Asokan vs State Of Kerala Representing Circle ... on 23 July, 2011

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Kerala High Court

Asokan vs State Of Kerala Representing Circle ... on 23 July, 2011

Being aggrieved by the Judgment dated 23rd July 2011 rendered by the learned Additional Sessions Judge- 1, Alappuzha in Sessions Case No.653/2008, the appellants (hereinafter referred to as accused) have preferred these appeals.

2. The prosecution case in a nutshell could be stated thus:

Asokan, the 3rd accused and Mohanan, the deceased are CRA NOS. 1535, 1636 & 1854/2011 2 direct brothers. Ajayan, the 2nd accused is the brother-in- law of Muraleedharan, the 4th accused. Shibu the 1st accused is the brother-in-law of the 2nd accused. The 3rd accused, while working at Bangalore had entrusted his property to the deceased to run a chapra (a shed used to make coir) and when he demanded it back on his return the deceased refused to do so. Hence a civil suit was filed. Because of the civil dispute pending between them they were on inimical terms with each other. The 4th accused was also entertaining enmity towards the deceased, as the deceased had questioned him about the allegation of misappropriation of funds of the family temple. Due to the enmity of the 3rd and the 4th accused towards the deceased, they hatched a criminal conspiracy with the other accused to finish off Mohanan, and in pursuance of the said criminal conspiracy, the 1st and the 2nd accused trespassed into the residential compound of the deceased at 6 p.m. on CRA NOS. 1535, 1636 & 1854/2011 3 17.1.2005 with deadly weapons and attacked him and intentionally caused his death. When PW2, the wife of the deceased Mohanan and PW1, his son, intervened to rescue him, the 1st and the 2nd accused had also inflicted injuries on them. The 2nd accused had stabbed on the abdomen of the deceased with a knife and had beaten him on his head with a wooden log and caused grievous injuries to him.

Though he was rushed to the hospital, he succumbed to injuries. The 1st accused had also hacked PW2, the wife of the deceased, with an iron bar and inflicted injuries on PW1, the son of the deceased, when they tried to intervene to save the deceased from the hands of the accused.

3. The accused were charged and tried for offences punishable under sections 120B, 109, 448, 323, 324, 326, 307 and 302 read with section 34 of the Indian Penal Code (for short, hereinafter referred to as ' IPC').

4. The prosecution examined 19 witnesses to prove the CRA NOS. 1535, 1636 & 1854/2011 4 case. Exts.P1 to P18, Exts.X1 and X2 and C1 were also marked. MOs.1 to 12 were identified. On the defence side, DW1 and DW2 were examined and Exts.D1 to D3 were marked.

5. The learned Additional Sessions Judge, on a scrutiny of the evidence on record and after analysing the rival contentions, convicted the 1st and the 2nd accused for the offences under sections 448, 324, 326 and 302 read with section 34 of IPC. They were sentenced to undergo simple imprisonment for three months for the offence under section 448 of IPC, rigorous imprisonment for one year under section 324 IPC, rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month under section 326 IPC and imprisonment for life and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for two months for the offence under section 302 read with section 34 IPC. CRA NOS. 1535, 1636 & 1854/2011 5 The 3rd and 4th accused were convicted for the offence under section 302 read with section 120B IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default to undergo rigorous imprisonment for two months. The sentences were ordered to run concurrently.

6. The learned senior counsel appearing for the accused contended that, the evidence of the eye-witnesses and the injured are not believable and also that the conviction entered against all the accused on the basis of the defective investigation are liable to be set aside. On the other hand, the learned Public Prosecutor would argue that the prosecution has proved the case beyond any reasonable doubt, against all the accused and therefore the conviction and sentence are only to be confirmed.

7. We have carefully considered the rival contentions advanced by the learned Senior counsel for the accused as CRA NOS. 1535, 1636 & 1854/2011 6 well by the learned Public Prosecutor and perused the impugned judgment and the materials on record.

