# MYLADIMMAL SURENDRAN & ORS v. STATE OF KERALA

- **Citation:** [2010] 10 S.C.R. 916
- **Court:** Supreme Court of India
- **Decided:** 2010-09-01
- **Case number:** Criminal Appeal No. 839 of 2006
- **Bench:** B. Sudershan Reddy, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/myladimmal-surendran-ors-v-state-of-kerala-26294
- **Pages:** 29

## Headnote

Penal Code, 1860 - ss. 302, 143, 147, 148 and 341 -
C Death of victim due to political rivalry - Incident witnessed by
wife and others - Conviction and sentence ulss. 302, 143,
147, 148 and 341 by Session Court - Order of conviction
upheld by High Coutt -
Death sentence reduced to
imprisonment for life - Interference with - Held: Not called for
o - Consistent _eye-witness account of three witness_es-wife,
PW2 and PW 3, together with the evidence of witnesses for
the period immediately after the incident - Dying declaration
corroborates eye-witness account given by wife,. PW2 and
PW3 - Nature of injuries consistent with the weapons used
E
by assailants - No delay in lodging FIR and in sending the
copy of FIR to Magistrate - Evidence of wife could not be
discarded on the basis that she was an interested witness and
of PW 2 and PW 3 that they were chance/partisan witnesses
- Non-holding of test identification parade did not cause any
F
prejudice to accused - All accused identified in court - Thus,
there is no reason to disturb the concurrent conclusions
reached by trial court and.High Court- Evidence - Witnesses
- Interested witness/chance witness/partisan witnesses -
Identification - Test identification parade - Delay in lodging
G FIR.
Many political murders and other crimes took place
in 'K' district of Kera la. 'MV', an activist of the Communist
Party of India (Marxist) was murdered. Thereafter, 'PC'-
leader of BJP, received death threats, thinking to be the
H
916
MYLADIMMAL SURENDRAN & ORS. v. STATE OF
917
KERA LA
brain behind the murder of 'MV'. 'PC' was then provided
A
police security. On the fateful day, accused persons-A1
to AS, armed with deadly weapons, hacked 'PC' to death
in broad day light, in front of his wife-PW 1. The father of
the deceased-CW1 also witnessed the incident. AccusedA2 absconded. The Court of Session convicted the
B
appellants-accused persons A1, A3 to AS for the offences
punishable under Sections 143, 147, 148, 341 and 302
IPC. They were sentenced to death for the offence under
Section 302 IPC. For offences under Sections 143, 147,
148, 341 they were sentenced to undergo rigorous c
imprisonment for different periods, varying from two
months to three years. The High Court upheld the order
of conviction but converted death sentence to
.' imprisonment for life. Therefore, the appellants filed the
instant appeals.
o
Dismissing the appeals, the Court
HELD:. 1.1 Given the seriousness of the allegations
made as also the imposition of the death penalty by the
trial court, the High Court correctly considered the entire
E
evidence with great care and caution. The High Court
took cautionary approach because this was one of the
many political murders and crimes which had been
committed in 'K' district during the relevant time. The
deceased was a BJP leader and the accused were
F
workers of the Marxist Party. It came in evidence before
the trial court that the deceased was a candidate of the
BJP in the General Election for the 'P' Assembly
Constituency. Even though he got only 10,000 votes, he
was threat~ned that he would be kill~d. Consequently, the
G
police aid post was established about 1 SO meters near
the house of 'PC'. The added reason for danger to the life
of the deceased was that he was suspected to be a
mastermind behind the murder of a Marxist Party activist
called 'MV'. Demands were made by the Marxist Party, as
H
918
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A well as the public in general, for the deceased to be
arrayed as an accused in the said murder. The High Court
also noticed that the danger to the life of the deceased
became stronger when the LDF Government came to
power. The house of the deceased was situated in a
B disturbed area. [Para 11] (930-A-E]
1.2 The High Court examined the entire evidence and
concurred with the conclusions reached by the trial court.
There is no reason to differ with the conclusions which
C seem to flow naturally from the evidence on record. [Para
12] (930-F-G]
1.3 T

## Text

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A
B
[2010] 10 S.C.R. 916
MYLADIMMAL SURENDRAN & ORS.
v.
STATE OF KERALA
(Criminal Appeal No. 839 of 2006)
SEPTEMBER 01, 2010
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
Penal Code, 1860 - ss. 302, 143, 147, 148 and 341 -
C Death of victim due to political rivalry - Incident witnessed by
wife and others - Conviction and sentence ulss. 302, 143,
147, 148 and 341 by Session Court - Order of conviction
upheld by High Coutt -
Death sentence reduced to
imprisonment for life - Interference with - Held: Not called for
o - Consistent _eye-witness account of three witness_es-wife,
PW2 and PW 3, together with the evidence of witnesses for
the period immediately after the incident - Dying declaration
corroborates eye-witness account given by wife,. PW2 and
PW3 - Nature of injuries consistent with the weapons used
E
by assailants - No delay in lodging FIR and in sending the
copy of FIR to Magistrate - Evidence of wife could not be
discarded on the basis that she was an interested witness and
of PW 2 and PW 3 that they were chance/partisan witnesses
- Non-holding of test identification parade did not cause any
F
prejudice to accused - All accused identified in court - Thus,
there is no reason to disturb the concurrent conclusions
reached by trial court and.High Court- Evidence - Witnesses
- Interested witness/chance witness/partisan witnesses -
Identification - Test identification parade - Delay in lodging
G FIR.
