Shinoj vs State Of Kerala on 12 November, 2019

[Cites 32, Cited by 3]

Kerala High Court

Shinoj vs State Of Kerala on 12 November, 2019

Equivalent citations: AIRONLINE 2019 KER 600, 2019 (4) KLT SN 81 (KER)

Instances of bigotry resulting in assassination of political opponents are legion in this State. But this case unfolds a different saga. Internal dissensions and factional feud among members of the youth wing of an old political party, that too founded on non-violence, are the root cause for a murder in the day light. Long and short of the prosecution case is that deceased Madhu was an active worker of Youth Congress, an organization under Indian National Congress. 1st accused Prem is yet another worker in the same party. In April 2013, there were bickerings between them and their supporters in connection with the election of office bearers to the Youth Congress Mandalam Committee, Ayyanthole. It is alleged that deceased Madhu and his associates had attacked 1st accused Prem in April, 2013. Crl.Appeal Nos.570, 572,649, 651 & 7 656 of 2015 Later, deceased Madhu became the Secretary of the Youth Congress Unit, Ayyanthole. It has come out through evidence that deceased Madhu along with others had committed a crime wherein the 1st accused sustained injuries. On account of bitter hostility nurtured by each against the other, all the accused conspired together on various occasions to do away with Madhu. Finally on 31.05.2013 the accused persons gathered in a field adjacent to the residence of PW4 Sathi and hatched the final plan. There is an incongruity in the prosecution case regarding time of their meeting on that date, which we shall consider later. Again on 01.06.2013 at 8.10 a.m., accused Nos.2 and 7 met the 1st accused in front of his house. It is also alleged that accused Nos.1 and 2 abetted accused Nos.3 to 6 to commit the murder and for that the 1st accused paid money to them. On 01.06.2013 at about 9.35 a.m., accused Nos.3 to 6, in furtherance of their common intention to kill Madhu, came to the precincts of Karthiyani Temple, Ayyanthole in an autorickshaw, driven by the 5th accused, knowing that Madhu had gone to the temple with his wife PW2. Autorickshaw driven by the 5th accused knocked Madhu down and immediately thereafter accused 3, 4 and 6 jumped out of the autorickshaw. 3rd accused attacked the deceased with a sword inflicting cut injuries on his head and other vital parts. When Madhu fell down, 4 th accused pounced on him and sat on his body. Thereafter he held Madhu by neck and stabbed him with a knife incessantly on chest and other vital parts. Madhu died at about 10.25 a.m. on the same day. After committing the crime, Crl.Appeal Nos.570, 572,649, 651 & 8 656 of 2015 accused Nos.3 to 6 fled from the crime scene in the same autorickshaw.

2. PW1 Sajeesh, nephew of the deceased, on knowing about the incident reached West Fort Hospital, Thrissur, to which the deceased was admitted and on finding the deceased dead, he went to the police station and furnished Ext.P1 first information statement (FIS). Investigation then commenced and it was completed without much delay. Finally, on closing the investigation, a charge was laid before the Magistrate concerned. And the Magistrate, on finding that the case was exclusively triable by a Court of Sessions, committed it to the Sessions Court, Thrissur. Learned Additional Sessions Judge framed charges against the accused persons. After examining 30 witnesses and marking 96 documents on the side of the prosecution and marking 12 documents on the side of the defence and also considering MOs.1 to 8, he found all the accused persons guilty of various offences. After convicting accused Nos.1 to 7 for offences of criminal conspiracy to commit murder under Sections 120B of 302 of the Indian Penal Code (in short, "IPC"), imprisonment for life and fine of `30,000/- were imposed on each of them. Likewise, accused Nos.1 and 2 were sentenced to undergo imprisonment for life and pay fine of `30,000/- for abetment of murder under Section 109 of Section 302 IPC. Accused Nos.3 to 6 were again sentenced to undergo imprisonment for life and pay fine of `50,000/- under Section 302 read with Section 34 IPC. Accused 3 to 6 were also Crl.Appeal Nos.570, 572,649, 651 & 9 656 of 2015 sentenced to undergo rigorous imprisonment for five years and pay fine of `10,000/- under Section 201 IPC.