8. Before adverting to the evidence adduced, it would be expedient to notice and appreciate the plea of the defence in the case. The version of the accused is that on the evening of 17.1.2005, the 1st and the 2nd accused had gone to the residence of the 3rd accused who is residing near to the residence of the deceased to have a compromise talk with the deceased regarding the dispute pending between him and the 3rd accused. When they reached near the small bridge (slab) leading to the house of the deceased as well to the house of the 3rd accused, the deceased with his wife and son (PW1 and PW2) abused them and PW1 hacked them with a sword and caused injuries to them. When they tried to defend, there arose a scuffle and in the scuffle the deceased also sustained injuries. A case was also registered as Crime No 30/2005 (Ext.X1) on the basis of the CRA NOS. 1535, 1636 & 1854/2011 7 information given by the 1st accused while undergoing treatment at the Medical College Hospital, Alappuzha. They examined DW2, the Doctor who treated them. Exts.D2 and D3 are the wound certificates of the 1st and the 2nd accused, recorded at the time of their admission at that hospital.

9. PWs.1 and 2 are the injured in the case. Mohanan, the deceased is the father of PW1 and the husband of PW2. Ext P1(a) FIR was registered by PW16, the SI of Police, Cherthala on 17.1.2005 at about 9.30 p.m as Crime No.29/2005, based on Ext.P1 statement given by PW1. The FI statement reveals that on 17.1.2005 at about 6.30 p.m while PW1, who was a college student, was sitting at his residence after his college, heard the hue and cry of his parents, (the deceased and PW2) from the southern side of his residential house. He immediately rushed to the spot and when he reached there, he saw the 1st and 2nd accused grappling with his father on the ground and fisting him. CRA NOS. 1535, 1636 & 1854/2011 8 When PW2, his mother intervened, the 1st accused had hacked her with a sword (Vadival) causing injury on her nose. On seeing this Mohanan, the deceased, tried to catch hold of the 1st accused and then the 2nd accused had taken a knife from his waist and stabbed on the deceased on his stomach causing deep injury. On receiving the stab injury he fell down and on seeing this PW1 tried to block the 1st and 2nd accused from inflicting further injuries on the deceased. Then, the 2nd accused wielded the sword causing grievous injuries on his left hand (PW1). His brother, Kailash had also rushed to save them from the clutches of the 1st and 2nd accused. At that time, the 3rd and 4th accused were standing near the slab. But when neighbours rushed to the spot hearing the commotion, the accused fled from the scene with the weapons. The people gathered there immediately shifted his father to the hospital. But the Doctor on examination informed that he died due to the CRA NOS. 1535, 1636 & 1854/2011 9 gravity of the injuries sustained by him. In the FI Statement, PW1 had stated that the 1st accused used a sword to inflict the injuries and the 2nd accused used a knife and he could identify both the weapons. According to him, his father's brother Asokan, who is the 3rd accused, is on inimical terms with his father due to the property dispute and Asokan was present along with Murali, the 4th accused, near the spot at the time of the incident, and they together conspired with the other accused to attack the deceased. So, PW1, who sustained injuries in the incident along with his deceased father and mother, had given the statement that the weapons used by the 1st and 2nd second accused are a sword and a knife. In Ext P1, FIS he has not spoken about any other weapons as used by the accused.

10. But, when PW1 was examined before the court, he had a different version especially in the matter of the weapons alleged to have been used by the assailants at the CRA NOS. 1535, 1636 & 1854/2011 10 time of the occurrence. He deposed that the incident has taken place on the southern side of the shed (chapra) near his residential house. According to him at about 6.30 p.m. while he was standing near the front door of his house, he heard the hue and cry of his parents and he rushed to the spot and saw the 1st and 2nd accused hitting on his father after pushing him down and his mother trying to obstruct them from assaulting him. Then, the 1st accused had inflicted an injury with MO2, iron bar on her face and she had bleeding on receiving the blow. Then the deceased got up from the floor and tried to block the accused from inflicting injuries on his mother. Immediately the 2nd accused had stabbed him on the right side of his stomach causing deep injury and on receiving the same he fell down. He would further say that when he rushed to save his parents, the 1st accused wielded the iron bar towards him and it caused an injury on his left hand. He further deposed CRA NOS. 1535, 1636 & 1854/2011 11 that his father when tried to get up, the 2nd accused had beaten him with a wooden log on his head and it caused a deep and bleeding injury on his head. On seeing the incident his brother (PW4) as well one Aswathy (PW3) rushed to the scene and then the accused left the place with the weapons by riding on a scooter which was parked near the bridge (slab) leading to his house. He has further deposed that Asokan, the 3rd accused and Murali, the 4th accused, were standing near the bridge and they also left immediately. He had identified MO1 as the knife used by the 2nd accused to inflict the stab injury on his father and the iron bar as MO2 used by the 1st accused to inflict injuries. According to him, the 2nd accused had struck on the head of the deceased with MO3 wooden log. So he has identified MO1 knife, M02 iron bar and MO3, wooden log as the weapons used by the 1st and 2nd accused to inflict injuries. He had spoken about the enmity of the 3rd accused towards his father due to the CRA NOS. 1535, 1636 & 1854/2011 12 property dispute pending between them. He had also deposed that the 4th accused had misappropriated the donations received to the family temple and it was questioned by his father. So the 4th accused was also having enmity towards his father. Therefore, they have conspired together and as a result of the criminal conspiracy hatched between them they have attacked the deceased to murder him, is the testimony of PW1.