Many political murders and other crimes took place
in 'K' district of Kera la. 'MV', an activist of the Communist
Party of India (Marxist) was murdered. Thereafter, 'PC'-
leader of BJP, received death threats, thinking to be the
H
916
MYLADIMMAL SURENDRAN & ORS. v. STATE OF
917
KERA LA
brain behind the murder of 'MV'. 'PC' was then provided
A
police security. On the fateful day, accused persons-A1
to AS, armed with deadly weapons, hacked 'PC' to death
in broad day light, in front of his wife-PW 1. The father of
the deceased-CW1 also witnessed the incident. AccusedA2 absconded. The Court of Session convicted the
B
appellants-accused persons A1, A3 to AS for the offences
punishable under Sections 143, 147, 148, 341 and 302
IPC. They were sentenced to death for the offence under
Section 302 IPC. For offences under Sections 143, 147,
148, 341 they were sentenced to undergo rigorous c
imprisonment for different periods, varying from two
months to three years. The High Court upheld the order
of conviction but converted death sentence to
.' imprisonment for life. Therefore, the appellants filed the
instant appeals.
o
Dismissing the appeals, the Court
HELD:. 1.1 Given the seriousness of the allegations
made as also the imposition of the death penalty by the
trial court, the High Court correctly considered the entire
E
evidence with great care and caution. The High Court
took cautionary approach because this was one of the
many political murders and crimes which had been
committed in 'K' district during the relevant time. The
deceased was a BJP leader and the accused were
F
workers of the Marxist Party. It came in evidence before
the trial court that the deceased was a candidate of the
BJP in the General Election for the 'P' Assembly
Constituency. Even though he got only 10,000 votes, he
was threat~ned that he would be kill~d. Consequently, the
G
police aid post was established about 1 SO meters near
the house of 'PC'. The added reason for danger to the life
of the deceased was that he was suspected to be a
mastermind behind the murder of a Marxist Party activist
called 'MV'. Demands were made by the Marxist Party, as
H
918
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A well as the public in general, for the deceased to be
arrayed as an accused in the said murder. The High Court
also noticed that the danger to the life of the deceased
became stronger when the LDF Government came to
power. The house of the deceased was situated in a
B disturbed area. [Para 11] (930-A-E]
1.2 The High Court examined the entire evidence and
concurred with the conclusions reached by the trial court.
There is no reason to differ with the conclusions which
C seem to flow naturally from the evidence on record. [Para
12] (930-F-G]
1.3 The wife was an eye-witness to the murderous
assault, which resulted in the death of her husband. The
wife-PW1 categorically stated that the accused persons
D attacked her husband at the stated time and place; and
that two of the accused persons hacked her husband
with a billhook. However, she was not aware of the names
of the accused persons .at that time. The names were
given to her by CW1, three days after the incident. During
E her deposition in court, she clearly stated that she-could
identify the assailants. She actually identified them in the
court. When questioned in court, she categorically stated
that her husband tried to turn the motorcycle round on
the road, but it fell down; that she ran to the house
. F through the very same route where her husband and the
assailants also followed; and that the persons who
injured her husband, were_ the persons she identified in
the court. (Para13 and 14] (930-H; 931-G-H; 932-A-B]
1.4 The High Court rightly concluded that the
G evidence of PW1 was consistent with the evidence given
by PW2 and PW3. PW2 stated that he saw the deceased
being hacked with\ a billhook with a curved beak. He
specifically named the accused 'S'. Upon being brutally
wounded, the deceased fell down. The witness also
H
MYLADIMMAL SURENDRAN & ORS. v. STATE OF 919
KERALA
stated that, thereafter, all the five accused attacked the A
deceased with their respective weapons. He recognized
four of the persons present in the court. He also stated
that he knew the names of each of them and could point
out each person by name; that the name of the
absconding assailant is 'P'; and that A3 was armed with B
an axe and the others with billhook with pointed beak/
curved beak. He identified the weapons of offence. The
evidence of PW2 was reiterated by PW3. The High Court
also noticed that PW4-neighbour also reached the scene
of the assault. He stated that the deceased in reply to a c
question of the policemen stated while groaning with
pain, that 'S and others' were the assailants. He
confirmed that the deceased was facing assassination
threats after the murder of 'MV' at place 'C'. He deposed
that he had seen in the newspaper that Marxist people 0
had gone on Satyagraha in their office demanding
inclusion,of the deceased as an accused in the 'MV'
murder case. The High Court also noticed the evidence
of PW7, who was posted in the police picket near the
ho'use of the deceased. He stated that they had gone to E
the scene of the crime when they were informed by some
workmen that somebody had been stabbed. When they
I
reached the place of incident, they saw the deceased
was lying covered with blood in the lap of his father CW1.