3. Crl.Appeal No.656 of 2015 is preferred by the 1 st accused. Crl.Appeal No.651 of 2015 is filed by accused Nos.2 and 6. Crl.Appeal No.570 of 2015 is filed by accused Nos.3 and 4. Crl.Appeal No.572 of 2015 is preferred by the 5th accused. Crl.Appeal No.649 of 2015 is filed by the 7 th accused. Parties are hereinafter referred to in their ranks in the Sessions Case.

4. Heard Sri.S.Rajeev, Sri.V.T.Raghunath, Sri.B.Ranjith Marar and Sri.Nandagopal S.Kurup, learned counsel appearing for the appellants and Sri.Alex M.Thombra, learned Public Prosecutor.

5. Deceased Madhu indisputably was a victim of homicide. PW19 was the Chief Medical Officer in West Fort Hospital, Thrissur, who examined the deceased on 01.06.2013 immediately after the incident. Ext.P28 is the medical record folder wherein death summary is also enclosed. It shows that deceased Madhu sustained multiple incised wounds on front of neck, sternum, shoulder, breast and other vital parts of body. PW19 deposed on seeing MO1 knife and MO2 sword that the injuries noted on Ext.P28 could have been caused with those weapons. According to him, the deceased was brought to the hospital dead.

6. PW30, the then Circle Inspector of Police who conducted the Crl.Appeal Nos.570, 572,649, 651 & 10 656 of 2015 investigation, deposed about the formalities complied by him in the matter of inquest. Above all, unchallenged testimony of PW15 Dr.Sanjay, who conducted autopsy on the body, also shows the fact that Madhu was murdered by using lethal weapons. Ext.P17 postmortem certificate would show 10 incised wounds and 3 stab wounds along with various other injuries (total 38 wounds) indicating the indiscriminate use of sharp weapons like MOs.1 and 2.

7. Learned counsel appearing for the appellants unanimously contended that the prosecution tried to build up a case, to implicate all the accused persons in the crime, by projecting three fold contentions. Firstly, the prosecution relied on the direct testimony of some witnesses to prove the incident wherein alleged overt acts are attributed to accused 3 to 6. Secondly, the prosecution rested on certain other witnesses to establish a conspiracy to kill Madhu, said to have been hatched on the previous day and on the date of incident. Thirdly, some witnesses are cited to rope the accused in the crime by propounding a theory of abetment. According to the learned counsel for the appellants, none of the witnesses examined by the prosecution to establish either direct involvement of some accused or their involvement in the alleged conspiracy or abetment could be trusted. Learned counsel would urge that their testimony cannot be legally countenanced because they are highly interested witnesses. Moreover, their presence itself, at the time and place of the alleged incident and at the alleged place of conspiracy, is highly Crl.Appeal Nos.570, 572,649, 651 & 11 656 of 2015 suspicious. According to them, the trial court without considering the inherent improbabilities in the prosecution evidence, convicted the appellants for all the offences alleged against them.

8. It is seen from the judgment under challenge that the court below heavily relied on the testimony of PWs 2 and 3 to find that deceased Madhu was attacked on 01.06.2013 at about 9.35 a.m. on the road in front of Karthiyani Temple, Ayyanthole. For fixing the role of accused 3 to 6 in the gruesome murder, the court below mainly considered the testimony of PWs 2 and 3. Even though PW3 did not fully support the prosecution case, portions of his deposition were relied on by learned Additional Sessions Judge to find the complicity of accused 3 to 6 in the crime.

9. Learned Additional Sessions Judge placed reliance on the testimony of PWs 4 and 6 to enter a finding that accused 1 to 7 had conspired to kill the deceased and the incident on 01.06.2013 was a sequel to that conspiracy.

10. Learned Additional Sessions Judge, on evaluation of evidence, found that accused 1 and 2 had abetted other accused for perpetrating the murder.

