Vishal Was Scape Goat In Political Rivalry: Kerala Court While Acquitting All Accused In 2012 ABVP Leader Vishal Murder Case

The Court of the Additional Sessions Judge-III, Mavelikara, has acquitted all the accused in the case of the murder of ABVP leader Vishal, who was stabbed to death on a college campus in 2012.

The Court presided by Judge P.P Pooja has acquitted all nineteen accused, who were alleged to be associated with the Campus Front, the students' wing of the now-banned Popular Front of India (PFI). 

"Sri. Vishal took his heavenly abode at his tender age on 17.07.2012 as he was a scape goat in the political rivalry among the college students, the same is yet another episode of political murder in the campus, in Kerala", the Court at the beginning of its Judgment delivered on December 30. 

Advocates G.Priyadarshan Thampi, Navin M Easow, P.C. Noushad, Ramjith. P  and G. Harikrishnan represented the accused, while Special Public Prosecutor Prathap G Padickal appeared for the prosecution. 

Vishal, who was then 19 years old, died on July 17, 2012, in a hospital after he was stabbed on the previous day near Christian College, Chengannur, where a function was organised by various students' organisations to welcome new students to the college. 

Prosecution's Witnesses

Seven injured witnesses who were associated with ABVP, who claimed to be victims of the same crime, were examined by the prosecution and they supported the case of the prosecution. Out of the said six witnesses, two witnesses suffered knife injuries at the hands of the same accused. 

"On going through the evidence of PW1 to 7 it can be seen that they have deviated from their previous statements and made a coloured and stereo typed version regarding the alleged occurrence. Their testimony shows that there was no resistance on the part of ABVP workers though they were numbering 20 when they were attacked by the alleged campus front workers who were numbering 13. PW1 to 7 have no case that there was any commotion between the two groups which is highly improbable in the facts and circumstances of the case. So the non citing of any of the independent witnesses who reached the place of occurrence leads to the only conclusion that the prosecution has withheld the real witnesses to the occurrence to present an one sided version of the ABVP workers. The same is sufficient to draw adverse inference against the prosecution in terms of Section 114(g) of the Indian Evidence Act (Sec.117(g) of the B.SA). The deviations made by PW1 to 7 from their previous statements also make them unreliable", the Court held, discarding their evidence. 

The Court held that their evidence is far from convincing and that they did not have the quality of "sterling witnesses" to be relied on.

Two witnesses, PW12, who was the District Committee member of the Kerala Students' Union (KSU) and PW13, who was the Unit Secretary of SFI in Christian College, did not support the case of the prosecution and were declared hostile. The Court noted that the evidence of PW12 is of no use to the prosecution and the same is "somewhat favourable to the defence".

FIS and registration of FIR

The Court found that deviations made by the prosecution from the earliest version contained in the first information statement (FIS) made the entire prosecution case unreliable.

The Court held that the FIS and the FIR were ante-dated. "So, there is merit in the contention of the defence that Ext.P1 and Ext.P52 were anti-timed and it may be antedated as well", the Court held. 

"However the deviation made from the FIS which are of significant nature creates doubt regarding the genuineness of the prosecution case. As per Ext.P1(FIS) the names of A1 and A2 alone are stated. It was stated in Ext.P1 that PW1, 2 and the deceased were stabbed by three persons presumably with 3 weapons. Likewise it was stated that the assailants were armed with swords, swordstick and daggers. No identification marks of any of the other assailants were mentioned in Ext.P1 and there was no allegation that a helmet was also used as a weapon of attack by a tall obese person to attack PW2 and he brandished the helmet to prevent the witnesses from approaching the assailants. The motive as stated in Ext.P1 was the organizational rivalry and there was no allegation that the assailants had enmity towards the deceased as he participated in the campaign against the alleged “Love Jihad’ by the deceased. The deviation from the averment in Ext.P1 creates doubt regarding the sanctity of the first information and the merit of the case of the prosecution which was built upon Ext.P1," the Court held. 

Recovery of ID of Accused 

The prosecution claimed that the Electoral ID of the Accused No. 3, who was accused of stabbing Vishal, was recovered from the spot of the occurrence of the crime by the Police. The accused contended that the same was taken by Police from the residence of the Accused No. 3 during a search. 

"The non-examination of the searching officer strengthen the contention of the accused that he was not examined to suppress the real fact that MO8 was taken away from the house of A3 on 16.07.2012", the Court found. 

The Court held that the statement of PW3 that he saw the recovery of the said ID from the spot was an embellishment from his previous statement, which cannot be relied on to give corroboration to the evidence of the Police regarding the recovery. "The delay in producing MO8 before the court also creates doubt regarding the recovery of MO8 from the scene of occurrence", the Court further held. 

Recovery of Weapons

The Court doubted the recovery of the alleged murder weapon, a knife. 

