithereens
and in a trice, Kabir died instantaneously. PW 9 who was the co-prisoner and
handcuffed along with the deceased, PW 15 and PW 16 - policemen who were on
escort duty and Sudheer Kumar (PW 12) who was a pedestrian sustained very
serious injuries and deformities in the explosion. During that time, Manaf
(accused No. 3) kept motor cycle belonging to Lalkhan (accused No. 6) ready for
riding at the place in front of Buhari Hotel being conducted by R.Naushad (PW
10) which is situated some distance away towards north west of the place of
occurrence.
Sathar
(accused No. 2) after hurling the explosive substance on deceased Kabir and the
consequent explosion, ran across the road towards the said motor cycle, with
chopper in his hand and alighted on the pillion of the said motor cycle.
Farooq
(accused No. 1) was waiting and standing with Ayoob (accused No. 7), Hashim
(accused No. 8) and Rafeek (absconding accused ) with car bearing registration
No. KRV-3106 belonging to the said Rafeek near Madanthampuran Temple situated adjacent to the shop of
P.W.2 which is situated towards north west of the scene of occurrence, with mobile phone for giving timely
instructions and guidance for the successful completion of the operation of the
assassination.
Just
after the explosion, Farooq (accused No. 1), Ayoob (accused no. 7) and Hashim
(accused No. 8) and accused Rafeek readily kept all the four doors of the car
opened for enabling the smooth entry of Anildas (absconding accused) into the
car. The said accused Anildas ran towards the said car and got into it.
Farooq
(accused No. 1), Ayoob (accused no. 7), Hashim (accused No. 8) and accused Rafeek
also got in the car and closed the doors. At the very same time, Suja (accused
No. 4) and Shanavas (accused No. 5) were also waiting with another motor cycle
belonging to Suja (accused No. 4) towards north to the scene of occurrence for
giving guidance and timely instructions to Sathar (accused No. 2) and accused Anildas
for carrying out the operation. Manaf (accused No. 3) with Sathar (accused No.
2) sitting at the rear seat of Motor Cycle, raised it and rode it in an
alarming speed towards the car which was facing towards Sreevaraham location
near the temple. Suja (accused No. 4) and Shanavas (accused No. 5) also in
great speed, sped the Motor Cycle towards the car. All the aforesaid accused
persons sped away from the scene in the said car and the motor cycle together
after exchanging signs and had signals amongst them regarding the successful
completion of the assassination. Sajeer (absconding accused) used another
mobile phone with him for giving timely information to Farooq (accused No. 1)
regarding the movement of the deceased etc. and that Lalkhan (accused No. 6)
knowingly entrusted his motor cycle for carrying out the operation. It was
alleged by the prosecution that Sulaiman (accused No. 9) had previous enmity
towards the deceased Kabir and he wanted to do away with Kabir at any cost and
hence he hired the services of Farooq (accused No. 1) and his associates.
According to the prosecution the incident which resulted in the death of Kabir
was as a result of criminal conspiracy hatched up by all the aforesaid accused
persons. Stating the aforesaid facts, a first information report was lodged,
and the police after registering the case, investigated the same and on
completion thereof, submitted charge-sheet.
Thereupon,
the learned Magistrate took cognizance and committed the accused persons to the
court of Session to face trial.
Defence
of the accused persons was that they were innocent, had no complicity with the
crime and were falsely implicated in the case. During trial, the prosecution
examined 79 witnesses in all and 117 documents were exhibited on its behalf.
The defence, however, did not examine any witness in the case on hand. Upon the
conclusion of trial, the trial Court convicted the accused persons as stated
above and upon appeal being preferred, convictions and sentences of some of the
accused have been confirmed whereas two of them have been acquitted as stated
above. Hence, these appeals by special leave both on behalf of the accused
against the order of their convictions as well as on behalf of the State
against the order of acquittal recorded by the High Court.
Shri U.R.Lalit,
learned senior counsel appearing on behalf of the appellants in Criminal Appeal
No. 656-57 of 2001 did not assail the impugned judgments on the factum of the
occurrence but challenged the same in relation to their participation in the
crime. Learned counsel in the alternative submitted that, in any view of the
matter, it was not a case where the extreme penalty of death was called for as
the same did not fall within the category of rarest of rare cases.