11. According to the learned counsel for the appellants, learned Additional Sessions Judge egregiously erred in appreciating the evidence. According to them, the legal principles relevant in this case were not considered by the trial court from a proper perspective. We are aware of our Crl.Appeal Nos.570, 572,649, 651 & 12 656 of 2015 duty, as first appellate court, to reappreciate the entire evidence and apply the settled legal principles of law to the facts borne out from evidence. We shall address the three major heads under which the prosecution wanted to establish the guilt of the accused persons directly and vicariously.

12. PW1 Sajeesh, who lodged Ext.P1, FIS, admittedly did not see the incident. Statements in Ext.P1 would show that the informant is the nephew of slain Madhu. On the date of occurrence, viz., 01.06.2013, he was present at his house. At about 9.30 a.m. he received a call from his cousin Rajesh informing that accused Nos.2, 3, 4 and 6 slashed Madhu in front of Karthiyani Temple, Ayyanthole. PW1 rushed to the place of occurrence. But, by that time the injured had been taken to a hospital. He talked to PW3 Shaji Govind and others who were present there. He came to know that Madhu and his wife PW2 Jyothi had gone to the temple. Madhu came out of the temple compound and was waiting for PW2 to complete her prayers. He started talking to PW3 Shaji Govind. At that time an autorickshaw came from the northern side of the temple and it knocked Madhu down. When the autorickshaw halted, 3rd accused jumped out and hacked Madhu with a sword. He sustained injuries on neck, face and other body parts. At that time accused 2, 4 and 6 were present. In Ext.P1, PW1 has narrated the political animosity between the deceased and 1st accused. He has mentioned that in a previous incident, the 1st accused had sustained injuries allegedly at the hands of deceased Madhu. To wreak vengeance, according to him, the Crl.Appeal Nos.570, 572,649, 651 & 13 656 of 2015 accused committed the gruesome murder.

13. Although PW1 was not an eye witness, both sides referred to his deposition to substantiate their respective cases. We shall consider the material aspects deposed to by PW1. In his chief-examination, he testified in support of the recitals in Ext.P1 first information statement. He was present at the time of preparing Ext.P22 inquest report and he gave a statement to the investigating officer. According to his testimony, motive for murder was the disputes between two groups in connection with an election to the Youth Congress Committee. Learned counsel for the appellants commented on the non-examination of Rajesh (cousin of PW1), who said to have informed the incident to PW1 over phone. Pertinent aspect regarding his non-examination is that he too had no direct knowledge about the incident. PW1's evidence revealed the presence of PW3 at the place of occurrence immediately after the incident. In cross examination, it was attempted to bring out from this witness that there was no direct visibility from the side of gopuram (arch) of the temple to the place of occurrence, which, of course, he denied. Some contradictions and omissions were also attempted to be elicited. We do not find much significance to those aspects since he has no case that he witnessed the cold blooded murder. What he deposed was only on the basis of information supplied to him by his cousin Rajesh as well as PW3.