"It appears that PW8 was planted as a witness to the recovery but without following the procedure contemplated by law. So, the evidence of PW8 also will not improve the recovery of MO1 to be relied on. The identification of A3 by PW8 is also of no significance. It appears that PW8 was present in the court on the previous posting date which shows his interest towards the prosecution", the Court found.

The Court also held, "Regarding the identification of MO1, PW1 to PW7 deposed that MO1 was the weapon of attack which was allegedly used by A3. The same is a deviation from Ext.P1 (FIS) in which daggers were used by three persons to stab PW1, 2 and the deceased. MO1 is not a dagger and is a knife having sharp edge on one side having a length of 27 cm. The previous statements of PW1 to PW7 show that they gave statements to the police that a double edged knife was used by A3 to stab PW1 and 2 and the deceased". 

Identification of Accused By Witnesses

The Court found that the identification of the accused by six of the witnesses is also doubtful, as they were shown the photographs of the accused after their arrest. 

"It is the admitted case of the prosecution and the witnesses that the accused and their photographs were shown to them. The prosecution has no case that any attempt was made to conduct a TIP to confirm the identity of the other accused who were not the students in the college. Since A3 to A5 and A8 to A12 were not known to the witnesses previously, the prosecution should have conducted the TIP to give corroboration to the identification made before the court. So, the identification of the above accused cannot be relied on...", the Court held. 

Motive

It was the case of the prosecution that Vishal campaigned against ‘Love Jihad’ in his locality, and for that reason, the Campus Front workers had enmity towards him. 

The accused argued that Vishal never came to the college previously for the activities of the ABVP, with whom they had no enmity. They contended that the ABVP workers who were not the students of the college, came to the college to object to the activities of the Campus Front, and they unleashed violence against the Campus Front workers and the deceased sustained injuries in the commotion accidentally.

"Even if it is admitted that the deceased campaigned against love jihad, how it will cause enmity for the accused towards him is not made out. The prosecution has no case that the campus front has an ideology supporting love jihad and they were associated with such activities. The organiszational enmity towards the deceased is also not made out from the testimony of any other witnesses. If the campus front had no unit in the college the campus front workers and outsiders associated with that organization should not have had any enmity towards the deceased in particular", the Court found. 

Medical Evidence Compared with Ocular Evidence 

The Court held that the failure on the part of the prosecution to bring out through the evidence of Casuality Medical Officer in Medical College Hospital that the injury noted in Ext.P49 can be caused by the MO1 knife is fatal to the case of the prosecution.

Vishal had told one of the witnesses on his way to the hospital that his parents should be told that the injury was on account of an accidental fall and not stabbing. Another witness claimed that he was told by Vishal, while in the ambulance, that his brother should be informed that he was stabbed by Campus Front workers. 

However, the Court disbelieved the statement of the said witness. 

"Eventhough PW11 has stated that the deceased talked to him and over the mobile phone to Vipin he had no such case in his statement given to the police at the first instance. If such a statement was made by the deceased and PW11 had the alleged conversation he should have disclosed the same to the police at the time of the inquest or immediately thereafter. The version of the prosecution is that PW11 waited for one month to give such a vital information to the police. The above conduct of PW11 itself is sufficient to hold that his above version and the story of the prosecution is a cooked up one. There is no medical evidence to show that the deceased was capable of making a phone call at the relevant time as his pulse rate and BP was very low when he was brought to the casuality of the Taluk Hospital, Chengannur", the Court held. 

Though the Court arrived at a conclusion that the injury could only have been due to stabbing by a knife and not a fall, the Court held, "So, the only probability is that the deceased sustained stab injury in an attack. If the deceased was stabbed by the campus front workers on account of previous enmity he should have stated that fact to the doctor. Why the deceased did not state the same to the doctor create doubt regarding the motive, the cause of the injury and the person who inflicted the same. It may be true that the deceased might have thought that the injury might not have been fatal and he was not in expectation of death. That may be the reason why he gave false statement regarding the cause of the injury to the doctor...... So, the above conduct of the deceased also creates doubt regarding the genuineness of the case of the prosecution regarding cause of the injury sustained by the deceased".

Conclusion  

The Court acquitted all the accused. 

"In view of the findings on points 1 to 15, the accused are found not guilty for the offences punishable u/s 143, 144, 147, 148, 323, 324, 342, 307, 302 and 212 r/w section 149 and Section 120B of IPC and they are acquitted of the said offences u/s 235(1) of Cr.P.C. The accused are set at liberty and the bail bonds executed by them stand cancelled. MOs are ordered to be preserved for the trial against the juvenile in conflict with law", the Court ordered, as one of the accused was a minor at the time of the incident. 

Cause Title: State of Kerala v. Nassim & Ors. (Sessions Case No.545/2017)

Click here to read/download Judgment