Conviction not to be maintained only on the basis of identification of accused in Court for the first time after 4-and-a-half years of the incident: SC acquits murder convict sentenced to 10 years imprisonment  
Justices B.R. Gavai& Sandeep Mehta [30-04-2024]

Read Order: SURESH @ UNNI @ VADI SURESH v. THE STATE OF KERALA [SC- CRIMINAL APPEAL NO. 2332 OF 2024]

Tulip Kanth

New Delhi, May 1, 2024: Taking note of the fact that the testimonies of the witnesses, in a 2006 murder case, were recorded almost four-and-a-half years after the date of the incident and the appellant was arrested 2 years later, the Supreme Court has acquitted him of all the charges.

The incident is of the year 2006 when 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-2s 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. 

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 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.

The prosecution case was 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 present Appellant, to hatch a criminal conspiracy to commit the murder of PW-2. 

Pursuant to the same, 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. 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. 

It was alleged that the accused persons hurled country-made bombs into the video shop and the grocery store run by PW-2s father and thereafter, they fled the scene.

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. 

The appeal was filed before the Top Court against the judgment passed by the Division Bench of the High Court of Kerala 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) and 4(a)(i) of the Explosive Substances Act, 1908 and Section 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) as recorded by the Trial Court. 

The Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta opined that the incident took place on March 6, 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.

It was noted that though the incident is of the year 2006, the present Appellant was arrested in the year 2008. It was 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”, the Bench said.

Insofar as the motive was concerned, the motive was attributed only to Accused No.1-Jaison and not to the present Appellant. 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, the incident took place on March 6 2006, whereas the recovery was made on May 11, 2008 i.e., after about 2 years and 2 months. 

Noting that the prosecution had stated that the said iron rod also had blood stains, the Bench said, “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.”

The Bench also observed that the possibility of mistaken identity also couldn’t 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.

“In that view of the matter, we find that the prosecution has failed to prove the case beyond reasonable doubt”, the Bench held while allowing the appeal and acquitting the appellant of all the charges.