14. Most crucial witness is PW2 Jyothi. She is the wife of deceased Madhu. PW2 described the incident elaborately in the chief-examination. Crl.Appeal Nos.570, 572,649, 651 & 14 656 of 2015 Deceased Madhu along with PW2 resided in a house very close to Karthiyani Temple, Ayyanthole and it is not a disputed fact. PW2 was working in a co- operative Bank at the material time. It is her definite version that the incident happened on 01.06.2013 at about 9.30 a.m. on a road in front of Karthiyani Temple, Ayyanthole. Deceased Madhu was the vice president of the temple committee at the relevant time. It was their usual practice to visit the temple in the morning before they started the day's work. As usual, on 01.06.2013 also, they went to the temple and parked their car. It is revealed from the records that the road in front of the temple lies on a higher level. Courtyard of the temple lies in a lower level. When they entered the temple through the nadappura, deceased's mobile phone started ringing. He went out by asking PW2 to complete circumambulation, which she wanted to do. After completing the circumambulation, she immediately came towards the road. At that time an autorickshaw came from the northern side and knocked down deceased Madhu who was standing close to deepasthambham. While falling down, he tried, but could not hold on to it. When he fell down, 3 rd accused jumped out of the autorickshaw and inflicted a cut injury on Madhu's head by using a sword. He inflicted another injury on the victim's neck also. At that time, accused Nos.4 and 6 came out of the autorickshaw. While Madhu was lying down after sustaining cut injuries, the 4th accused pounced on his body and sat on his legs. He held Madhu by neck and rained stab injuries with a dagger. At that time, the 6th accused immobilised Madhu's right hand by Crl.Appeal Nos.570, 572,649, 651 & 15 656 of 2015 firmly holding it under his foot. Driver of the autorickshaw was standing by the side of it and watching the entire incident. After inflicting multiple injuries to the victim, the accused returned in the same autorickshaw. PW2 rushed to her husband and placed his head on her lap. She was petrified on seeing profuse bleeding from Madhu's neck and head. She desperately cried out and pleaded for help. At that time PW3 Shaji Govind was standing there. When PW2 was crying in distress, the 1st accused came there and asked 2nd accused if Madhu was finished. Along with 2 nd accused, there was yet another person who was not identified by PW2. All the time PW3 Shaji Govind was standing in a state of utter perplexion. 1 st accused went away on his motor bike and the 2nd accused and the other person returned on another motor bike. On hearing PW2's shriek, PW5 Hariharan, an employee in the temple, and PW7 Valsala Baburajan, Municipal Councillor, came to the place of occurrence. Obviously they were inside the temple. Even going by the evidence of PW2, the assailants had left the place by the time the above said witnesses reached at the place. PW2 deposed that immediately thereafter her son Midhun along with her nephew Rajesh came there. Two other persons also came. All of them together took deceased Madhu to West Fort Hospital. He was declared dead from the hospital. PW2 identified the accused persons in the dock. It is her emphatic testimony that the assailants were known to her previously. She also identified MOs. 1 and 2 weapons used for hacking her husband. She testified that there were disputes between Crl.Appeal Nos.570, 572,649, 651 & 16 656 of 2015 1st accused Prem and the deceased on political reasons. Prior to the incident, one day accused Nos.1 and 4 along with the brother of 1st accused had come to the house of PW2 in Madhu's absence and threatened her that Madhu would be done away with, if he did not behave properly. PW2 deposed that this fact was not informed to the deceased fearing aggressive reactions. 4th accused Praveen is a person residing in the locality. 1 st accused Prem was staying in a rented house close to the temple. She identified the dress and other articles belonging to the deceased.

15. This witness was extensively cross examined by the defence counsel. It was their attempt to establish that PW2 was not present at the scene when the crime was committed and she did not witness the incident. All the suggestions in this regard are strongly denied by PW2. It has come out in cross examination that she had been questioned by police on two occasions. Counsel for the 1st accused in cross examination tried to bring out a contradiction from this witness to show that the offending autorickshaw came before she stepped out of the temple gopuram. But, PW2 deposed that by the time the autorickshaw knocked Madhu down, she had come out of the gopuram. According to the learned defence counsel, her presence at the time and place of incident remains suspicious because she would not have seen the incident, if she had not come out of the temple compound as the road at the place is lies at a higher level. PW2 assertively deposed that she saw the entire incident. Minor contradictions elicited cannot be taken as a Crl.Appeal Nos.570, 572,649, 651 & 17 656 of 2015 ground to discard her evidence on this point. Needless to mention that all and every contradiction brought out in cross examination should not be taken into account to assess the credibility of a witness. Only those contradictions which are material and touching a relevant fact or fact in issue alone can be considered for assessing the credibility of a witnesses. Ext.D1 is a contradiction marked in the previous statement of PW2 in which she had stated that when she reached very close to the gopuram, the autorickshaw came and hit deceased Madhu. From PW2's narration of the entire incidents, we are unable to accept the defence case that she was not present at the place of occurrence.

