Sessions Case No. 917/2012 clubbed with Sessions Case No. 916/2012 (RC.5(S)/08/CBI/SCB /Chennai) Vide judgment and order dated 25.07.2018, the Addl.Sessions Judge/Special Judge of the Central Bureau of Investigation (CBI) Sri. J. Nazar convicted six officials of the Kerala Police viz. Police Constable Jithakumar (Accused No.1), Police Constable Sreekumar S.V. (Accused No.2), Police Constable Soman (Accused No.3), Circle Inspector of Police T. Ajith Kumar (Accused No.4), Assistant Commissioner of Police E.K.Sabu (Accused No.5) and Assistant Commissioner of Police T.K. Haridas (Accused No.6) for tortured-to-death an innocent person identified as Udayakumar and torture of his friend Suresh Kumar on 27.09.2005 at the office of Circle Inspector, Thiruvananthapuram, Kerala.
Charges:
In the first part of the charge, the CBI Special Court indicted accused 1 to 3 for the offences punishable u/Ss. 323, 341, 348 and 302 read with Section 34 IPC and in second part of the charge the court indicted accused Nos. 1 to 6 for the offences punishable u/Ss. 120B read with Section 201, 167, 466 and 474 IPC. All the accused pleaded not guilty. At the fag end of the trial, Soman (accused No.3) died and hence charge against him was abated.
The trial of the cases was conducted for 62 days from 22.06.2017 to 23.07.2018 and the final judgment was delivered on 25.07.2018.
Prosecution case:
The prosecution case is briefly as follows:
Police Constable Jithakumar (Accused No.1), Police Constable Sreekumar S.V. (Accused No.2), Police Constable Soman (Accused No.3), Circle Inspector of Police T. Ajith Kumar (Accused No.4), Assistant Commissioner of Police E.K.Sabu (Accused No.5) and Assistant Commissioner of Police T.K. Haridas (Accused No.6) for tortured-to-death an innocent person identified as Udayakumar and torture of his friend Suresh Kumar on 27.09.2005 at the office of Circle Inspector, Thiruvananthapuram, Kerala.
On 27/09/2005, deceased Udayakumar met Suresh kumar (PW1) around 10.30 AM at Killipalam on his way to Palayam market in Kerala State capital Thiruvananthapuram for purchasing some cloths. They however could not reach the market as the road was blocked due to victory procession of candidates of Thiruvananthapuram Municipal election and hence they stayed at Sreekanteswaram Park. While the deceased and his friend were at the park, Police Constable Jithakumar (Accused No.1) and Police constable Sreekumar ((Accused No.2) came there on a motor cycle bearing No. KL-01/X-9688 and they questioned Suresh Kumar (PW1) and deceased Udayakumar about their presence there and on searching the body of Udayakumar they found some currency notes. The deceased explained that the money was saved by him and his mother for purchasing dress materials. Being not satisfied with the answer given by Udayakumar, Accused Nos.1 and 2 took the deceased and Suresh kumar to the Fort Police Station. Later, the accused Nos. 1 and 2 took Udayakumar to the Office of Circle Inspector (Accused No.4) and they counted the money found in possession of the deceased and then started to torture him after making him to lie on his back on a wooden bench. Then accused No.1 Jitha kumar started to beat on the soles of the feet of Udayakumar repeatedly with a cane stick questioning him about the money found in his possession. Thereafter Police Constable Soman (Accused No. 3) also joined the accused Nos. 1 and 2.
It was stated that the Accused No.3 held the head of Udayakumar forcibly while Accused Nos. 1 and 2 knead a galvanized iron pipe forcefully on the thighs of the deceased repeatedly crushing his muscles causing excruciating pain to him. Despite his repeated pleas for mercy, the deceased was tortured in this manner for about 1 hour and thereafter he was taken to the Fort Police Station and made to sit in the cell of the Station. The three accused police constables took Suresh Kumar (PW1) to CI Office, stripped him and beat him up. He was however saved from further torture as another policeman intervened and thereafter he was taken to the Fort Police Station and made to stand outside the cell.
At around 10 PM on 27/09/2005, Police constable Thankamani (PW5) enquired the detainees in the Station whether they want food and all the persons declined the same but there was no response from the deceased Udayakumar. Hence PW5 entered into the cell and found Udayakumar in a static position. Immediately he contacted CI of Fort Police Station namely E.K.Sabu (Accused No.5) and as per his instruction Udayakumar was taken to General Hospital and as his condition was critical and he was in a sinking stage, the doctor advised the police party to take him to Medical College. The deceased was accordingly taken to Medical College, where the doctor confirmed his death at 11.40 PM due to the crush injuries sustained on his thighs made by accused Nos. 1 to 3.