11. PW14, the Assistant Professor in the Department of Forensic Medicine had conducted autopsy on the body of the deceased and Ext.P9 is the postmortem certificate. The ante-mortem injuries noted by PW14 in Ext.P9 are the following.

"1. Incised looking lacerated wound 5.5x1 cm bone deep vertical on right side of top of head 12 cm above the ear. The front upper end was 16 cm above the eyebrow underneath the scalp showed confusion 5x3 cms.

2. Incised looking lacerated wound 6x1 cm bone CRA NOS. 1535, 1636 & 1854/2011 13 deep vertical on top of head 8cm above ear and 4 cm outer midline underneath scalp showed contusion 6x3 cm. Skull was intact, brain 1250 gm was congested covering were intact.

3. Abrasion 1.5x0.4 cm transverse on left side of forehead 2 cm above eyebrow and 4 cm out of the midline.

4. Incised wound 1.5x0.4x0.2 cm obligue on inner aspect of right hand 1cm above root of little finger.

5. Incised wound 0.5x0.1x0.2 cm obligue on inner aspect of right hand vertical 1 cm above root of middle finger.

6. Incised penetrating wound 2.6x1 cm on right side of upper abdomen oblique 23 cm below armpit with anterior axillary line. The sharply cut front lower end was 18 cm out of the midline. The outer back split and was 20 cm outer to midline. The wound entered the abdominal cavity by cutting through the 9th intercostal space and 10th rib. It pierced the diaphragm and right lobe of liver entry wound 3.5x1 cm track 6.1x1.5 cm, exit wound 6x1 cm and entered by marking a cut 1x1 cm the right border of inferior venacava. The wound was directed backward downward and to the left for a depth of 10.5 cms. Abdominal cavity contained 1.7 litre blood with clots."

CRA NOS. 1535, 1636 & 1854/2011 14

12. PW14 had opined that the death of the deceased was due to the injury sustained on the abdomen (injury No.6) and that could be caused by MO1 knife. So the death of the deceased was due to the fatal stab injury sustained by him is evident.

13. PW2, the wife of the deceased, who is also an injured, had deposed that, while she was engaged in making of coir, the 1st and the 2nd accused came towards her husband, who was standing nearby, and they have pushed him down and hit him when he fell down on the ground. On seeing this she rushed to them. Immediately the 1st accused had hacked her with an iron bar causing injury to her nose. On seeing this her husband caught hold of him and then the 2nd accused had stabbed him with a knife. On hearing her hue and cry, PW1 rushed to save the deceased, but the 1st accused had hacked him also causing injuries on CRA NOS. 1535, 1636 & 1854/2011 15 his left hand. The 2nd accused had also beaten the deceased with a wooden log causing injuries on his head. At that time, PW1, in order to save his father from the assailants had wielded a wooden log which hit on the body of the accused. By that time her neighbour Aswathy (PW3) and PW4, her youngest son, rushed to the scene and then the 1st and 2nd accused left the place with the iron bar, knife and the wooden log. Thereafter the neighbors who assembled there rushed her husband to the hospital along with her. They were taken to the hospital at Cherthala, from where, they were referred to the Medical College Hospital. But the doctor declared her husband as dead, after examination. She also deposed that the 3rd and the 4th accused were standing near the scene when her husband was attacked by the 1st and 2nd accused. She too identified MO1 knife, MO2 iron bar and MO3 wooden log, as the weapons used by the accused.