16. She had spoken about the alleged abetment by accused 1 and 2 too, which we shall deal with in the succeeding paragraphs. PW2's version that the accused 1 and 4 along with 1 st accused's brother, a couple of days before the incident, had threatened her that they would eliminate Madhu, was not informed to the police at the time of questioning. That version of PW2 does not derive any support from other sources.

17. In cross examination of this witness, it is elicited that her house is about 350 metres away from Karthiyani Temple, Ayyanthole. When questioned, PW2 deposed that 6th accused had participated in the criminal act and he prevented fallen Madhu from using his hand by firmly pressing it on the ground with his foot. Further, in cross examination, it was suggested to this witness that she did not identify the person who drove the autorickshaw. Crl.Appeal Nos.570, 572,649, 651 & 18 656 of 2015 When it was pointed out to her that no such fact could be seen from her previous statements, she deposed that she had informed the police about identity of the 5th accused. Similarly, the defence counsel brought to the notice of PW2 that when she was questioned on 03.06.2013 and 08.06.2013 she did not identify all the accused persons for which she answered that she had clearly revealed their identity. Defence has another case that some of the accused are staying far away from Thrissur town. This suggestion, though not denied by PW2, was answered by asserting that she could identify all of them. PW2 did not mention about the presence of the 7th accused at the place of occurrence.

18. PW2 was recalled on a later date for further examination. She deposed in cross examination that accused Nos.3 and 4 were known to her much prior to the incident. But, she admitted that there was no previous occasion for her to identify other accused either before police or in court prior to seeing them in the accused dock at the time of trial. Still, we find no reason to disbelieve the testimony of PW2 regarding the identification of accused Nos.3 and 4. Despite an effort made in cross examination to show that in addition to her and Shaji Govind, other witnesses were also there at the time of occurrence, PW2 deposed that she could not remember as she was in terrible shock. From the totality of her evidence, we are of the view that cross examination done on her did not successfully bring out the defence case that she was not present at the scene of occurrence at the material time. She did Crl.Appeal Nos.570, 572,649, 651 & 19 656 of 2015 not give satisfactory reason to identify the 7th accused. According to her testimony, she identified the autorickshaw driver at the crime scene as he was standing by the side of the autorickshaw all the time watching the entire incident. It is her definite version that she found the 5 th accused knocking Madhu down when she stepped out of the gopuram. Her testimony regarding the act played by the 6th accused in restraining Madhu from resisting the assault also remains believable. Despite strenuous and lengthy cross examination on PW2, these aspects remain credible.

19. Learned counsel contended that PW2, being the wife of deceased, her evidence should be viewed with circumspection since she might be having a tendency to rope in all the enemies of Madhu in the incident. According to them, her testimony cannot be believed to accept the alleged role played by accused Nos.3 to 6 in the incident.

20. It is settled principle in law that a close relative, who is a very natural witness, cannot be regarded as an interested witness under all circumstances. A witness may be called "interested" only when he or she derives some benefit from the result of a litigation, ie., a decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is only possible eye witness in the circumstances of a case cannot be said to be "interested" (see State of Rajasthan v. Smt.Kalki - AIR 1981 SC 1390). Another principle to be remembered in this context is that normally a close relative of a victim will not depose falsehood to falsely implicate an Crl.Appeal Nos.570, 572,649, 651 & 20 656 of 2015 innocent person extricating the real offender. The mere fact that a witness is an interested witness is no ground for throwing out his/her evidence. All that is necessary in such cases is that the evidence of such witnesses should be examined with caution and having done so, if the court feels that the evidence do not suffer from any other legal or factual infirmity, there is no reason to distrust the evidence of such witnesses. (see State of U.P. v. Hari Ram - AIR 1983 SC 1081). Even assuming that PW2 is an interested witness, we have to scrutinise her evidence in the light of other materials available on record to find out whether it can be acted upon or not.

