Kerala HC Acquits 4 BJP Activists Convicted For CPI(M) Worker's Murder In Jail, Criticises Housing Of Prisoners Based On Political Allegiance

Court said prison is no place for factionalism and questioned the prison authorities over housing prisoners in different blocks based on their political allegiance.

“We fail to understand how the authorities of the Central Prison, Kannur could house prisoners in different blocks based on their political allegiance. That, in fact, leads to incidents like the instant one. Like prison officers, prisoners also shall not indulge into any political activity inside the four walls of prisons.”

The Court referred to the Kerala Prisons and Correctional Services (Management) Act, 2010 which was enacted with an objective of providing for the safe custody, correction, reformation, welfare and rehabilitation of prisoners. It then discussed the relevance of Section 13 of the Act and stated that prison authorities have to treat every prisoner impartially, maintain discipline in the prison. The Court thus directed the Director General of Prisons and Correctional Services, Kerala to ensure that the prisons in the State were administered in accordance to the above objectives.

The incident dates back to 2004 and the appellants (nine in number) were convicted under Section 302 (punishment for murder), Section 324 (voluntarily causing hurt by dangerous weapon or means), Section 143 and 149 of IPC (punishment for formation of unlawful assembly) after trial of thirty persons. Two accused (1 and 7) expired during pendency of the appeal.

In appeal, the Court found that that the attack was an end result of the political faction between the inmates. It said witness statements were contradictory and prosecution failed to explain the injuries sustained by the accused persons.

The Court also examined whether the accused persons can be convicted under the guise of unlawful assembly for a faction fight between the inmates. It relied upon the Apex Court decisions in Kanbi Nanji Virji and others v State of Gujarat (1970) and Puran v State of Rajasthan (1979), to state that in a sudden mutual fight between two groups, punishment cannot be imposed upon all persons involved in the free fight by invoking the provision of unlawful assembly u/s 149 IPC.

“…once the court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight, then those persons who are proved to have caused injuries alone can be held guilty for the injuries caused by them,” it said, adding that only accused 1 and 7 (since deceased) would be liable under Section 149 IPC. Court also said the duo inflicted injuries on the head the deceased and would thus be liable under Section 302 IPC. But their appeals stood abated.

Court said accused no. 5 had beaten the deceased from a bat at his leg, which was not the cause of death, hence he would only be liable under Section 324 of the IPC. Accused Nos. 2, 7 and 9 were also found liable under the said provision.

However, Court proceeded to acquit Accused Nos.3, 4, 6 and 8 of all offences and ordered their forthwith release.

Before parting, the Court also made significant observations regarding the nature of investigation and the manner in which officials of the Central Prison, Kannur discharged their duties. It stated that even a suspect or accused person have a right to just and fair investigation and trial under Article 21 and 22 of the Constitution of India. It noted if an investigation was tainted, malafide, inappropriate, the Court has the right to set aside the investigation and direct fresh or de novo investigation.

Accused Nos. 2 and 9 were represented by Senior Counsel P.Vijayabhanu, accused nos. 5 and 8 were represented by Advocate S.Rajeev, accused nos. 3 and 4 were represented by Advocate Arjun Sreedhar.

Senior Public Prosecutor Alex M Thombra appeared for the respondent.

Citation: 2023 LiveLaw (Ker) 545

Case title: A.C. Pavithran v State of Kerala and Connected cases

Case number: Criminal Appeal Nos.935, 1061, 1131 of 2019

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