I
PW 7 stated that on being asked the names of the
assailants, the victim gave the name which he was
F
unable to understand. However, he stated that the victim
was conscious at that time. With the consistent eyewitness account of three witnesses together with the
evidence of the witnesses for the period immediately after
the incident, it would be well-nigh impossible to disturb G
the concurrent conclusions reached by the trial court and
the High Court. [Paras: 15, 16, 17, 18, 19 and 20] [932-C;
H-933-A-C, H; 934-A, C-E; 935-A-D]
H
920
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
1.5 The father of the deceased, author of the first
information statement passed away before the trial. In the
first information statement which was converted into a
FIR, he categorically stated that on hearing the screams
of the daughter-in-law, he ran back towards the place
B where he had met his son and daughter-in-law. He saw
that the motorcycle had been abandoned in the road. His
son was running towards the house and was being
chased by five to eight persons. They were hacking his
son with weapons like sword. When he yelled for help,
C the accused 'S' hacked forcefully on the back of the
deceased with a sword like weapon in his hand and ran
away. The High Court correctly observed that the
statement could not be considered as a substantive piece
of evidence. [Para 21] [935-E-G; 936-A-B]
D
1.6 The High Court accepted that the dying
declaration might not be sufficient for conviction of the
accused. However, it could be considered for
corroboration of the evidence of other witnesses. PW2
and PW3 categorically stated that the deceased even
E
though badly injured had stated that the assailants were
'S' and others. The High Court was also cautious to
ensure that the injured was in a fit state to mal<e the dying
declaration. Therefore, it examined the evidence of the
doctor who clearly stated that even after being brutally
F
injured, the deceased could have talked for another 20
minutes. PW10, the doctor, who conducted the postmortem stated that the cause of death was due to
bleeding and irreversible shock neural and vascular. He
also stated that Injury Nos. 1, 4, 6, 7, 10, 15, 16, 17 and 21
G could be caused by M01 or a weapon similar to M01.
H
Injury No. 12 could be caused by a sharp-edged weapon
like an axe. The doctor stated that after sustaining injury
No.12 ,the victim must have received neural shock for
sometime and, thereafter, he would have been able to talk
MYLADIMMAL SURENDRAN & ORS. v. STATE OF
921
KERA LA
and drink, approximately for another 20 minutes. The
A
doctor also opined after looking at the injuries that the
same were caused-by persons trained in killing. [Paras
22, 24 and 25] [936-C-D; 939-C-E]
1.7 The High Court rightly observed that there was
8
no unexplained delay in lodging the FIR and in sending
the copy of the same to the Magistrate. In any event, no
prejudice was caused to the accused persons. [Para 26]
[940-C-D]
1.8 The evidence given by the wife of the deceased C
was unimpeachable. It could not be discarded, on the
basis that she was an interested witness. If such a wide
proposition was to be accepted the evidence of all the
witnesses who were relatives of a victim of a violent crime
would be _rendered unacceptable. Merely because PW1
D
happens to be the wife of the deceased would not justify
her being branded as an interested witness. The evidence
of the wife is followed by the consistent evidence given
by PW2 and PW3 which was further corroborated by the
dying declaration made by the injured within minutes of E
being assaulted. In such circumstances, it cannot be
accepted that the evidence of the eye-witnesses ought
to be disbelieved. [Para 27] [940-E-G]
1.9 The evidence of PW 2 and PW 3 could not be
brushed aside on the ground that they were chance as
well as partisan witnesses. The deceased was UC agent.
PW2 wanted to take a loan from UC for construction of
his house. Therefore, he went to meet the deceased at
F
his house. He was accompanied by his friend PW3. Both
of them left the house of the deceased in the G
circumstances narrated and clearly witnessed the
second assault on the deceased. Merely because PW2
and PW3 were sympathizers of BJP, their evidence could
not be brushed aside. At best, their evidence has to be
H
922
SUPREME COURT REPORTS
[2010] 10 S.C.R..
A
carefully scrutinized. On, a car;ul scrutiny of the
evidence, the trial court and the High Court rightly
concluded that the evidence of PW ·and PW3 could not
be discarded. [Paras 28, 30 and 31) [940-H; 941-D-E; 942C-D]
B
State of Rajasthan vs. Smt. Kalki and Anr. (1981) 2 SCC
752; Sachchey Lal Tiwari vs. State of UP. (2004) 11 SCC
410 - relied on.
