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Prabhavathi Amma has spent 20 Onam festivals without her son. Seven years ago when a CBI court convicted a few of the policemen responsible for his death, she had felt a modicum of closure.
This year, she watched his killers walk free.
On August 27, the Kerala High Court acquitted all five policemen convicted in the 2005 custodial death of her 26-year-old son Udayakumar. The court overturned a 2018 CBI special court verdict that had sentenced two constables to death and three senior officers to jail terms.
Police had picked up Udayakumar, a scrap shop worker, a day before the festival day of Thiruvonam in 2005. They found Rs 4,020 in his pocket. It wasn’t money he had stolen from anywhere. The money he had on him was left over from the bonus he got for Onam.
Udayakumar’s post-mortem revealed 22 injuries, including those caused by police rolling iron pipes over his body.
“There were wounds all over his body. The court had seen it. Nobody has a heart, not even the court. Ask them to kill me also, they have already killed my son, why am I left to suffer. What will I do now? Someone might have conspired,” Prabhavati Amma, now 74, told TNM.
The 2018 conviction was believed to be the first death sentence awarded to serving police officers in Kerala, a rare accountability in a custodial death case.
The High Court castigated the CBI for conducting a “flawed and tainted” investigation that, it said, violated the fundamental right of the accused to a fair trial.
“We are compelled to hold that a flawed and tainted investigation has eventually led to the failure of the prosecution case involving the gruesome death of Udayakumar. The evidence adduced before the court, if shorn of its taint and illegalities, is not sufficient to hold the accused guilty of the offence,” said the Division Bench comprising Justice Raja ViJayaraghavan and Justice KV Jayakumar.
The court observed that several witnesses were allegedly coerced into turning approvers, some even under threat, and were made to simply repeat the CBI’s version of events. Such methods, the Bench said, not only undermined the credibility of the prosecution but also stripped the case of its legitimacy.
“There are major contradictions in the testimonies of the prosecution witnesses, most of whom are approvers, accompanied by glaring investigative defects,” the court said.
Udayakumar, was taken into custody by the Fort Police on September 27, 2005, along with his friend Suresh Kumar, from Sreekanteswaram Park. Police alleged that Suresh Kumar was involved in a theft case and that money recovered from Udayakumar was stolen. Investigations revealed that he had been subjected to brutal torture—spread-eagled on a bench and beaten with an iron pipe, particularly on his thighs.
The Court held that the CBI had proceeded with further investigation in violation of earlier judicial directions and filed its final report before a magistrate who had no jurisdiction to entertain the same. Court said CBI was asked to carry out further investigation in the case which was already investigated by the Crime Branch and did not have to reinvestigate it.
The CBI filed a final report, styled as a supplementary report, before the Chief Judicial Magistrate (CJM), Ernakulam. The case had already been committed to the Additional Sessions Court (Fast Track-III), Thiruvananthapuram, and the CJM, Ernakulam, had no jurisdiction to entertain it, the court said. It emphasized that a supplementary report could only have been filed before the court where the original case was pending.
The CBI ignored the earlier committal and managed to secure a fresh committal order from the CJM, Ernakulam, leading to a de novo trial before the Special Judge, CBI, Thiruvananthapuram.
This procedure was considered a "fatal irregularity" that caused "serious prejudice to the accused" and amounted to a "failure of justice," the court said.
The CBI was also criticised for branding PW1 (Suresh Kumar), an injured eyewitness and victim, as an accomplice and subsequently turning him into an approver. The court found that PW1 did not meet the legal definition of an accomplice, as he "neither participated in the murder nor rendered any assistance to the perpetrators," making the basis for treating him as an approver "legally unsound."
The judgement said that his testimony was inconsistent, alleging at times that Udayakumar was assaulted, while elsewhere denying police involvement, and he further claimed coercion and tutoring by the CBI—casting doubt on its reliability.
Recalling the Supreme Court’s observation in Ashish Batham v. State of Madhya Pradesh, the Bench reiterated that the presumption of innocence is a cornerstone of criminal justice and that unless charges are proved beyond reasonable doubt with clear and cogent evidence, no accused can be punished merely on the basis of suspicion or the gravity of the alleged crime.
In 2005, the Crime Branch initially arrested three constables, but as several witnesses turned hostile, the accused secured bail. It was only after Udayakumar’s mother, Prabhavathi Amma, approached the Kerala High Court that the case was handed over to the CBI in 2007. The agency produced an iron pipe as the weapon of assault, and forensic experts testified that the injuries on Udayakumar’s body were consistent with such torture.
In July 2018, a CBI Special Court convicted five policemen. Constables K Jithukumar and SV Sreekumar were found guilty of murder and sentenced to death. Sub-inspector Ajith Kumar, circle inspector E K Sabu and then Assistant Commissioner of Fort Police K Haridas were convicted of conspiracy, destroying evidence and foisting a false robbery case on Udayakumar, and sentenced to three years’ imprisonment. Another accused, constable K V Soman, died during the course of the trial.
CBI special public Prosecutor KP Satheesan told TNM that they will soon file an appeal in the Supreme Court. “The CBI will never register a murder case suo motu. When the High Court feels that a trial is not proceeding properly—witnesses are turning hostile, the investigation is flawed, or there are several such concerns—the case is entrusted to the CBI. This can happen during the investigation, during the trial, after the trial, or even after the verdict,” he said.
Satheesan said when the CBI takes over a case, they follow their own procedure. “We have a designated CBI court in Ernakulam, Kerala. We cannot go to each and every court where a trial is ongoing. As per procedure, the CBI must register a fresh case when a case is entrusted to it. That is how the system works,” he said.
In this particular case, the crime was initially investigated by the local police. There were only three accused—all of them police constables, Satheesan said. The trial began, and 34 witnesses were examined. All of them were constables, and all of them turned hostile. “It was only when the victim’s mother approached the High Court that the case was handed over to the CBI,” Satheesan said.
Satheesan said after taking over, the CBI also charged the accused constables. “Within a few days of investigation, it was established that they had participated in the act in one way or another. Later, they were willing to tell the truth and turned approvers. The law allows this. They filed their declarations and gave statements favorable to the prosecution,” he said, adding that throughout the investigation and chargesheet filing, there was no issue.
“Now, some are pointing to procedural lapses, but procedural lapses cannot hinder justice. A poor man was subjected to brutal torture,” Satheesan said.