14. PW3 is an eye witness to the incident. She is a CRA NOS. 1535, 1636 & 1854/2011 16 neighbour of the deceased. According to her, at 6.30 p.m. on 17.1.2005, while she was standing in front of her kitchen, she heard a hue and cry from the residential house of the deceased. When she rushed to the spot she saw the scuffle of the 1st and 2nd accused with the deceased and while PW2 was trying to save the deceased from their hands, the 1st accused hacked her with an iron bar which caused injuries on her face and nose. Then, the 2nd accused stabbed the deceased with a knife on the right side of his abdomen causing deep injury. She would further say that the 2nd accused had beaten the deceased with a wooden log on his head. Thereafter the accused fled from the scene in their scooter with the weapons. According to her, the accused conspired together and attacked the deceased due to their enmity towards him.

15. PW4 is another eye witness examined by the prosecution. He is the son of the deceased. According to CRA NOS. 1535, 1636 & 1854/2011 17 him, the 1st and 2nd accused had a scuffle with his father and when his mother tried to save him from their hands, she was hacked with an iron bar and the 2nd accused had stabbed the deceased on the right side of his abdomen. When PW1 rushed to the scene, he was also hacked with an iron bar by the 1st accused. He has further deposed that his father was also beaten with a wooden log on his head causing grievous injuries. So according to PW4, his father, mother as well his brother sustained injuries in the attack by the 1st and the 2nd accused. But he has no case that he had sustained any injury in the incident though he intervened to rescue his father. MO.1 knife, MO.2 iron bar and MO.3 wooden log were identified by him also. But he too has no case that the deceased was hacked with a sword as spoken to by PW1 in his F.I. Statement .

16. The prosecution mainly relied on the evidence of PW1 to PW4 to prove the alleged motive as well the CRA NOS. 1535, 1636 & 1854/2011 18 incident. All these witnesses have identified MO.1 to MO.3 as the weapons used by the 1st and the 2nd accused, though their evidence does not corroborate each other in all material particulars. Before going into details of the recovery of the weapons as well the other details relied on by the prosecution, it is pertinent to note that, the prosecution case is that the 1st and the 2nd accused had attacked the deceased, PW1 and PW2, in pursuance of a criminal conspiracy hatched between them. The motive alleged by the prosecution is the property dispute existed between the deceased and the 3rd accused, his brother, and the alleged enmity of the 4th accused for having questioned him by the deceased about the allegation of misappropriation of the funds collected as donation in the family temple. The accused have denied the alleged enmity, but admitted about pendency of the suit before the civil court. The defence version is that 3rd accused is residing CRA NOS. 1535, 1636 & 1854/2011 19 near to the residence of the deceased and the 1st and the 2nd accused came there to have a compromise talk with the deceased regarding the dispute. But they were attacked by the deceased as well by PW1 with a sword and inflicted injuries on them and they were immediately admitted in the Medical College for treatment. On the basis of Ext.X2, F.I. statement of 1st accused, Ext X1 F.I.R.No.30/2015 of Cherthala Police Station was registered at about 11.45 a.m on 18.1.2005. Ext.D2 is the Wound Certificate of the 1st accused and Ext.D3 is the Wound Certificate of the 2nd accused. The doctor who treated them and issued the certificates was examined as DW2. The injuries noted in Ext.D2 Wound Certificate are:

"1. 10x2 cm. irregular wound on the back of frontal region of scalp;

2. pain and tenderness left infra axillary area."

17. Ext.D3 is the wound certificate of the 2nd accused . The injuries noted are:

CRA NOS. 1535, 1636 & 1854/2011 20

"1) 6x1 cm incised wound on right side parietal region and (2) 4 x 2cm incised wound on left side maxillary area."