1.10 No test identification parade was held. The wife
C
and the other eye-witnesses, PW 2 and 3, were asked to
identify the accused for the first time in the court, some
eight and a half years after the incident. The widow had
witnessed the brutal murder of her husband, right in front
of her eyes in broad day light. In such circumstances, it
D would be difficult, if not impossible, for her to forget the
faces of the assailants. They would be imprinted on her
psyche for ever. She had come face to face with the
assailants. She would have no reason whatsoever to
falsely implicate the appellants. In court, she categorically
E
deposed and identified each of the assailants. She was
absolutely truthful and straight forward. A1 lives very near
to the house of the deceased. In such circumstances,
she could have easily stated that she had known A1
earlier. There are no embellishments seen in her evidence
F
throughout. The High Court rightly rejected that nonholding of the test identification parade caused any
prejudice to the accused. The evidence of PW1 is fully
supported/corroborated by the evidence of PW2 and PW3
on the point of second assault. They identified all the
G accused in court. Their identification was further
strengthened by the fact that all the accused were known
to the two witnesses earlier. Therefore, they were
identified by name in court. [Para 34) [943-G-H; 944-A-D]
Ramanbhai Naranbhai Patel vs. State of Gujarat (2000)
H
MYLADIMMAl SURENDRAN & ORS. v. STATE OF
923
KERALA
1 sec 358 - relied on.
1.11 Upon a due consideration of the entire facts and
circumstances of the case, the judgment of the High
Court does not call for any i_nterference. [Para 35]
Case Law Reference:
(1981) 2 sec 152
Relied on.
Para 29
(2004) 11 sec 410
Relied on.
Para 30
(2000) 1 sec 358
Relied on.
Para 33
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 839 of 2006.
A
B
c
From the Judgment & Order dated 16.11.2005 of the High
Court of Kerala at Ernakulam in Crl. Appeal No. 159 of 2005.
D
WITH
Criminal Appeal No.840 of 2006.
C.K. Sasi for the Appellants.
E
R. Sathish, S. Geetha for the Respondent.
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. These appeals have
F
been filed against the common judgment passed by the High
Court of Kerala, at Ernakulam in Criminal Appeal Nos. 214 and
159 of 2005 filed by the accused/appellant no.1 and accus~d/
appellant no.3 to accused /appellant no.5 respectively whereby
the High Court was pleased to confirm the conviction of the G
accused/appellants under Sections 143, 147, 148, 341, 302
read with 149 IPC, but partly allowed their appeals to the extent
that the sentence of death imposed upon by the Sessions Court
_was converted to imprisonment for life.
H
A
B
924
SUPREME COURT REPORTS
[2010] 10 S.C.R.
2. Both the trial court and the High Court have concluded
that the deceased was killed due to political vendetta. The
conclusions reached by the two Courts do not seem to be
without basis. The High Court has noticed that there were many
political murders and other crimes in Kannur district of Kerala
at the time when Sri Panniyannur Chandran was murdered. He
was murdered to avenge the murder of an activist of the
Communist Party of India (Marxist), Mamman Vasu within the
limits of Checkli Police Station. At that time, the deceased, Sri
Panniyannur Chandran was 'the Secretary of the District
c 'Committee of BJP. Following the murder of Mamman Vasu,
death threats were often.received by the deceased. He was
- thought to be the brain behind the murder of the CPM activist.
'It was said that such threats were made even in the Peace
Committee Meetings that followed the killing of Mamman Vasu.
\ D
· The State Special Branch officials being satisfied about the
possible threat to the life of deceased had conveyed the
information to the local police station of the area in which the
deceased resided. Consequently, a Police Picket was set up
near the house of the deceased to provide security. Tragically,
it appears that in spite of all the security measures, the
E
assailants had their way. He was murdered on 25.5.1996 in
broad day light, in front of his wife. He was literally hacked to
death, by trained killers.
F
3. We may now notice the facts.
4. On 25.5.1996, between 2:30 and 3:00 p.m. Sri
Panniyannur Chandran accompanied by his wife, Arundhuti
(hereinafter referred to as PW1) went to the Thalassery
Railway Station riding a motor bike to see off his brother-inG law to Madras. On their return, they met the father of the
deceased, who told them that he was going to the ration shop
to buy rice. On their way back, when they had almost reached
home, they found that the road had been blocked by
Arayakkanidy Sukumaran @ Suku (hereinafter referred to as
A 1 ), Thayyullathil Thazhekuniyil Pavithran @ Pavi (hereinafter
H
referred to as A2), Myladimmal Surendran (hereinafter referred
'
MYLADIMMAL SURENDRAN & ORS. v. STATE OF
925
KERALA [SURINDER SINGH NIJJAR, J.]
to as A3), Kaithayullaparambath Preman (hereinafter referred
A
to as A4) and Kunhiparambath Purushothaman @ Purushu
(hereinafter referred to as A5). They were all armed with
deadly weapons. Though the deceased attempted to avoid
them. he was unable to do so, as the engine of the motor cycle
went dead. The wife jumped off the motorcycle just before it fell.
B
She ran away. Then from a distance she saw that A 1 assaulted
the deceased with a billhook which injured his left hand. The
deceased started running towards his house hotly chased by
the accused armed with deadly weapons. The wife ran to the
place where they had met CW1 . But hearing her screams, CW1 c
was already coming towards the trouble spot. On meeting CW1,
she informed him about the incident. She then ran to the house
of her husband thinking that the deceased must have reached
home. Finding that her husband was not in the house, she again
ran back, with the sister of the deceased, to the place of ass.ault.
