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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).1874­1875 OF 2010

KOOLI SASEENDRAN & ORS. …APPELLANT(S)

Versus

STATE OF KERALA ETC.             …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. These appeals are directed against the judgment dated

23.05.2009 passed by the High Court of Kerala whereby it allowed the

appeal filed  by the  State, set  aside the  acquittal of the  appellants

recorded by the trial court and remanded the matter to the trial court

for fresh consideration.   

2. Briefly stated the  prosecution story is that on  12.10.1999  at

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about  8.30  a.m.  14  accused  persons  and  10­20  others formed  an

unlawful assembly.   These persons were armed with deadly weapons

like country­made bombs etc.  They hurled bombs at  Parayil  Sasi.

One of the bombs exploded and said Parayil  Sasi received grievous

injuries and succumbed to the same.  Report in this regard was lodged

by Kollam Kunnummal Achuthan (PW­1) in which he stated that at

about 8.30 a.m. on 12.10.1999 he was sipping tea at the tea shop run

by Rajeevan (not examined) at Ayithara.   He heard the sound of a

loud explosion of bomb from the side of L.P. School ground.   He got

down from the tea shop and stood on the ground.   At that time, he

saw  the  14  accused (named)  and about  10­20  other  accused (un­

named) running and rushing towards Parayil Sasi and 3 of his

associates who were walking through the paddy  field on the raised

boundary of the same.   Kooli Saseendran (Accused 1) said ‘kill him’

and hurled bomb at Parayil Sasi.  This bomb hit the face and body of

Parayil  Sasi,  who fell  down on the  bund  of the  canal.  The  other

persons with Parayil Sasi turned back and ran away.   According to

this  witness, in addition to bombs, the accused  were armed  with

choppers,  spades  etc.   Immediately  after the  occurrence they  went

away.   The reason for the attack was that Parayil Sasi was an RSS

activist whereas those who hurled bombs at Parayil Sasi and killed

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him were all CPM workers.  The motive of the crime was stated to be

political animosity.   First information report (FIR) in this behalf was

registered at 10.00 a.m.   Thereafter investigation was carried out by

the police and the accused were charged with having committed

offences  punishable  under  Sections  143,  147,  148,  302 read  with

Section 149 of the Indian Penal Code 1860 and Sections 3 and 5 of the

Explosive  Substances  Act, 1908.   The case  was committed to the

Court of Sessions.  The accused pleaded not guilty and claimed trial.

The trial court acquitted the accused.   The High Court set aside the

order of acquittal and remitted the case to the trial court giving

permission to both the prosecution and the defence to lead fresh

evidence.   

3. We have heard learned counsel for the parties.  

4. As far as the death of Parayil Sasi is concerned, the same is not

denied.  The only issue is who killed him and who was responsible for

his death.   The prosecution case is totally based on the testimony of

PW­1 and  PW­3.   They are stated to be the eye­witnesses to the

occurrence.   PW­1 while appearing in court virtually repeated what

has been said in the FIR.   He has made some improvements.

According to him, one bomb was thrown by Kooli Saseendran

(Accused 1) while shouting ‘kill the son of a dog’.   This bomb hit the

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deceased Parayil Sasi, who fell down.  Thereafter, 3 or 4 bombs were

thrown.  They also exploded.  People who were accompanying Parayil

Sasi ran away.  He then identified 14 accused persons.  He said that

after the incident, the accused ran away and  he saw the injured

Parayil Sasi lying dead at the place.  By then the police came and he

told the police about the incident.  Subsequently, he went to the police

station and gave a statement (Exhibit P­1).   He was questioned and

then the police came to the spot, inspected the dead body and

prepared the inquest report.  He again repeated that the accused are

CPM workers and killed the deceased because he belonged to the RSS.

In cross­examination, he states that he reached the spot where Parayil

Sasi was lying within 1 or 2 minutes after he fell down and the police

also arrived in 3 or 4 minutes.  There was a picket post near the place

of incident in which there was an ASI and police men on duty.   He

states that the police came to the place of incident at about 8.30 a.m.