Conspiracy hatched to screen murderers: Two ACPs (Accused No.6 &5) and CI (Accused No.4) intimidated subordinate officials/falsified documents to save Accused No. 1 to 3 during trial before Fast Track Court:
This case was first investigated by Assistant Commissioner of Police, Narcotic Cell (PW43) and then investigation was taken over by CBCID. The CBCID submitted final charge sheet against accused Nos. 1 to 3 for the offences punishable u/Ss. 323, 331, 302 IPC read with Sections 34 IPC and during the course of trial at Additional Sessions Court (Fast Track – III), Thiruvananthapuram the court arraigned Raveendran Nair, PW15 as additional accused No.4 by invoking Section 319 CrPC. In the said trial all material witnesses turned hostile to the prosecution and hence the mother of deceased Udayakumar, PW2 approached Hon’ble High Court for CBI investigation and it was allowed. After the death of Udayakumar in police custody on the night of 27/09/2005 then ACP T.K. Haridas (Accused No. 6), E.K. Sabu (Accused No.5) and Ajith kumar (Accused No.4) abused their official positions and intimidated their subordinate officers in fabricating and falsifying records in Crime Nos. 703 and 704 of Fort Police Station for the purpose of screening the accused Nos. 1 to 3 from legal punishment and further they intimidated their subordinate namely Head Constable Thankamani (PW5 – approver), Head Constable George (approver), Raveendran Nair (PW15 -approver), Police Constable Ramachandran (approver), Sheeja kumari (PW17 – approver), Sajitha (PW16-approver), Heera Lal (PW18 – approver) to depose falsely before trial court as per the fabricated and falsified documents and hence the accused Nos. 1 to 3 are alleged to have committed the aforesaid offences.
CBI found out the conspiracy hatched by accused police officials to screen the torture from punishment
Pursuant to a petition by the mother of the deceased, the Kerala High Court vide order dated 14/03/2012 directed that the investigation of the case be handed over to the CBI and directed the agency to investigate the case. Thus, the two cases which were previously numbered as SC 25/2012 and SC 26/2012 were numbered in the CBI Special Court as SC 916/2012 and SC 917/2012 respectively.
As per final report submitted before the Special Judge, the CBI has charged the accused alleging offences punishable u/Ss.120B read with Sections 466, 474, 193, 167 and 201 IPC. The prosecution case in brief is as follows:-
The conspiracy in this case started after the custodial death of Udayakumar on the night of 27/09/2005. On getting information about the death of Udayakumar, Sub-Inspector Ajith kumar (accused No. 4) and Circle Inspector E.K. Sabu (accused No.5 ) of Fort Police Station came to the Station and collected the note books of Police Constable Ramachandran (approver), Sheeja kumara (PW17 – approver) and Sajitha (PW16 – approver) who were on Sentry duty on that day. Then accused Nos. 4 and 5 instructed Thankamani, PW5 (approver) that all telephone calls should be routed to CI Office in order to avoid leaking of the custodial death. By the time, Assistant Commissioner of Police Haridas (Accused No.6) came to the Station and they went to the CI Office and conspired together to fabricate false documents in order to cover up accused Nos. 1 to 3 namely Jithakumar, Sreekumar and Soman from legal punishments and for that they called Mohanan, Head Constable of Karamana Police Station and Heeralal, Police Constable (PW18 -approver) of Fort Police Station at 2 AM on the intervening night of 27/09/2005 and 28/09/2005 and then the said Mohanan dictated mahazar to accused Nos. 1 and 2 for the arrest of PW1 and Udayakumar by making a story that they were arrested from the Sreekanteswaram Park at 4 PM in suspicious circumstances and for that they obtained two mahazar witnesses namely Ameer Ali (PW20) and Shibu (DW1) on the next day. In furtherance of the conspiracy, accused Nos. 4 to 6 called Crime SI Raveendran Nair (PW15 – approver) for preparing FIR in tune with the said mahazar and accordingly PW15, Raveenderan Nair came to the Station but he was reluctant to register a crime against Udayakumar and PW1 as he had not seen the said persons on the previous day. Then Assistant Commissioner of Police Haridas (Accused No. 6) and accused Nos. 4 and 5 threatened PW15, Raveendran Nair with dire consequences and as he left the Station, Accused No. 4 and 5 followed