On the
other hand, learned counsel appearing on behalf of the State submitted that the
High Court was quite justified in upholding the convictions and sentences
awarded against the appellants. In support of Criminal Appeal Nos. 1049-50 of
2001 preferred by the State, Shri K.R. Sasiprabhu, learned counsel appearing on
its behalf submitted that the High Court was not justified in recording
acquittal of Manaf (accused No. 3) and Sulaiman (accused No. 9). Shri Sushil
Kumar, learned senior counsel appearing on behalf of the respondents in these
appeals submitted that the High Court was quite justified in recording
acquittal of the aforesaid two accused persons and the judgment of acquittal
does not suffer from any infirmity much less perversity. Therefore, in relation
to factum of the occurrence, neither learned counsel appearing on behalf of the
accused persons could assail the judgment nor we find any infirmity in the well
reasoned judgment rendered by the High Court upholding the very detailed
judgment passed by the trial court.
Thus,
in Criminal Appeal Nos. 656-57 of 2001, we are called upon to examine evidence
showing complicity of the four appellants with the crime and consider their
cases individually. Appellant Farooq (accused No. 1) is said to have been
identified by prosecution witnesses, namely, S. Ramachandran Nair (PW 2), S.Anil
Kumar (PW 5) and N. Madhusoodhanan (PW 14). PW 2 claimed to be an eye witness
of the alleged occurrence. In examination-in-chief, he claimed to have
identified this appellant but in cross-examination, the witness had no option
but to admit that he could not tell name of this appellant to the police which
disclosed to him name of this appellant. It shows that the so called
identification of this appellant by the witness is farce and cannot be relied
upon.
PW 5
claimed to be the eye witness of the occurrence as he had gone to the lottery
shop belonging to PW 2 to check the lottery result as he had taken a lottery
ticket. He claimed to have witnessed the occurrence from a distance of 25 feet
only and knew this appellant from much before and identified him by name.
The
evidence of this witness was assailed on two grounds, firstly, that though, he
went to the lottery shop of PW 2 and met him but PW 2 in his evidence is silent
about the presence of this witness in his shop at the time of the alleged
occurrence. This is a mere omission and the same itself cannot affect the
veracity of the witness if his evidence is otherwise found to be credible.
Secondly,
it has been submitted that the witness did not tell anything about the incident
even to his wife. In our view, non disclosure of this fact by the witness to
anybody cannot alone be a ground to discredit his evidence especially when the
offence had been committed in a broad day light at the jail gate when the
victim was in judicial custody, people were panicky and, therefore, if a
witness could not dare to disclose the factum to anybody, the same cannot show
that his conduct was unnatural. This witness has consistently supported the
prosecution case in all material particulars and there is no reason to discard
his evidence. PW 14 also claimed to be the eye witness of the alleged
occurrence. According to him, he did not know the accused from before but he
identified him in Court. This witness had gone to the watch shop for taking his
watch which was given for repair and when he was in front of the shop, he found
four persons came in a car including this appellant and they were looking
towards the Sub Jail. After the incident, it was said that this appellant got
into the back seat of the car. The witness has stated during the course of
cross-examination that he did not know the appellant from before but the police
called him at the police station and got this appellant identified inasmuch as
disclosed name of the appellant before this witness. This being the position,
no reliance can be placed upon evidence of the witness on the question of
participation of this appellant. Thus, so far as appellant No. 1 is concerned,
it is not possible to place reliance upon the evidence of PWs 2 and 14 on the
question of participation of this appellant but the evidence of PW 5 is
unimpeachable.