DW2 examined the injured while they were brought for treatment in the Govt.Hospital Cherthala. DW2 referred them to the Medical College Hospital. Ext.X1 FIR was forwarded to the Judicial First Class Magistrate's Court, Cherthala which reached the court at 10.30 a.m. on the next day. But, whether any charge sheet has been filed in that case or not is not revealed from the prosecution records. Though the prosecution is bound to produce the details before the court, nothing is brought out regarding the registration of Ext.X1 case or about its investigation. Ext.C1 is an information supplied to the 1st accused by the Judl.1st Class Magistrate Court, Cherthala, on his application under the Right to Information Act, on 19.2.2011. Ext.C1 reveals that in Crime No. 30/2005, no final report or refer report has been filed by the investigating agency before the CRA NOS. 1535, 1636 & 1854/2011 21 court concerned. When a case was registered against the deceased and PW1, for having caused injuries to the 1st and the 2nd accused in the very same transaction, the prosecution has got a duty to place the records before the court to bring forth the real facts that transpired in the incident. No doubt, there is suppression of material facts by the prosecution.

18. In Bheru Lal and Others v. State of Rajasthan [AIR 2009 SC 3208], the Apex court held that :

"The law is now well settled that where there is a failure on the part of the prosecution witness to explain injuries on the accused caused in the same incident, implicit reliance cannot be placed on the prosecution which suppressed part of the incident."

It is further observed that if the injuries on the accused are not serious in nature, non-explanation is insignificant.

19. Relying on the above decision the learned Public Prosecutor has argued that, as the prosecution case stands proved by the unimpeachable testimony of the eye-witness CRA NOS. 1535, 1636 & 1854/2011 22 and the non-explanation of the minor injuries sustained by the accused, if any, is of no consequence. But it is significant to note that the Doctor has certified that the injuries sustained by the accused especially, the 2nd accused, are grievous injuries in nature and the injuries are on the vital parts of the body.

20. In Lakshmi Singh vs. State of Bihar [AIR 1976 SC 2263], the Supreme Court held that:

''It seems to us that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable.

CRA NOS. 1535, 1636 & 1854/2011 23

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Darsanth Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of Pws1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujara vs. Bai Fatima. Criminal Appeal No.67 of 1971 decided on March 19,1975 = (Reported in AIR 1975 Sc 1478) there may be cases where the non explanation of the injuries by CRA NOS. 1535, 1636 & 1854/2011 24 the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested. So probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."

21. In State of Rajasthan v. Madho and another [AIR 1991 SC 1065], the Apex Court observed as follows:

"If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that CRA NOS. 1535, 1636 & 1854/2011 25 having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured PW2."

22. In short, in cases like this, the non-explanation about the injuries on the accused is an important circumstance and the omission of the same assumes importance when the evidence consists of interested or inimical witnesses. Failure to explain the injuries sustained by the accused 1 and 2 in the same occurrence would show that the prosecution has not disclosed the full and true facts regarding the occurrence, transpired at the place of occurrence and it create reasonable doubt about the prosecution case. The suppression of the injuries sustained by the accused 1 and 2 shows that the origin and genesis of the occurrence was deliberately suppressed by the prosecution, especially when the accused persons have not CRA NOS. 1535, 1636 & 1854/2011 26 totally denied their presence at the place of occurrence. The medical evidence is to the effect that the injuries sustained by the accused could be caused by a sword and hence the absence to recover the same and material contradiction on the deposition of PW1 regarding the presence of a sword mentioned in his FIS, and the discrepancy in his deposition before court, could only be treated as fatal to the prosecution case. The definite case of the accused in Ext.X1 is that, they sustained injuries from the hands of PW1 with a sword. But that weapon has not been recovered, though in the F.I statement PW1 has a case that the 1st and 2nd accused had used a sword to inflict injuries on the deceased. Such being the case, the omission on the side of the prosecution to explain the injuries on the person of the 1st and 2nd accused, as well as the suppression about registration of Ext.X1 case and the failure on their part to investigate the case and to submit any final report in the CRA NOS. 1535, 1636 & 1854/2011 27 case, assumes importance.