and insisted him to fabricate a case against Udayakumar and PW1 and finally not being able to withstand the threat and coercion of accused Nos. 4 to 6 he decided to register a false case against PW1 and deceased Udayakumar. Accordingly Haridas (Accused no. 6) got prepared draft from Mohanan, Head Constable and it was handed over to Raveendran Nair, PW15 who in turn gave the same to Heera lal (PW18). In tune with the draft, Heeralal prepared Crime No. 703/2005 as it was registered on 27/09/2005 at 8 PM and it was signed by Raveendran Nair, PW15. Then PW15 took the GD from Thankamani (PW5) and made entries therein to effect that Crime No. 703/2005 was registered for the arrest of Udayakumar and Suresh kumar on 27/09/2005 at 8 PM and subsequently Crime No. 704/2005 was registered by SI Ajith kumar (Accused No. 4) for the death of Udayakumar. At 12 mid night on 27/09/2005 the sentry book, Register of Property found in search of Prisoners (PSR), arrest memo, arrest register and arrest card were manipulated to show that deceased Udayakumar and Suresh kumar were brought to Station at 8 PM only and which were prepared as per the instigation of accused Nos. 4 and 5. In the morning of 28/09/2005 around 6.30 AM to 7 AM Sreekumar (Accused No.2) called Rajesh (PW23) to Fort Police Station and then Ajith kumar along with accused No. 2 induced him to put the signature on the arrest memo of Udayakumar and PSR register to effect that he witnessed the arrest of said persons at 8 PM on 27/09/2005. On 28/09/2005 E.K. Sabu, (Accused No.5) called Ameer Ali (PW20) and V.R. Shibu (DW1) to the Fort Police Station and they were asked to sign in the mahazar prepared for picking up two persons from Sreekanteswaram Park and the said persons obliged to the request of E.K.Sabu and put signature on it. After the registration of Crime No. 703/2005 by PW15 the remaining entries up to mid night on 27/09/2005 was endorsed in GD by PW5 as per the instruction of SI Ajith kumar (Accused No. 4), and CI E.K. Sabu (Accused No. 5). They also threatened Police Constable Ramachandran (approver), Women Police Constable Sheeja kumari (PW17 – approver) and Sajitha (PW16 – approver) to make entries in their note book to effect that Udayakumar and Suresh kumar were brought to the Station only at 8 PM on 27/09/2005 and also to make suitable entries in sentry relief book also. As per the inducement and threat, the aforesaid accused persons made false entries in the note book and sentry relief book and thereby the accused persons alleged to have committed the aforesaid offences.
Post-mortem findings: Injury Nos. 14 and 15 are sufficient in the ordinary course of nature to cause death
Then the post mortem on the dead body of deceased was conducted by Dr. Sreekumari (PW19). In the postmortem certificate, she stated about 22 ante-mortem injuries on the dead body of the deceased and “she opined that death was due to crush injuries sustained to the thighs of deceased which are injury Nos. 14 and 15”.
About the injury no.14 and 15, the post-mortem report stated:
“14. Contusion 48 x 30 cm on the front, inner and outer aspects of right thigh extending downwards from the groin. Muscles underneath seen infiltrated with blood, partly fluid and partly clotted. Muscles fibres were seen crushed, fragmented friable and softened up to the depth of 10 cm (bone deep)
15. Contusion 35 x 20 cm on the front, inner and outer aspects of left thigh extending downwards from the groin. Muscles underneath seen infiltrated with blood, partly fluid and partly clotted. Muscles fibres were seen crushed, fragmented friable and softened up to a depth of 8.5 cm (bone deep).”
In her testimony the doctor further stated, “… injury Nos. 1 to 4 in Ext.P51 could be caused by those parts coming into forcible contact with blunt object of appropriate strength and dimension. Injury Nos. 6 to 10 are caused by fisting and stamping. Injury No. 11 is caused by beating with a cane. Injury Nos. 12 and 13 are caused by rolling hard object on the thighs. Injury Nos. 14 and 15 could be caused by application of blunt force which is sustained comprehensive with crushing effect. Witness also would testify that it is possible to cause injury Nos.14 and 15 by using MO10. Regarding the injury Nos. 16 to 22 in Ext.P51, she would testify that which are possible by beating with a cane. Injury Nos. 14 and 15 are sufficient in the ordinary course of nature to cause death.”