According to him, the police officials remained at the spot for about

one hour and then took him in a police jeep to the police station.  After

the FIR was recorded, he was brought back to the spot and then Dy.

SP also came for investigation.  According to him, he had gone to the

tea shop of Rajeevan at about 8.00 a.m. to have tea.   He also states

that before he heard the sound of the explosion at 8.30 a.m., he did

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not hear any other sound of bomb explosions.   He admits that the

house of Mulloli Valsala is about 200 metres from the shop.  He also

admits that the house of Kunhikannan was destroyed by bomb

between 8.00 a.m. and 8.30 a.m. on the same day.  He has been

cross­examined at length and he admits that he is an accused in the

case relating to  destruction  of  house of  Kunhikannan  by fire and

bomb.  He  also  admits that  he is  also  an  accused in the  case  of

destroying the house of Valsala by bomb explosion and for setting fire

to the trees in her compound between 8.00 a.m. to 8.30 a.m. on the

same day.  He also admits that Suresh Babu (PW­3) and Smijith, who

are supposed to be the eye­witnesses are also co­accused in the case

of destroying the house of Kunhikannan by bomb explosion.  He also

admits that his elder son Sudhakaran as also his second son are the

accused in the murder case of son of Valsala.  He feigned ignorance as

to whether his son Manoharan was a co­accused in the case registered

for destroying the house of Nanu and Govindan on the same day at

about 8.15 a.m.   He further admits that one of his sons Vinodan is

accused of setting fire to the house of Nanu and Anandan.  In the FIR

statement  (Exhibit P­1),  he had only stated that he had seen some

persons accompanying the deceased but in Court he states that

Smijith and Suresh Babu were accompanying the deceased.   The

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suggestions put  to  these witnesses were that  in  fact he along with

other family members, Smijith  and Suresh Babu and deceased Parayil

Sasi had thrown bombs at various houses and damaged the property

of  others  and while running  away  Parayil  Sasi  had tripped  over  a

wooden log and one of the bombs in his hand had exploded killing

him.  Obviously, the suggestion was denied.   

5. PW­3 states that he along with deceased Parayil Sasi and Smijith

and 1 or 2 other persons had gone to the house of Janu for a meeting

in connection with Vijayadashmi.  The meeting was over by about 8.00

a.m. in the morning and then they heard a sound of the explosion

from the side of the L.P. School.  Then this witness along with Parayil

Sasi and Smijith walked towards the place from where the sound of

explosion came.  They reached the tea shop of Rajeevan.  Parayil Sasi

(deceased) was in front and the others were a little behind.  A number

of people had gathered there and Accused 1 shouted ‘kill the son of a

dog’ and a bomb was thrown at the deceased.   Thereafter, other

accused threw 2­3 bombs.  This witness and Smijith ran away to the

place where meeting was being held and told them about the incident.

After some time, they came back to the place of incident.  Parayil Sasi

was lying dead.   In the cross­examination, he states that Janu lives

alone in his house.  According to him, they came back at about 8.45

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a.m.   He states that he did not go to the police station and give any

statement.  He also  states that there is  a  police  picket  about  100

metres  away from  the  place  of incident  but  he  did  not report the

matter to the police picket post.   However, according to him,

immediately after the incident, the police came and questioned them.

This witness could not tell the exact time when the Circle Inspector

(PW­10) came to the spot, but, according to him, he did not give the

details  to the Circle Inspector.  His statement was recorded by the

police only in the afternoon.   Suggestions were put to him that the

police  had registered  a  case  against  him,  Achutan and Smijith for

destroying  the  houses  of  Kunhikannan,  Anandan and Valsala.  He

admits that a case has been registered against him and Smijith for

attempting to murder Sudheeran by throwing a bomb.  This witness is

an accused in two murder cases relating to Vijesh and Sreejith.