23. It is significant to note that the prosecution has no case that the 3rd and 4th accused have got any direct involvement in inflicting the injuries on the deceased, PW1 or PW2. Ext.P10 is the scene plan prepared on the basis of Ext.P4 Scene Mahazar. It shows the location of the residential house of the deceased as well the place of occurrence. In Ext.P10, the location of a small bridge (slab) leading to the house has also been marked. This bridge is on the south western side of the place of occurrence. As mentioned earlier, the accused were charged under Section 120B, 109 and under various sections read with section 34 of IPC. The 3rd and 4th accused were convicted under section 302 read with 120B IPC. To substantiate the case of the prosecution that the accused had conspired together to attack the deceased, the prosecution had mainly relied on the evidence of PW5 and PW6, the neighbours of CRA NOS. 1535, 1636 & 1854/2011 28 the deceased. They have deposed that on 17.1.2005 at about 6.30 p.m. they had seen all the accused standing together, behind the house of the 4th accused and talking each other and making gestures, half an hour before occurrence. But they have no case that they could overhear the conversation of any of the accused persons. To prove the alleged criminal conspiracy the prosecution had not adduced any other evidence. When an offence under Section 120B of IPC is alleged, the prosecution has to prove either by direct evidence or by circumstantial evidence or by both that there was an agreement of mind to do an illegal act by the accused. It is a fact that criminal conspiracy is something that happen in secrecy and so normally direct evidence to prove conspiracy may not be available.

24. In Noor Mohd.Yusuf Momin Vs State of Maharashtra (1970( 1) SCC 696) the Apex court held that :-

CRA NOS. 1535, 1636 & 1854/2011 29

'' Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, an illegal act or an act which is not illegal, by illegal means. It differs from other offences in that mere agreement is made and offence even if no step is taken to carry out that abetment the substantive offence of criminal conspiracy with incitement and amplitude than abetment by conspiracy as contemplated by Section 107 IPC. A conspiracy from its very nature is generally hatched in secret. It is therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto.'' CRA NOS. 1535, 1636 & 1854/2011 30

25. In Saju v State of Kerala (2001 (1) SCC 378) it was held as follows ''To prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not legal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120 B it has to be proved that all the accused had the intention and they had agreed to commit the crime. Conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is also not necessary that each member to a conspiracy must know all the details of the conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew was leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established."

CRA NOS. 1535, 1636 & 1854/2011 31

26. It is difficult to believe the evidence of PWs.5 and 6 that by gestures it was revealed to them that the accused had hatched a criminal conspiracy to commit murder of the deceased. What sort of gestures were shown by the accused were not spoken to by these witnesses. Moreover, it is quite unbelievable to accept the version of these witnesses that after hatching conspiracy, the 3rd and 4th accused stood near the place of the incident. In this backdrop, we have no hesitation to conclude that the burden to prove the criminal conspiracy, has not been discharged by the prosecution by adducing affirmative evidence. It is pertinent to note that no overt acts have been attributed against the 3rd and the 4th accused. There is also no case that they were having any weapon at the time of the alleged incident.