0
She found the deceased lying with his head on the lap of_his
father. According to. the wife, the incident occurred at about .
4:45 p.m. At that time, she did not know the names of the
accused. She was told the names by CW1 after three days.·
5. The Policemen on picket duty reached the spot and took
E
Panniyannur Chandran to the general hospital where he
breathed his last at 5:50 p.m. The father of the deceased
reported the incident which was recorded by the C.I. of Police,
Thalassery. The investigation was carried on for sometime by
the local Police but eventually for efficient investigation the case
F
was transferred to the Crime Branch. PW17, a Detective
Inspector of the Crime Branch conducted the investigation from
that point onwards. In the mean time A 1 to A5 surrendered
before the Addi. C.J.M, Thalassery and were remanded to
custody. After investigation, PW17 submitted final report G
against A1 to A5 in the court of Addi. CJM, Thalassery for.
offences under Sections 143, 147, 148, 341 and 302 read with
149 IPC. At that stage A2 absconded. Therefore the case
against A2 was split up and the case against A 1, A3 to A5 was
committed to the Court of Sessions, Thalassery: Since the
H
926
SUPREME COURT REPORTS
(2010] 10 S.C.R.
A
accused pleaded not guilty they were duly put on trial.
-
6. By order dated 12.11.2004, the Sessions Court
convicted the appellants herein for the offences punishable
under Sections 143, 147, 148, 341 and 302 IPC. For the
8
offences punishable under the aforesaid Sections (except
Section 302 IPC) they were sentenced to undergo rigorous
imprisonment for different periods, varying from two months to
three years. They were, however, sentenced to death for the
offence under Section 302, IPC.
C
7. Challenging the aforesaid judgment, A1 filed Criminal
Appeal No. 214 of 2005 and A3 to A5 filed Criminal Appeal
No. 159 of 2005 before the High Court of Kerala at Ernakulam.
The High Court vide order dated 16.11.2005 confirmed the
conviction of the accused under Section 302 read with 149 I PC
D
but the sentence of death was converted to imprisonment for
life. Aggrieved by the said judgment, A 1 filed Crl. Appeal No.
840 of 2006 and A3 to A5 filed Crl. Appeal No. 839 of 2006
before this Court.
E
8. We have heard Mr. Surinder Singh, learned Senior
Advocate for the appellants and Mr. R. Satish on behalf of the
respondent State.
9. After taking us through the relevant materials relied on
by the prosecution, Mr. Surinder Singh learned Senior Advocate
F
raised the following contentions:
G
H
(i)
Ext P1, the First information Statement was
given by the father of the deceased (CW1).
who died one year before trial. The FIS has
been wrongly used as a substantial piece of
evidence to corroborate the evidence given
by the prosecution witnesses. In the First
Information Statement, he had stated thafthe
incident occurred while his son was returning
from the Railway Station together with his
MYLADIMMAL SURENDRAN & ORS. v. STATE OF 927
KERALA [SURINDER SINGH NIJJAR, J.]
wife (PW1) after seeing off his brother in law.
A
He had further stated that earlier at about 3
p.m., three persons had come to his house
and enquired about whereabouts of the
deceased. He had told them that his son had
gone to the railway station and would be· B
coming back by about 4:30 p.m. He had told
them to wait for his son in the house. He then
-::,left for the Ration Shop to buy rice. On his
way to the Ration Shop, he had met his son
returning on his motorcycle with his wife. On c
enquiry from his son, he had told him that he
was going to buy rice from the Ration Shop.
Soon thereafter, he heard the cries of his
daughter-in-law. He rushed back to the place
where he had met his son. There he saw D
Arayakkamdy Sukumaran @ Suku and
others assaulting the deceased with deadly
weapons. He stated that the assault on his
son was due to political rivalry.
(ii)
The FIR is not the correct version of the
E
assault and the death of the victim. The FIS
is the earliest version of the incident. ..The
prosecution cannot thereafter give a different
version. In the FIS the name of the main
culprit is given as "Suku of Arayakkamdy
F
House". The name of the first accused in the
trial is Suku (short for Sukumaran).
(iii)
The FIR was not sent to the Magistrate
forthwith, as is evident from the seal of the G
court of Magistrate, which is dated 29th May.
Surprisingly, the Magistrate has initialed the
FIR on 26.5.1996.
(iv)
It is then submitted that even if the delay in
recording the FIR is not fatal, the High Court H
A
B
928
SUPREME COURT REPORTS
[2010] 10 S.C.R.
ought to have scrutinized the evidence
meticulously.
(v)
The recovery of the MOS itself was not
acceptable under Section 27 of the
Evidence Act.
(vi)
The dying declaration that "Suku and others"
had committed the crime is unreliable. With
so many injuries, it is impossible that the
victim would give a coherent answer to any
C
question. In fact, PW7 at the Police Picket
stated that the name uttered by the victim
was not clear to him.
D
E
F
G
(vii) The learned senior counsel submitted that
there was suspicion regarding the identity of
the accused as no test identification parade
was conducted. PW1 identified the accused
in court after eight years and three months.