21. Testimony of PW3 Shaji Govind is relevant to assess the credibility of PW2. He was also residing adjacent to the temple. He was also a regular worshipper in the temple. He deposed that the temple faces to east and the road in front of it runs in north-south direction. Lie of the road, according to his deposition, is that after proceeding towards north, it takes a west turn and again goes to north. From the front side of the temple, visibility was there for 200 metres to east. In front of the main arch (gopuram), the road margin begins and slightly away a deepasthambham is installed. Towards the south, the road leads to a play ground. PW3 is a native of Ayyanthole. He knew deceased Madhu and his wife PW2 closely for a long time. His daughter's birthday was on 01.06.2013. PW3 along with his wife and daughter went to the temple for offering prayers. PW3 was a cement merchant at that time in Ayyanthole. At about 9.30 a.m., on the said day, he Crl.Appeal Nos.570, 572,649, 651 & 21 656 of 2015 bought sweets for birthday girl. He gave it to his child from the front side of temple and started talking to Madhu, who was standing there. While so, Madhu received a phone call. While he was talking over phone, an autorickshaw came from the northern side and dashed on Madhu's body. PW3 was terribly frightened. At that time, an employee of the temple and PW2 was present. PW2 was screaming. When PW3 turned, he found Madhu lying drenched in blood. Later Madhu was shifted to a hospital. He had shown the scene of occurrence to the investigating officer and he was present at the time of preparation of the scene mahazar (Ext.P7). He had been questioned as part of investigation. His statement was recorded by a Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (in short, Cr.P.C.).

22. Recording the statement of a witness under the above Section by itself does not render his evidence suspect (see N.Somasekhar v. State of Karnataka - (2004) 11 SCC 334). It has been laid down in Balak Ram v. State of U.P. ( AIR 1974 SC 2165), Ram Charan v. State of U.P. (AIR 1968 SC 1270) and also in Somasekhar's case (supra) that the statement of witnesses cannot be discarded merely because they were recorded under Section 164 Cr.P.C. But the evidence should be approached with caution as the witnesses are tied to their previous statement given on oath and have a theoretical freedom to depart from the earlier version.

23. It is settled law that statement of a witness recorded under Crl.Appeal Nos.570, 572,649, 651 & 22 656 of 2015 Section 164 Cr.P.C is not substantive evidence and it can be used only to corroborate or contradict that witness (see Brij Bhushan Singh v. Emperor

-AIR 1946 PC 38, Mamand v. Emperor - AIR 1946 PC 45 and George v. Sate of Kerala - AIR 1998 SC 1376). No doubt, where a prosecution witness himself does not support his version given under Section 164 Cr.P.C., his statement earlier recorded would not be available to the prosecution for corroboration and conviction of an accused cannot be recorded on the basis of the said statement.

24. Keeping the above principles in mind, we shall examine the testimony of PW3. When PW3 prevaricated his previous statements recorded by police and Magistrate, the prosecutor sought and obtained permission under Section 154 of the Indian Evidence Act, 1872 (in short, "Evidence Act") to put questions to the witness, which might be put in cross examination by the adverse party. When the prosecutor cross-examined PW3, the witness plainly admitted that he had stated before the Magistrate, when examined under Section 164 Cr.P.C., that he had seen the 3 rd accused Shinoj slashing Madhu with a sword. He also deposed affirmatively that he had told the Magistrate about the factum of his seeing three persons coming out of the autorickshaw. Similarly, he admitted in cross examination that he had stated before the Magistrate that he saw the 4 th accused Praveen stabbing Madhu. Further, he revealed before the Magistrate that police had brought the autorickshaw driver to the police station. To a question, he answered that he Crl.Appeal Nos.570, 572,649, 651 & 23 656 of 2015 did not remember whether MOs.1 and 2 were seen by him. He showed a volte-face to the material aspects in his statement recorded by police under Section 161 Cr.P.C.

