[Sunil Babu Gang Rivalry Murder] Kerala High Court Upholds Life Sentence Of Four Accused For Murder, Acquits Other Accused

The Court also set aside the conviction of rigorous life imprisonment imposed upon accuseds 5 to 8 (Binu alias Kari Binu, Saju alias Kallan Saju, Saji alias Pori Saji, Suresh alias Kopra Suresh) for criminal conspiracy to murder due to lack of evidence.

The accused persons allegedly murdered the deceased Sunil Babu on December 13, 2015, due to gang rivalry.

The Division Bench comprising Justice P B Suresh Kumar and Justice Johnson John set while upholding the conviction against accuseds 1 to 4 and setting aside the conviction against accused 5 to 8 stated thus:

“Therefore, while confirming the conviction and sentence imposed against accused Nos. 1 to 4 for the offences punishable under Sections 341 and 302 r/w Section 34 IPC, the conviction and sentence passed against them for the offences under Sections 120B and 326 IPC are set aside. The conviction and sentence passed against accused Nos. 5 to 8 under Section 120B IPC is also set aside and they are acquitted under Section 235(1) Cr.P.C. They shall be set at liberty forthwith, if not required in any other cases.”

Eight appellants approached the Kerala High Court against their conviction imposed by the Additional District and Sessions Judge-VI, Thiruvananthapuram. The Court imposed rigorous life imprisonment on accuseds 1 to 4 for murder. It also imposed rigorous life imprisonment on accuseds 1 to 8 for criminal conspiracy to commit murder.

Accused Nos. 1 to 4 were convicted under Sections 120B (criminal conspiracy), 302 (punishment for murder), 341(punishment for wrongful restraint), 326 (voluntarily causing grievous hurt) read with Section 34 (common intention) IPC and accused nos. 5 to 8 were convicted under Section 120B of the IPC. The Trial Court had set aside the conviction against accused no. 9.

The prosecution allegation was that accused nos. 1 to 4 attacked Sunil Babu and inflicted cut injuries on his head using sword and chopper. Accused nos. 5 to 8 were also allegedly on the spot while the other accused were attacking the deceased. The allegation against accused nos. 1 to 8 also included criminal conspiracy to commit the murder.

The appellants contended that there was no evidence to prove the alleged offences and that evidence of members of rival gangs was not acceptable. It was argued that elements of criminal conspiracy were absent and there was also delay in filing the FIR.

The Court relying upon Apex Court decisions accepted the testimonies of interested witnesses who were close associates of the deceased. It stated that Courts must exercise caution while accepting testimony of interested witnesses but that by itself would discredit their evidence. It said, “It is well settled that the credibility of a related witness is unaffected by their affiliation with either party; but, the court should proceed with care while deciding the admissibility of the evidence of such a witness.”

The Court also relied upon medical evidence to state that the injuries inflicted upon the deceased were sufficient in the ordinary course of nature to cause death. The Court also rejected the argument that there was a delay in the registration of FIR for tutoring the witnesses or an inordinate delay in producing seized articles before the Court.

Further, the Court stated that the evidence of witnesses along with medical evidence would prove that the accused persons caused the death of the deceased beyond reasonable doubt.

However, the Court stated that there was no evidence that accused 5 to 8 who were travelling separately had given any kind of signal to accused 1 to 4 for murdering the deceased. The Court stated that the prosecution was also unable to prove criminal conspiracy against accuseds 5 to 8 using call record data.

It said, “It cannot be disputed that inference can be drawn only from established facts and when the circumstantial evidence is incomplete or vague, it becomes necessary for the prosecution to provide adequate proof regarding the meeting of minds, which is essential in order to hatch a criminal conspiracy. But, in this case, we find that the prosecution has not adduced any reliable evidence in this regard.”

Thus, the Court set aside the conviction against accused 5 to 8 for criminal conspiracy since there was no other evidence against them. “Since the prosecution has failed to prove the alleged conspiracy, the conviction and sentence against accused Nos. 1 to 4 under Section 120B IPC is also liable to be set aside”, stated the Court.

It also set aside the conviction against accused 1 to 4 under Section 326 IPC to avoid double penalty since they were getting convicted under Section 302 IPC.

Accordingly, the Court upheld the conviction of life imprisonment on accused 1 to 4 for murder and set aside the conviction of life imprisonment imposed upon accused 5 to 8 for criminal conspiracy to commit murder.

Counsel for Appellants: Advocates T.M. Abdul Latheef, Suman Chakravarthy, Shajin S. Hameed, Smitha Babu, M.P. Madhavankutty

Counsel for Respondents: Public Prosecutor E C Bineesh

Citation: 2024 LiveLaw (Ker) 206

Case title: Binu @ Kari Binu V State of Kerala & Connected Cases

Case number: CRL.A NO. 677 OF 2018 & Connected Cases

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