Since PW1 did not know the accused it
would be unsafe to rely upon her identification
of the accused.
(viii) The learned senior counsel then attacked the
evidence of PW2 and PW3. According to the
learned senior counsel, there is no
explanation. why their statements were
recorded 3 or 4 days after the incident. Both
the witnesses being BJP sympathizers were
planted by the prosecution.
(ix)
Another submission made by the learned
senior counsel was that if the identify of the
accused was known, their names would have
been mentioned at the Police Picket.
10. On the other hand Mr. R. Satish, learned counsel for
H the State of Kerala, submitted that:
MYLADIMMAL SURENDRAN & ORS. v. STATE OF 929
KERALA [SURINDER SINGH NIJJAR, J.]
(i)
The trial court and the High Court have
A
convicted the accused on the basis of the
eye-witness account of three witnesses.
PW1 is the wife of the deceased. She had
(ii)
no reason to falsely implicate anyone.
The evidence given by the wife is consistent
with the evidence of PW2 and PW3, who
witnessed the second phase of the
murderous assault.
B
(iii)
c
The presence of PW2 and PW3 cannot be
doubted on the ground that they are chance
witnesse!} or that they are partisan
witnesses.
(iv) . The nature of injuries caused are consistent
D
with the weapons used, by the assailants.
(v)
Medical evidence confirms the ocular
evidence.
(vi)
The dying declaration also adds further E
corroboration to the eye-witness account
given by PW1, PW2 and PW3.
(vii)
Non holding of the test identification parade
would not weaken the eye-witness account of F
PW1, PW2 and PW3. All ·of them have
· identified the accused in court.
(viii) There is no delay in recording the FIR There
is also no delay in sending a copy of the FIR
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to the Judicial Magistrate, 1st Class.
(ix)
Both the courts have given concurrent
findings, therefore, no case is made out for
interference by this Court.
·
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930
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
11. We have considered the submissions made by the
learned counsel. Given the seriousness of the allegations made
as also the imposition of the death penalty by the trial court,
the High Court, in our opjnion, correctly considered the entire
evidence with great care and---caution. The other reason which
B impelled the High Court to take this,cautionary approach was
that this was one of the many politi'Cal murders and crimes
which had been committed in Kannur District during the relevant
time. It was noticed that the deceased was a BJP leader and
the accused were workers of the Marxist Party. It had come in
c evidence before the trial court that the deceased had been a
candidate of the BJP in the General Election for the Peringalam
Assembly Constituency. Even though he had got only 10,000
votes, he had been threatened that he would be killed.
Consequently, the police aid post had been established about
D 150 meters near his house. The added reason for danger to
the life of the deceased was that he was suspected to be a
mastermind behind the murder of a Marxist Party activist called
Mamman Vasu. Demands had been made by the Marxist
Party, as well as the public in general, for the deceased to be
arrayed as an accused in the aforesaid murder. The High Court
E also noticed that the danger to the life of the deceased became
stronger when the LDF Government came to power. To make
it even worst, the house of the deceased was situated in a
disturbed area.
F
12. The High Court thereafter examined the entire
evidence threadbare and concurred with the conclusions
reached by the trial court. We see no reason to doubt, let alone
differ with, the conclusions which seem to flow naturally from
the evidence on record. Although the conviction of the accused
G persons was confirmed, the High Court converted the death
sentence to imprisonment for life.
13. At the outset, we may notice that this is one of those
rare cases where the wife is an eye-witness to the murderous
assault, which resulted in the death of her husband. She
H
MYLADIMMAL SURENDRAN & ORS. v. STATE OF
931
KERALA [SURINDER SINGH NIJJAR, J.]
appeared in the Court as PW1. In her evidence, she has clearly A
stated that on 25.5.1996 she and her husband had gone to the
local railway station to see off her brother on the train to
Madras. They had set off from the house between 2.30 p.m. to
3 p.m. on her husband's motorcycle. They left the railway station
after 3.45 p.m. On the way back home, they bought some B
apples from fruit stall and put them in a box attached to the
motor bike. When they reached near the house they met CW1
father of the deceased. On being asked by her husband, CW1
told them that he was going to the Ration Shop to buy some
rice. Whilst they were on their way home, they saw five persons C
standing in the middle of the road at the curve. On being.
obstructed, her husband tried to go round them. Tragically,
however, the engine of the motorcycle somehow got switched
off. She immediately jumped off the motorcycle, which in any
event fell down. She then saw one of the accused persons hack
her husband with a billhook. Her husband tried to block the blow/ D
by raising his left arm which in the process got injured. She ·
started screaming. While running away from the scene, she
saw her husband also running towards the house, hotly pursued
by the five assailants, waving their deadly weapons. She ran
to locate CW1, who was already rushing towards the trouble
E
spot, having heard her shrieks. She then witnessed the second
assailant Purushu (AS) hack her husband with the billhook. She
ran to the house of the deceaseu taking the canal road, thinking
that he would have reached home by then. However, finding that
her husband had not reached, she again rushed back to the
F
scene of the incident, along with the sister of the deceased. It
was at that time she saw her husband lying on the ground with
his head on the lap of his father CW1. He had injuries all over
his body and he was drenched in blood.