Now,
we consider the evidence against appellant Sathar (accused No. 2) who is said
to have been identified by G.Chandrasekharan Nair (PW 7) and K.Sajilal (PW 13)
and out of whom, PW 7 claimed to be the eye witness of the occurrence. He
claimed that one person of short stature who had a plastic kit in his hands and
took a bundle from inside the said kit and made over the same to the tall
person meaning thereby this appellant who is said to have hurled bomb at the
prisoner Kabir who was in judicial custody which hit him and he succumbed to
the injuries. It has been further stated that after hurling the bomb, this
appellant was found fleeing with a chopper in his hands. It appears that this
witness has introduced the story for the first time in Session Court that a
person of short stature had made over explosive substances to this appellant
describing him as a tall person as he did not make any such statement before
the police as it appears from the evidence of the investigating officer V.B.Ramesh
Kumar(PW 79). In Court, when the chopper was shown to the witness, first he
denied the chopper to be the same one which was carried by this appellant but
later on he admitted the same to be the chopper which was carried by this
appellant. The witness has admitted that during investigation, when he went to
the police station two weeks after the incident, the police showed him the
chopper which was in the hands of this appellant. These facts make the evidence
of this witness on the question of participation of this appellant highly
doubtful especially when undisputedly this accused was not known to the witness
from before. PW 13 stated that he had a shop and had gone for purchasing bananas
and after purchasing, when he was returning in an auto rickshaw and passing
through the place of occurrence in front of the Sub Jail, there was sound of
explosion and he found that this appellant was running away with a chopper in
his hands. The witness specifically admitted that he knew this appellant since
last five to six years and he was found running with a chopper and mounted on
the back seat of motor cycle parked in front of Buhari hotel immediately after
the incident. It has been submitted that the driver of the auto rickshaw who
was the most competent person to prove the presence of this witness at the
place of alleged occurrence has not been examined. In the case on hand, we find
that this witness has supported the prosecution case consistently in all
material particulars and nothing could be pointed out to create doubt regarding
veracity of his evidence, therefore, merely because driver of the auto rickshaw
was not examined, his evidence cannot be thrown out . Thus, so far as the
appellant No.2 Sathar is concerned, it is not possible to place reliance of
evidence of PW 7 but so far PW 13 is concerned, his evidence is free from any
doubt.
Lastly,
we proceed to consider the case of appellants Ayoob (accused No. 7) and Hashim
(accused No. 8) who are said to have been identified by S. Ramachandran Nair
(PW 2), S.Anil Kumar (PW 5) and N. Madhusoodhanan (PW 14). These two appellants
were not known to any of these witnesses. PW 2 claimed to have identified them
but during cross- examination, he specifically admitted that the police told
him the names of these appellants at the police station. PW 5 stated in his
evidence that when he went to the police station to give his statement, these
appellants were shown to him.
PW 14
in his examination-in-chief, though claimed to have identified these appellants
but during the course of re-examination, he admitted that these accused persons
were shown to him and the police got them identified at the police station.
Thus, so far as appellant Nos. 7 and 8 are concerned, in our view, it is not
possible to place reliance upon the evidence of any of three witnesses and
there being no other evidence to show their complicity with the crime, it is
not possible to uphold their convictions.
Next
question which is to be considered is as to whether the High Court was
justified in upholding the death penalty imposed against appellant Farooq and
appellant Sathar. Reference in this connection may be made to the Constitution
Bench decision of this Court in the case of Bachan Singh v. State of Punjab,
AIR 1980 SC 898, as well as, following the same, three Judge Bench decision of
this Court in Machhi Singh & Ors. v. State of Punjab 1983 (3) SCC 470,
wherein various circumstances have been enumerated and it was laid down that if
the case squarely falls within its ambit, only in that eventuality, death
penalty can be awarded. It was observed that in rarest of rare cases when
collective conscience of the community is so shocked that it will expect the
holders of the judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise retaining death
penalty, such a penalty can be inflicted. In the facts and circumstances of the
present case, it is not possible to come to the conclusion that the present
case would fall within the category of rarest of rare one. Therefore, we are
clearly of the opinion that in the fitness of things, extreme penalty of death
was not called for and the same is fit to be commuted to life imprisonment.
So far
as appeals preferred by the State against the acquittal of Manaf (accused No.
3) and Sulaiman (accused No. 9) who are respondents in Criminal Appeal Nos.
1049-50 of 2001 are concerned, learned counsel appearing on behalf of the State
could not point out any infirmity in the impugned judgment of the High Court
much less to show that the order of acquittal was perverse one.
We are
of the opinion that the High Court was quite justified in recording acquittal
of these two accused persons and the view taken by it appears to be quite
reasonable one and the same does not suffer from any infirmity much less
perversity. Therefore, it is not possible to interfere with the same.
In the
result, Criminal Appeal Nos. 656-57 of 2001 are allowed in part so far as it
relate to appellants Farooq and Sathar and while upholding convictions and
sentences of imprisonment awarded against them the sentence of death penalty is
commuted to imprisonment for life. We direct that all the sentences awarded
against these appellants shall run concurrently. Appeals of appellants Ayoob
and Hashim are allowed, their convictions and sentences are set aside and they
are acquitted of all the charges. These appellants who are in custody are
directed to be released forthwith, if not required in connection with any other
case. Criminal Appeal Nos. 1049-50 of 2001 fail and the same are, accordingly,
dismissed.
J.
[M.B.SHAH
] J.
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