Decided on April 09,2002


Cited Judgements :-



- (1.)Criminal Appeal Nos. 656-57 of 2001 are by four appellants, namely, Farooq alias Karattaa Farooq (accused No. 1), Sathar (accused No. 2), Ayoob alias Blood Ayoob (accused No. 7) and Hashim (accused No. 8) against their convictions and sentences whereas Criminal Appeal Nos. 1049-50 of 2001 are by the State against the order of acquittal passed by the High Court whereby Manaf (accused No. 3) and Sulaiman (accused No. 9) have been acquitted by the High Court. Appellants of Criminal Appeal Nos. 656-57 of 2001 and respondents in Criminal Appeal Nos. 1049-50 of 2001 were charge-sheeted accused persons along with accused Anildas, Sajeer and Rafeek whose trial was separated as they were absconders. Nine accused persons were tried and the trial Court acquitted three accused persons, namely, Suja (accused No. 4), Shanavas (accused No. 5) and Lalkhan (accused No. 6) whereas convicted the remaining six accused persons under Section 302 of the Indian Penal Code (hereinafter referred to as the 'Penal Code') read with section 34 of the Penal Code. Accused Nos. 1 and 2 were awarded death penalty and the records were submitted to the High Court for confirmation of sentence of death whereas other four accused persons were awarded imprisonment for life. All the aforesaid accused persons excluding accused No. 3-Manaf were further convicted under Section 302/102-B of the Penal Code and sentenced to imprisonment for life. Accused No.3-Manaf was, however, convicted under Section 302/109 of the Penal Code and sentenced to undergo imprisonment for life. All the accused persons were also convicted under Section 307 read with Section 34 of the Penal Code and sentenced to undergo imprisonment for life. They were then convicted under Section 324 read with Section 34 of the Penal Code but no separate sentence was awarded against any of them. Each of the accused was also convicted under Sections 3 and 5 of the Explosive Substances Act and sentenced to undergo imprisonment for life and rigorous imprisonment for a period of 10 years respectively. The sentences were, however, ordered to run concurrently. On appeal being preferred, convictions and sentences awarded against accused Nos. 1, 2, 7 and 8 have been confirmed by the High Court whereas accused Nos. 3 and 9 have been acquitted.
(2.)Prosecution case, in short, is that the deceased Kabir was an under- trial prisoner at the Sub-Jail, Thiruvananthapuram which is situated at Attakulangara, Thiruvananthapuram. On 16th July, 1998 at 1.50 p.m. deceased Kabir and PW-9 Vinil Kumar, another under-trial prisoner, were taken to the Court of Judicial Magistrate First Class, Attingal accompanied by two police constables, PWs-15 and 16. They were acquitted by the Magistrate's Court in that particular case but since many other cases were pending against them they were taken back to the Sub-Jail. Both the deceased Kabir and PW-9 were handcuffed together using a single handcuff. On their way back to the Sub-Jail with police escort, when they reached near the Western gate of the Sub-Jail which is situated at the eastern side of the Attakulangara-Manacaud Public road, accused Anildas alis Ani alis Jeerakam Ani (absconding accused) took an explosive substance from the plastic bag kept by him and handed over to Sathar (accused No. 2) who hurled the explosive substance on the back of the head of the deceased Kabir causing a severe and strong explosion thereby the back portion of the head of the deceased was blown out into shreds and smithereens and in a trice, Kabir died instantaneously. PW-9 who was the co-prisoner and handcuffed along with the deceased, PW-15 and PW-16 - policemen who were on escort duty and Sudheer Kumar (PW-12) who was a pedestrian sustained very serious injuries and deformities in the explosion. During that time, Manaf (accused No. 3) kept motor cycle belonging to Lalkhan (accused No. 6) ready for riding at the place in front of Buhari Hotel being conducted by R. Naushad (PW-10) which is situated some distance away towards north-west of the place of occurrence. Sathar (accused No. 2) after hurling the explosive substance on deceased Kabir and the consequent explosion, ran across the road towards the said motor cycle, with chopper in his hand and alighted on the pillion of the said motor cycle. Farooq (accused No. 1) was waiting and standing with Ayoob (accused No. 7), Hashim (accused No. 8) and Rafeek (absconding accused) with car bearing registration No. KRV-3106 belonging to the said Rafeek near Madanthampuran Temple situated adjacent to the shop of P.W. 2 which is situated towards north-west of the scene of occurrence, with mobile phone for giving timely instructions and guidance for the successful completion of the operation of the assassination. Just after the explosion, Farooq (accused No. 1), Ayoob (accused no. 7) and Hashim (accused No. 8) and accused Rafeek readily kept all the four doors of the car opened for enabling the smooth entry of Anildas (absconding accused) into the car. The said accused Anildas ran towards the said car and got into it. Farooq (accused No. 1), Ayoob (accused no. 7), Hashim (accused No. 8) and accused Rafeek also got in the car and closed the doors. At the very same time, Suja (accused No. 4) and Shanavas (accused No. 5) were also waiting with another motor cycle belonging to Suja (accused No. 4) towards north to the scene of occurrence for giving guidance and timely instructions to Sathar (accused No. 2) and accused Anildas for carrying out the operation. Manaf (accused No. 3) with Sathar (accused No. 2) sitting at the rear seat of Motor Cycle, raised it and rode it in an alarming speed towards the car which was facing towards Sreevaraham location near the temple. Suja (accused No. 4) and Shanavas (accused No. 5) also in great speed, sped the Motor Cycle towards the car. All the aforesaid accused persons sped away from the scene in the said car and the motor cycle together after exchanging signs and had signals amongst them regarding the successful completion of the assassination. Sajeer (absconding accused) used another mobile phone with him for giving timely information to Farooq (accused No. 1) regarding the movement of the deceased etc. and that Lalkhan (accused No. 6) knowingly entrusted his motor cycle for carrying out the operation. It was alleged by the prosecution that Sulaiman (accused No. 9) had previous enmity towards the deceased Kabir and he wanted to do away with Kabir at any cost and hence he hired the services of Farooq (accused No. 1) and his associates. According to the prosecution the incident which resulted in the death of Kabir was as a result of criminal conspiracy hatched up by all the aforesaid accused persons. Stating the aforesaid facts, a first information report was lodged, and the police after registering the case, investigated the same and on completion thereof, submitted charge-sheet. Thereupon, the learned Magistrate took cognizance and committed the accused persons to the Court of Session to face trial.
(3.)Defence of the accused persons was that they were innocent, had no complicity with the crime and were falsely implicated in the case. During trial, the prosecution examined 79 witnesses in all and 117 documents were exhibited on its behalf. The defence, however, did not examine any witness in the case on hand. Upon the conclusion of trial, the trial Court convicted the accused persons as stated above and upon appeal being preferred, convictions and sentences of some of the accused have been confirmed whereas two of them have been acquitted as stated above. Hence, these appeals by special leave both on behalf of the accused against the order of their convictions as well as on behalf of the State against the order of acquittal recorded by the High Court.

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