G
14. In her evidence, she had categorically stated that the
accused persons had attacked her husband at t~e stated time
and place. She, however, stated that she was not aware of the
names of the accused persons at that time. The names were
given to her by CW1 three days after the incident. During her H
932
SUPREME COURT REPORTS
(2010] 10 S.C.R.
A
deposition in court, she clearly stated that she can identify the
assailants. She actually identified them in court. When
questioned in court, she categorically stated that her husband
tried to turn the motorcycle round on the road, but it fell down.
She also stated that she ran to the house through the very same
B
route where her husband and the assailants had also followed.
She very clearly stated in court that the persons, that injured
her husband, were the persons she identified in Court.
15. The High Court has also rightly concluded that the
evidence of PW1 is consistent with the evidence given by PW2
C
and PW3. According to these witnesses, on 25.9.1996, PW2
accompanied by his friend PW3 had come to the house of the
deceased. He had promised to help PW2 to get the loan. On
reaching the house of the deceased at about 4.30 p.m. they
met CW1. He informed them that his son (the deceased) had
D
gone to the railway station to see off his brother-in-law. He also
told them that the deceased was to come back home shortly,
so they could wait in the house for him. CW1 also told them
that he was going to Ration Shop to buy some rice. After about
4-5 minutes, they left the house, after informing the sister of the
E
deceased that they will meet him on the way. When they had
moved about a 100 meters away from the house they heard
the shrieks of a woman. They started running towards the
direction from where the shrieks were coming. At that time, they
also heard the shouts of some men asking them to come fast.
F
When they were about 50 meters away, they saw the deceased
being chased by the five accused. They were holding the
weapons in their hands. When they reached about 30 meters
away, they saw one of the accused persons attacking (hacking)
the deceased on the left side of the back. By that time, they
G
were standing about 1 O meters away fr9m the deceased and
the assailants.
16. PW2 had categorically stated that he saw the
deceased being hacked with a billhook with a curved beak.
He specifically named the accused Sukumaran. Upon being
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MYLADIMMAL SURENDRAN & ORS. v. STATE OF
933
KERALA [SURINDER SINGH NIJJAR, J.]
brutally wounded, the deceased fell down. The witness also
A
stated that thereafter all the five accused attacked the
deceased with their respective weapons. He recognized four
of the persons present in court. He also stated that he knew
the names of each of them and he can point out each person
by name. The witness then actually pointed out the accused by
name. This witness further goes on to state that the name of
B
the absconding assailant is 'Pavithran'. He stated that A3 was
armed with an axe and the others with billhook with poinfed
beak/curved beak. He identified the weapons of offence.
According to this witness, the body of the deceased was badly c
cut up. By the time, the father of the victim, CW1 reached the
spot, the five assailants had fled away. They carried their
weapons with them. It was only after that an explosion was
heard from the Southern side of the place of incident. CW1 took
the head of the victim in his lap who was continuously asking
for water. By that time, two police men came running to the spot.
One of them wiped out the blood from the face of the victim.
He asked the victim 'who did this to you'? The victim answered
'Suku and others'. At the same time, a neighbouring woman
gave some water to the police men who then dripped the same
into the victim's mouth. The neighbour also gave them some
more clothes which were used for dressing the wounds of the
victim. This witness, thereafter, helped the police and other
persons to put the victim into the jeep who was then taken to
the hospital. The witness categorically stated that the accused
were known to him earlier as they were regular visitors at the
arrack shop where he worked. He stated that A1 was a Mason,
A2 Pavithran who is absconding was a carpenter, A3 was a
.bus cleaner, A4 was a coconut tree climber, A5 was a concrete
worker. The witness even stated that he had given the names
to the police at the time when the statement was recorded.
Subsequently, when the statement was again recorded, he
again gave the names. This witness was cross-examined at
length but his evidence could not be shaken.
D
E
F
G
17. The aforesaid evidence of PW2 has been reiterated
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934
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A by PW3. He also claimed to know all the accused. He also
stated that he is prepared to identify the accused by naming
them in court. He also actually identified the accused in court.
An effort was made to attack the character of this witness. It
was sought to be projected that he was a BJP sympathizer.
B The aforesaid suggestion was stoutly denied by the witness.
c
He, however, admitted that after he had become a prosecution
witness in this case, a false case had been registered against
him which is pending. In the aforesaid case, false allegations
of burning the CPI (M) office had been made.
18. In addition to the aforesaid witness, the High Court
noticed that PW4, the neighbour, had also reached the scene
of the assault. This witness also stated that the deceased in
reply to a question of the policemen stated while groaning with
pain, that 'Suku and others' were the assailants. This witness
D also accompanied the victim to the hospital in the jeep. He
confirmed that the deceased was facing assassination threats
after the murder of Mamman Vasu at Checkli: He further
deposed that he had seen in the newspaper that Marxist
people had gone on Satyagraha in their office at Checkli
E demanding inclusion of the deceased as an accused in the
Mamman Vasu murder case. The witness further stated that
in a public meeting he had heard that they will assassinate the
deceased. The relevant part of the deposition which has been
reproduced by the High Court in its judgment is as under :-
F
G
H
"I saw in the news paper, a report of hunger strike by
Marxist party people in Checkli asking to make
Chandrettan as an accused in Mamman Murder Case.