Conspiracy for fabrication and falsification of documents for screening the offenders On this aspect, the Ld CBI Special Judge noted:
“119. The second part of the charge, alleged conspiracy for fabrication and falsification of documents for screening the offenders commenced just after the death of Udayakumar. The evidence would speak of the fact that Udayakumar died at 11.45 PM at MC and that fact was informed to 5th accused, CI of Fort Police Station and thereafter accused Nos. 4 and 5 came to Fort Police Station and then 6th accused Haridas also joined with them.
Thereafter PW5 Thankamani was called by them to enquire about the present position of GD and as directed by the 5th accused, GD was stopped by PW5 at 7.30 PM. As no case was registered for the detention of Udayakumar and PW1 they rose to the occasion and hence accused Nos. 4 to 6 procured the presence of PW18 Heeralal and Mohanan Chettiyar, HC of Karamana Police Station to help them in fabricating documents. Then they called PW15 Raveendran Nair, Crime SI and he reached Station at 3 AM. At first he met CI of Fort Police Station and thereafter he was asked to meet 6th accused AC Haridas and then the 4th accused was directed to appraise PW15 of the untoward incident happened in the Police Station. Then they sought the help of PW15 to register a false case against Udayakumar and PW1 stating their time of arrest as of 4.30 PM. As PW15 had no occasion to see the said persons he was reluctant to register the same and thereafter accused Nos. 4 and 5 insisted and coerced PW15 with the dire consequences and not being able to withstand their threat finally he conceded to the illegal demands. Accordingly 6th accused Haridas got prepared a draft FIR by Mohanan Chettiyar and it was handed over to PW15 and who in turn entrusted to PW18, for preparing Crime 703/2005. Thereafter at the instigation and threat of accused Nos. 4 to 6, he put his signature on the said crime and it was at 3.30 AM on 28/09/2005 and at that time, he was not aware of the death of Udayakumar.
Then they got prepared remand application, arrest memo, inspection memo and custody memo of Udayakumar and PW1 and obtained signature of PW15. He was also made to create false entry in GD with regard to the time of registration of Crime No. 703/2005 as of 8.30 PM and in fact it was registered after the 3 AM on the next day. The GD of Fort Police Station was marked as Ext.P4 and the false entry made by PW15 regarding the time of registration of Ext.P17 FIR was marked as Ext.P4(a). Then he was also forced to make false entries in Ext.P20 PSR (Register of Property found in search of Prisoners) as to the time of arrest of Udayakumar and PW1. In Ext.P7 sentry relief book also he made false entries as to the time of registration of Crime No. 703/2005 as of 8.30 PM, that particular entry is marked as Ext.P7(a). Ext.P21 is the inspection memo, Ext.P22 is the arrest memo and Ext.P23 is the remand report of PW1 signed by PW15 Raveendran Nair as per the direction and coercion of accused Nos. 4 to 6. Ext.P24 is the inspection memo of Udayakumar signed by PW15 and the said entry is also false and it was testified by PW15. The note book of PW15 was marked as Ext.P25 and in that he made false entries as to the time of registration of Ext.P17 FIR and that particular entry is marked as Ext.P25(a).
Ext.P27 is the register for arrestee and in that document he prepared details of arrestee in Crime No. 703/2005 subsequent to Ext.P17 FIR and hence the said entries are also fabricated. Ext.P28 is the arrest memo book of Fort Police Station and carbon copy of arrest memo of PW1 was marked as Ext.P28(a) and its original was marked as Ext.P22. Carbon copy of arrest memo of Udayakumar was marked as Ext.P28(b) and in these documents also PW15 signed after the fabrication of Ext.P17 document as per the direction and coercion of accused Nos. 4 to 6.”
The Ld Court observed that the prosecution has convincingly proven the conspiracy committed by the accused to screen the torturers from legal punishments. It noted, “Now the evidence on record would amply prove beyond reasonable doubt that accused No.1, 2 and 4 to 6 entered into a criminal conspiracy at Fort Police Station after the confirmation of death of Udayakumar who was illegally detained in the Police Station and subjected to custodial torture which resulted in his death and thereafter they destroyed the weapons namely towel (thorth) and bamboo cane used by accused Nos. 1 and 2 for torturing deceased Udayakumar to death and also fabricated false documents. These acts of the accused were with the intention of screening the accused Nos. 1 to 3 from legal punishment after fully knowing that accused Nos. 1 and 2 subjected deceased Udayakumar to custodial torture and which resulted in his death. So the accused persons 1, 2 and 4 to 6 committed the offence punishable u/Ss. 120B read with 201 IPC.
