Flawed Investigation, Lack Of Evidence: Kerala High Court Acquits 7 RSS Workers Booked For Murder Of CPI(M) Activist

A division bench comprising of Justice P.B. Suresh Kumar and Justice C.S. Sudha stated that they were constrained to acquit the accused not because they are were not the real culprits, but because of flawed investigation and lack of evidence. It held thus:

“…we are constrained to acquit the accused not because we find that they are not the real culprits in the case, but because of the flawed investigation and lack of evidence. We do not find fault with the investigating officer in proceeding with the investigation in the case on the premise that on the facts of this case, the activists of the rganization, RSS must have committed the crime. Our anguish on the other hand, is with regard to the manner in which he jumped into the conclusion without collecting sufficient materials that it is the accused who committed the crime.”

The case pertains to the brutal and heinous murder of Shihab, an activist of the CPI(M), on March 01, 2015. He was allegedly involved in the murder of Vinod who was an officer bearer of RSS. The allegation was that to avenge this death, the accused conspired to murder Shihab. Eleven persons were allegedly involved in the conspiracy and murder of Shihab. Seven persons were convicted by the Sessions Court to life imprisonment and others were acquitted. Thus, the seven persons convicted by the Additional Sessions Judge - IV, Thrissur had approached the High Court with an appeal.

Senior Counsel B Raman Pillai, Senior Counsel P Vijaya Bhanu and Advocate S Rajeev appeared on behalf of the appellants and Public Prosecutor E C Bineesh appeared for the respondent.

The counsel for the appellants submitted that the police without conducting any investigation, based on pressure from the leaders in CPI(M) arrested the appellants as they were members of RSS and made them accused in the murder. It was submitted that the arrest of the appellants were made even before collecting evidences in the form of statement of witnesses or other material evidences.

The counsel for the respondent submitted that various facts discovered based on the information furnished by the accused and other corroborative evidence would prove the guilt of the accused beyond reasonable doubt.

The Court found that the prosecution examined 65 witnesses and proved 158 documents for the trial and relied mainly upon the statement of the person who was riding pillion on the motorcycle ridden by Shihab at the time of occurrence (PW1). He identified all the appellants in the Court and deposed that they hacked Shihab to death, while he was threatened to run away from the scene of the crime.

The Court found that even though PW1 had previous acquaintance with the appellants, he did not mention their names in the first information statement given to the police. The Court held that there was no satisfactory explanation given by PW1 as to why he did not disclose the names in the first information report. The significant omissions made by PW1 in the first information report makes the prosecution case improbable, the Court stated.

The Court also noted that the particulars of the assailants were not disclosed by PW1 even when the inquest report was prepared. The Court stated that this could only mean he was not aware of the particulars of the assailants even when the inquest report was being prepared on the next day of the murder.

“The omission on the part of PW1 in not disclosing the particulars of the assailants who were known to him in Ext.P1 being a matter which would make the prosecution case improbable, is relevant under Section 11 of the Indian Evidence Act in judging the veracity of the evidence of PW1,” it said.

The Court also noted that PW1 was not a credible witness as he gave contradictory statements when he was called as a witness in the Court. The Court also found that PW1 was a close associate and sympathizer of the political party to which Shihab belonged and the possibility of such a person falsely implicating the accused as the assailants cannot be ruled out. The Court noted thus:

“Yet another reason to doubt the veracity of the evidence tendered by PW1 is the fact that PW1 is a sympathiser of the political party, CPM and a close associate of CPM activists. He admitted the said fact in cross-examination. The possibility of such a person falsely implicating the accused as the assailants of Shihab, cannot also be ruled out.”

The Court found that the police was not able to identify the persons involved in the murder of Shihab even after two days of the incident. The Court stated that the weapons discovered and seized by the police were not proved as the weapons used for the commission of the murder. The Court found that the blood from the weapons could not be identified as human blood based on the forensic report.

The Court also found that the prosecution could not connect the motorcycle and car allegedly used by the appellants to the occurrence at the scene of the crime. For conducting further examination, the Court called the Police diary. The Court stated that police diaries of a case cannot be used as evidence in the case, but it can be used for aiding the court to decide on a point. The Court found that the police diary also did not disclose any details to indicate that car in the custody of police was the same car that was allegedly used by the appellants.

The Court found that the police diary also shows serious lapses in the investigation. It found that the witnesses were not even questioned before arresting the appellants. The division bench held that the benefits arising from faulty investigation ought to go to the accused and not to the prosecution.

The Court observed that the Sessions Court failed to appreciate the facts correctly, and that it did not take note of the various flaws in the evidence tendered by PW1. The Court also found that remaining evidences, even if admissible and reliable, was not sufficient for the prosecution to prove the guilt of the accused beyond reasonable doubt.

The Court based an analysis of all the evidences stated that the appellants are entitled for benefit of doubt as the prosecution was unable to prove their guilt beyond reasonable doubt. It held thus:

In parting, the Court remarked that acquittals in serious cases like this may affect credibility of the justice delivery system. The Court held that there was no doubt that the murder of the Shihab was committed by a group of persons as alleged by the prosecution. However, the Court stated that it has serious doubts as to whether the murder was committed by the appellants itself or some others. It held that in cases where the identity of the accused cannot be found based on the existing evidences, the police has to conduct deeper probe to identify the real accused behind the crime. It held thus:

“We understand that it is not an easy task for an investigating officer to collect sufficient materials in a case where there are no eyewitness or in a case where the materials collected cast a cloud as to the identity of the accused. But, that is not to say that such a case could be concluded in the manner in which the investigating officer in this case has done. In such cases, there has to be deeper investigation till the identity of the real culprit is found.”

The Court acquitted the appellants by setting aside the judgment of the Sessions Court.

Case title: Naveen v State of Kerala

Citation: 2023 LiveLaw (Ker) 428

Case number: Crl. A. No.:497 Of 2019

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