Like wise I am told that there was speech in public
meeting of CPl(M) that Chandrettan would be killed."
In his cross-examination, he stated that he is a BJP candidate
and deceased was Kannur District Secretary of BJP. He also
stated that he had told the doctor that he had seen the
deceased lying on the road with injuries all over his body.
MYLADIMMAL SURENDRAN & ORS. v. STATE OF
935
KERALA [SURINDER SINGH NIJJAR, J.]
19. The High Court took notice of the evidence of another
A
important witness PW?, who was posted in the Police Picket
near the house of the deceased. He stated that they had gone
to the scene of the crime when they were informed by some
workmen that somebody had been stabbed. When they
reached the place of incident, they saw the deceased was lying
B
covered with blood in the lap of his father CW1. This witness
stated that he had asked the victim, the names of the assailants.
In reply the victim had given the name which he was not able
to understand. He, however, stated that the victim was
conscious at that time.
c
20. With the aforesaid consistent eye-witness account of
three witnesses together with the evidence of the witnesses for
the period immediately after the incident, in our opinion, it would
be well-nigh impossible to disturb the concurrent conclusions
0
reached by the trial court and the High Court.
21. In this case, unfortunately, the author of the first
information statement passed away before the trial. He was
none other than the unfortunate father of the victim. In the first
information statement which has been converted into a FIR, he
E
has categorically stated that on hearing the screams of the
daughter-in-law, he ran back towards the place where he had
met his son and daughter-in-law. He saw that the motorcycle
has been abandoned in the road. His son was running towards
the house and he was being chased by five to eight persons.
F
They were hacking his son with weapons like sword. When he
yelled for help, the accused Arayakkamdy Sukumaran @ Suku
hacked forcefully on the back of the deceased with a sword like
weapon in his hand and ran away. After narrating the entire
sequence as to how the victim was brought to the hospital he
G
had stated that : -
"Chandran is the District Secretary of BJP. Sugu and
others are communists. Politically they are inimical to
Chandran. They hacked Chandran to death out of this
political animosity. Necessary action may be taken in this
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936
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A
respect. The place of occurrence is within the limits of the
Panoor Police station."
The High Court, in our opinion, correctly observed that the
statement could not be considered as a substantive piece of
8
evidence.
22. The High Court also accepted that the dying declaration
in this case may not be sufficient for conviction of the accused.
It can, however, be considered for corroboration of the
evidence of other witnesses. It has been noticed earlier that
C
PW2 and PW3 had categorically stated that the deceased even
though badly injured had stated that the assailants were Suku
and others. The High Court was also cautious to ensure that
the injured was in a fit state to make the dying declaration. It,
therefore, examined the evidence of the doctor who had clearly
D
stated that even after being brutally injured, the deceased could
have talked for another 20 minutes.
23. The evidence given by the doctor who conducted the
post mortem,PW10, was noticed by the High Court minutely.
E
The post mortem certificate Ex.PW7 indicated the following
injuries on the deceased :-
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G
H
1.
4 c.m. x 2 c.m. gaping linear wound on upper scalp
(R) side incised.
2.
Transverse linear incised wound on top of scalp
8c.m. x 3 c.m. from (L) top parietal region to past
the midline of the middle of the scalp cutting the
bone.
3.
A slashed (RY) eyebrow hanging over the eye with
a piece of underlying bone, 7 c.m.
4.
® side of the nose is cut open and hanging (flesh}
incise 'U' shaped inverted.
5.
(L) car is transversely-sras-hed from the tragus and
MYLADIMMAL SURENDRAN & ORS. v. STATE OF
937
KERALA [SURINDER SINGH NIJJAR, J.]
through the middle of the pinna into two, 7 c.m.
A
incised wound gracing occiput bone and mastoid.
6.
13 c.m. x 6 c.m. transverse incised wound on the
neck at the level of the (L) ear lobe gracing on the
mastoid.
B
7.
On the back, (L) side below neck, gaping 7 c.m. x
5 c.m. transverse wound and its tail extends
superficially, 8 c,.m. more laterally and downward (in
L Shape).
c
8.
A linear incised wound 4 c.m. x 3 cm. just below
this wound.
9.
4. c.m. x 3 c.m. incised transverse wound 12 c.m.
below the neck:.
D
10.
2.5 c.m. long incised wound on skin over (L)
shoulder olade.
11.
Four linear slashed incised wounds on the back of
head with marks on the skull from above downwards
E
(from R to L 10 cm x 3 cm, 8 cm x 2.5 cm, 4.5 cm
x 2.5 cm and 7 cm x 6 cm.
12.
11 c.m. long x 8 c.m.