According to this witness, when he came from the house of Janu on

hearing the sound, the tea shop of Rajeevan was not open.  The crowd

had already gathered and there were 10 to 30 people.  He states that

he was not injured in the bomb explosion.  He then states that there

was a distance of 8 metres between him and Parayil Sasi.   Assainar

(PW­9) was the Sub­Inspector of the Police Station within whose

jurisdiction the incident occurred.   According to him, on 12.10.1999,

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PW­1 came and made a complaint on the basis of which he lodged the

FIR.   However,  in the same statement he said that he reached the

place of incident at about 9.15 a.m. on the basis of information

received and this information was given by the police men at the police

picket post near the place of occurrence.   This information was

received at 8.45 a.m. and he informed the Circle Inspector.  He states

that this information was recorded in the General Diary Register.  He

also states that when he went to the place at 9.15 a.m. he enquired

about what had happened but he did not record the statement.   He

admits that the police officials from the police post were present at the

place where the dead­body was lying.  Suggestion was put that the FIR

was lodged only after 5 p.m. which he denied.

6.  The trial court held, and in our opinion rightly, that there were

so many contradictions in the statement of PW­1 and PW­3 that no

reliance could be placed on the same.  Whereas, according to PW­1, he

had tea at Rajeevan’s shop, according to PW­3, Rajeevan’s shop was

already closed.   Another important aspect of the matter is that both

these eye witnesses are accused of indulging in arson and throwing

bombs at the houses of various residents of that area between 8.00

a.m. to 8.30 a.m.   If that be so, and there was a police post nearby,

the police should have been there at the spot itself.  Unfortunately, the

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prosecution has not been fair and has withheld all this material about

the witnesses being prosecuted as accused in the other cases.  We find

that Rajeevan, an  important witness had not  been examined.   He

would  have been the  most important  witness, had  his shop  been

actually  open.  Further,  none  of the  police  officials  present in the

police  post  have  been  examined.   They  would  have  been the  best

witnesses.  There is no explanation for their non­examination.

7. The matter does not end here.   Admittedly, PW­9 came to the

spot at 9.15 a.m. and enquired from others.   The daily diary report

has not been proved or produced.  Once the police official knew that a

murder had taken place, which is a cognizable offence, he could have

immediately  sent  a message to the  police  station  to  record an FIR

instead of waiting for PW­1 to come to the police station to record the

same.   We also find that the statement of A.N. Venugopalan, Dy.SP

(PW­11) does not inspire confidence.   He states that he reached the

scene of occurrence at 1.15 p.m.   The occurrence took place at 8.30

a.m.   The police station is close to the place of occurrence and the

Court is at a distance of 10 minutes from the police station, as stated

by PW­9.  If the FIR was lodged at 10.00 a.m., why was it sent to the

Magistrate at 6.15 p.m.?  There is no explanation.  Why did the Dy.SP

reached the place of occurrence after four hours?  There is no answer.

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8. In view of these various contradictions and deficiencies  in the

prosecution case  and  also the fact that  both  PW­1  and  PW­3  are

political rivals of the accused and are also alleged to have committed

various offences on that very day prior to the occurrence in question

and even earlier, no reliance can be placed on their testimony.   The

trial court was justified in acquitting the accused.  We are constrained

to observe that the High Court set aside the well­reasoned judgment of

the trial court in a casual manner.   The evidence has not been

discussed in detail and we are surprised to note that after discussing

the  entire  case  and observing that the  scope  of interference in  an

appeal against acquittal is very limited, the appellate court set aside

the judgment of the trial court.  It is obvious that the High Court also

did not find material evidence to convict the accused and, therefore,

set aside the judgment and remitted the matter to the trial court.  In a

criminal case, remand is not to be ordered as a matter of course.  It is

only if there is a mis­trial or some technical issues have arisen that

such an order may be made but  in very rare circumstances.   This

should not have been done especially in the facts of the case discussed

hereinabove.   

9. In view of the above discussion, we allow the appeals, set aside

the judgment of the High Court and restore the judgment of the trial

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court.  Bail bonds, if any, stand discharged. Pending applications(s) if

any, shall also stand disposed of.

……………………………..J. (DEEPAK GUPTA)

…………………………….J. (ANIRUDDHA BOSE)

New Delhi December 17, 2019