- The evidence on record would prove that accused Nos. 1, 2 and 4 to 6 conspired together and in furtherance of their conspiracy they fabricated Ext.P17 FIR with the help of fabricated Ext.P18 mahazar. Subsequently they caused to make false entries in the registers and records of Fort Police Station regarding the arrest and illegal detention of Udayakumar and in that conspiracy approvers are also participated due to the force, threat and coercion of accused Nos. 4 to 6. Accused Nos. 1, 2 and 4 to 6 are public servants and they fabricated these documents by misusing and abusing their position as public servants and these documents were created to cause injuries to the deceased as well as PW1 and hence they committed offence punishable u/S 120B read with 167 IPC.”
Murder of the deceased by Accused Nos. 1 & 2
On this charge, the Ld Court stated, “144. In the light of the above findings, accused Nos. 1 and 2 are found guilty of having committed the offences punishable u/Ss. 323, 331, 348 and 302 IPC read with Section 34 IPC and also u/S 201 and 167 IPC read with 120B IPC and accused Nos. 4 to 6 are found guilty of having committed offences punishable u/Ss. 201 and 167 IPC read with 120B IPC and they are convicted for the said offences.”
Consideration the mitigating and aggravating circumstances in cases of capital punishment
The Ld Court stated that on drawing the balance sheet of aggravating and mitigating circumstances, the aggravating circumstances outweighed the mitigating circumstances in this case. On considering all the aspects, the Court held that the brutal and dastardly murder committed by accused Nos. 1 and 2 would come under the category of rarest of rare cases and imposition of life imprisonment would be completely inadequate and would not meet at the ends of justice. So the accused Nos. 1 and 2 deserves maximum punishment for the offence punishable u/S 302 IPC.
It noted:
“159. Here the brutal and dastardly murder was committed by accused Nos. 1 and 2 police personnel who are duty bound to protect the life and property of the citizens and if they venture into these kinds of crimes the safety of the public would be in a knot. These acts of the accused persons would definitely adversely affect the very institution of the police department and if the faith of the people in the institution is lost that would affect the public order and law and order of the society and which is a dangerous situation. Family backgrounds of the accused persons are not relevant, considering the brutality of the murder. On considering all these aspects, I am of the view that the brutal and dastardly murder committed by accused Nos. 1 and 2 would come under the category of rarest of rare cases and imposition of life imprisonment would be completely inadequate and would not meet at the ends of justice. So the accused Nos. 1 and 2 deserves maximum punishment for the offence punishable u/S 302 IPC.”
Quantum of Sentence/punishment
On considering all these facts and circumstances of the case, the Court of the CBI Special Judge convicted the five accused person viz. Jithakumar (Accused No.1), Sreekumar S.V. (Accused No.2), T. Ajith Kumar (Accused No.4), E.K.Sabu (Accused No.5) and T.K. Haridas (Accused No.6) and the following sentence are passed:-
- Accused Nos. 1, 2 and 4 to 6 are sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs 5,000/- each u/S 201 IPC read with Section 120B IPC.
- Accused Nos. 1, 2 and 4 to 6 are sentenced to undergo rigorous imprisonment for 3 years u/S 167 IPC read with Section 120B IPC.
- Accused Nos. 1 and 2 are sentenced to undergo simple imprisonment for 1 year u/S 323 IPC read with Section 34 IPC.
- Accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs 5,000/- each u/S 331 IPC read with Section 34 IPC.
- Accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs 5,000/- each u/S 348 IPC read with Section 34 IPC.
- For the offence punishable u/S 302 read with 34 IPC, accused No. 1 Jithakumar and accused No.2 Sreekumar are sentenced to death and they will be hanged by neck till they are dead. They are also sentenced to pay a fine of Rs 2 lakh each. In default of payment of fine, they shall undergo rigorous imprisonment for 5 years.
The court stated that the substantive sentence of imprisonment on accused persons shall run concurrently.
Compensation to NoK of deceased Udayakumar:
The Court directed that out of the fine amount, if realised or remitted, a sum of Rs 4 lakh shall be paid to Prosecution Witness no. 2 Prabhavathy Amma, mother of deceased Udayakumar u/s 357(1)(b) CrPC. Since the compensation awarded is not adequate, the Court recommended that the District Legal Service Authority awards proper compensation to the dependents of the deceased Udayakumar u/s 357(A) CrPC.