27. It is to be noted that the motive alleged is the pendency of the civil suit as well the alleged misappropriation of funds received as donation to the CRA NOS. 1535, 1636 & 1854/2011 32 family temple by the 4th accused. PW17, who investigated the case, has deposed that though there was such an allegation, further details have not been collected by him and he did not go deep into that allegation to verify whether the motive alleged is true or not?. Here, it is clearly admitted by the accused that a civil suit is pending between the deceased as well the 3rd accused, as the deceased failed to return the property entrusted by him when he left for his employment at Bangalore. PW2 has not deposed that the accused all on a sudden had attacked the deceased. But according to her, there was a scuffle between the deceased and the 1st and the 2nd accused. But, as mentioned earlier, the prosecution did not produce any materials before the court to bring forth the entire transaction that has taken place at the place of occurrence. If the incident has taken place in the course of a scuffle or altercation, that is an important circumstance which would show the correct CRA NOS. 1535, 1636 & 1854/2011 33 picture of what had transpired at the place of occurrence. The Judicial First Class Magistrate concerned has issued Ext.C1 information under the Right to Information Act regarding the said crime, that no refer report or final report have been submitted in Crime No. 30/2005. Suppression of the wound certificates of PW1 and that of the 1st and 2nd accused, suppression of the details of the counter case registered etc. would show that the prosecution has failed in bring the true genesis and origin of the occurrence and failed to present the true version before the court. The difference in the weapon alleged to have been used by the accused as narrated by PW1 in the F.I. statement and before the court, also assumes importance. As referred above, in the F.I. statement it has been specifically stated that a sword was used by 1st and 2nd accused to hack the deceased as well PW2. When the witnesses were examined before the court, the sword had taken place of an iron CRA NOS. 1535, 1636 & 1854/2011 34 rod/reaper. It is revealed from Exts.X1, Ext.X2, D2 and D3 that the accused were attacked by PW1 with a sword. That weapon was not recovered by the investigating agency. MOs.1, 2 and 3 have been identified as used by the accused persons to inflict injuries and according to the prosecution case, the 2nd accused had stabbed the deceased with MO1 knife and had also struck on his head with MO3 wooden log. Therefore, as per the version of the witnesses the 2nd accused had used these two weapons simultaneously, so as to commit murder of the deceased and to cause injuries to PW1 and 2. In the course investigation, Ext.P4 scene Mahazar was prepared by the investigating officer on the next day of the incident. He had recovered MO4, a blood- stained lungi, MO.7 chappels, MO.10 series of blood stained sticks, MO.8 hammer (made of wood) used to make coir, MO9 blood stained leaves, MO5 a steel plate etc from the scene of occurrence. But none of those objects were CRA NOS. 1535, 1636 & 1854/2011 35 forwarded for chemical examination, though described as collected from the place of occurrence and were having blood stains. All the blood stained objects were not forwarded for examination in the medical examination Laboratory. The failure of the prosecution to forward the blood stained objects to the Forensic Laboratory also assumes importance. Ext.P17 result of examination confirms that blood stains found in MO.1 to MO.3 is of 'Group O positive'. On the other hand, the blood collected by the doctor who conducted autopsy of the deceased is 'Group A'. The prosecution ought to have ascertained the blood group found in the objects seized from the place of occurrence by Ext.P4. Learned Senior Counsel for the accused would argue that the blood stain found in those items may be that of the accused persons who sustained injuries from the deceased as well from PW1 and that is the reason for not forwarding those items for examination in the Laboratory. Blood- CRA NOS. 1535, 1636 & 1854/2011 36 stained earth was also there,as deposed by the witnesses. But, the same was not collected by the prosecution and forwarded for examination. It is held in Lakshmi Singh 's case (supra) that if there is departure from the procedure to collect blood-stained earth from the place of occurrence and sent to chemical examiner, it indicates that that the defence version may be true. The omission or failure on the part of the prosecution and the non-explanation on the side of the prosecution for not forwarding the blood stained items cannot be justified and it can only be presumed that the attempt of the prosecution was to suppress the correct picture of what, transpired at the place of occurrence, which would render doubt regarding the genesis and origin of the prosecution case. It is a very serious lapse on the part of the investigating agency, to say the least. In short, the circumstances available would show that the prosecution has suppressed some vital materials from the court and the CRA NOS. 1535, 1636 & 1854/2011 37 failure of the prosecution to bring forth the details regarding the counter case which has been registered immediately after the incident is definitely a serious error.

28. PW17, the investigating officer has effected the recovery of MOs.1 to 3 on the basis of the alleged disclosure statement of the 1st and 2nd accused. Ext.P6 is the relevant portion marked on the side of the prosecution . On going through Ext.P6(a) it could be seen that the recovery was effected on the basis of disclosure statement of the 1st accused alone. But, when PW17 was examined he had deviated from the document relied on by him. As mentioned earlier, the failure of the prosecution in not examining all those material objects assume importance to discredit the entire prosecution version and probabilise the case of the defence that the origin and genesis of the occurrence had been deliberately suppressed and the prosecution has not come out with a true version of the occurrence. It is well CRA NOS. 1535, 1636 & 1854/2011 38 settled that when suspicion is created about the genesis and origin of the incident laid down by the prosecution, definitely the benefit should be given to the accused.

29. The learned Public Prosecutor relies of the decisions in Bheru Lal and Others vs. State of Rajasthan (2009 KHC 4941) and State of Karnataka vs. Yarappa Reddi (1999 KHC 618) and argued that there is nothing to doubt the credibility of the witnesses especially PW2 and PW3 to prove the prosecution case.

30. It is significant to note that, DW2, the doctor, deposed that the injuries sustained by the accused are not minor injuries. The injury sustained by the 2nd accused are two incised wounds which could be caused by a sharp edged weapon. So also,the injury sustained by the 1st accused is an injury which is an irregular one which could be caused by beating with a wooden panel. As mentioned above, case of the accused is that they have gone to the residence of the CRA NOS. 1535, 1636 & 1854/2011 39 3rd accused to have a compromise talk with the deceased, as quite often there used to be quarrel between the deceased and the 3rd accused. The 1st and 2nd accused are not total strangers to the witnesses. When they have a case that they have gone to the residence of 3rd accused and they were attacked near the road side by the deceased and PW1 and caused injuries, the non -explanation of their injuries by the prosecution is definitely a manifest and obvious defect on the side of the prosecution. The wound certificate of PW1 was also not produced, though Ext.P8 wound certificate of PW2 was produced.

31. Whether the deceased and PW1 were having weapons with them, Whether the scuffle started as spoken to by PW1 to PW3, Whether the deceased sustained injuries from the hands of PW1 as alleged by the 1st and 2nd accused, What happened to the sword alleged to have been used by A1 as seen from the FI statement of PW1, What happened CRA NOS. 1535, 1636 & 1854/2011 40 to the counter case etc, remain unanswered and unexplained, in spite of a detailed trial, throwing reasonable and serious doubt regarding the origin of the incident. Definitely there are serious laches on the part of the prosecution. It also appears that the learned Sessions Judge has not bothered to verify the records when PW19, the present SI of Cherthala was summoned to produce the record pertaining to Crime No.30/2005. When PW19 has deposed that the case was referred as mistake of fact and brought the documents for the same, the Sessions Judge ought have verified the same. The failure to do so also assumes importance in the light of Ext.C1, the reply furnished by the Magistrate Court concerned under the right to information Act. This is also a material defect which would affect the genuineness of the prosecution case.

32. The argument of the learned counsel for the accused that the genesis and the origin of the case had CRA NOS. 1535, 1636 & 1854/2011 41 been deliberately suppressed by the prosecution and it was a purposeful and deliberate act not to bring the true version before the court, appears to be with merits when evaluated the entire aspects on the basis of the above referred discussion. All these facts make the prosecution case doubtful. In the wake of these circumstances we find that the evidence of PWs1 to 3 do not inspire confidence. It is well settled that when serious doubt is created regarding the prosecution case and when there are two probabilities, the court has to favour the one which is beneficial to the accused. It is also well settled that suspicion howsoever strong cannot be a legal substitute for proof. In order to succeed, the prosecution has to establish the prosecution case positively with definite and clear evidence beyond the shadow of reasonable doubt. Here a strong and reasonable doubt has been created regarding the genesis and the origin of the incident and as to who are the aggressors of the CRA NOS. 1535, 1636 & 1854/2011 42 incident, whether the accused had inflicted injuries on the deceased in exercise of the right of private defence, etc. Hence, we are constrained to conclude that the prosecution has not brought the true and correct materials before the court. The prosecution could not adduce clear, specific and convincing evidence before the court to prove that the accused have murdered the deceased and caused injuries to PW1 and PW2 as alleged by the prosecution. To sum up, the irregularities referred above renders the version of the prosecution incredible. So, we are constrained to conclude that all the accused are entitled for an acquittal giving the benefit of doubt in their favour and the conviction and sentence of all the accused, as recorded by the learned trial court are unsustainable.

33. In the result, all the above appeals are hereby allowed. The conviction and sentence imposed against accused Nos.1 to 4 are hereby set aside. All the accused are CRA NOS. 1535, 1636 & 1854/2011 43 acquitted of the charges framed against them and they are set at liberty. They shall be released from the jail forthwith, if their continued confinement is not required in any other case.

The Registry is directed to forward the gist of this judgment to the Superintendent of the jail/jails concerned, for immediate compliance of the directions contained.

Sd/-

C.K. ABDUL REHIM JUDGE Sd/-


                                       SHIRCY V.
ks/smm                                  JUDGE


                        True copy




                              P.S. TO JUDGE

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