25. When the learned counsel for the 1st accused cross examined, PW3 deposed that Madhu did not inform him before the incident that he was waiting for his wife (PW2). That may not have any significance since PW3 had deposed that he had seen Madhu and his wife at the place of occurrence just prior to the incident. In the cross examination on PW3 by the counsel for 1st accused, an answer was elicited from him that he stated before the Magistrate that one Premji had come on a motor bike and made a statement that everything was finished.

26. In cross examination, PW3 stated that he met Madhu on that day by mere chance. However, testimony of PW3 cannot be discarded holding that he is a planted witness. Although he did not fully support the prosecution case, there are elements in his evidence which will go against some of the accused persons, against whom allegations of overt act are made by the prosecution. During cross examination by the defence counsel, PW3 conceded to the suggestions that he succumbed to the pressure exerted by police to implicate the accused. He also agreed to a suggestion by the defence counsel that police had threatened him to implicate falsely in the case. From the tenor of PW3's evidence, it can be seen that he was going along with the prosecution case, when confronted with his statement Crl.Appeal Nos.570, 572,649, 651 & 24 656 of 2015 recorded under Section 164 Cr.P.C. and going against the prosecution case, when it comes to the statement recorded by police under Section 161 Cr.P.C. In otherwords, this witness has taken a stand of double speak. The maxim "falsus in uno falsus in omnibus" does not apply to Indian Jurisprudence. If we separate chaff from grain in PW3's evidence, we find his testimony rendering much support to PW2 regarding the fact that she was present at the place of occurrence at the time and after the incident. Moreover, he speaks about the presence of the 1st accused immediately after the incident in corroboration with the testimony of PW2. To a certain extent, involvement of accused Nos.3 and 4 are also spoken to by him.

27. PW29 Saleena V.G.Nair was the Judicial First Class Magistrate who recorded the statement of PW3 under Section 164 Cr.P.C. She deposed that she had conducted the preliminary examination of this witness before recording his statement. It is true that wholesome marking of the statement of PW3 recorded by PW29 under Section 164 Cr.P.C. was an irregular procedure. PW29 deposed that PW3 gave the statement to her voluntarily and without any external pressure. Considering the deposition of PW3, it can be seen that on material aspects touching the incident he has supported the prosecution to a great extent fortifying the presence of PW2 at the time of occurrence. Further, he has spoken about the direct involvement of accused Nos.3 and 4 in the incident. It has come out in his evidence that he knew accused Nos.3 and 4 prior to the incident as they are hailing from the same Crl.Appeal Nos.570, 572,649, 651 & 25 656 of 2015 locality. This also supports the version of PW2 since PWs 2 and 3 reside in the same locality, close to one another. True, this witness did not depose against the 6th accused, except saying that three persons jumped out of the autorickshaw.

28. In order to assess the credibility of PW2, we may refer to the deposition of PW5 Hariharan and PW7 Valsala Baburajan. PW5 Hariharan was working in the temple as a counter assistant. Admittedly the temple is managed by Cochin Devaswom Board. He very well knew deceased Madhu and he deposed that the incident was on 01.06.2013. At that time, he was present in the Devaswom Office. On hearing PW2's scream, he went outside and found Madhu lying on ground with multiple injuries. At that time, PWs 2, 3 and 7 were present. He is a witness to Ext.P7 scene mahazar. He also deposed that the temple faces towards east and a deepasthambham is installed in front of the temple.

29. This witness was cross examined at the instance of the appellants. It is elicited from this witness that the temple compound, including the sanctum sanatorium, is situated in a land having about one acre in extent. This witness testified that till 9.30 a.m. about 5 employees will be normally present in the temple. His work begins at 5.30 a.m. and it goes upto 9.30 a.m. Despite eliciting minor contradictions in his previous statement, we find no reason to discard the testimony of PW5, especially regarding the fact that PW2 was present at the time of incident at the place of occurrence. Crl.Appeal Nos.570, 572,649, 651 & 26 656 of 2015

30. PW7 Valsala Baburajan was the Municipal Corporation Councillor. She is also a person residing close to the temple. She had acquaintance with deceased Madhu and his wife (PW2). As a frequent visitor to the temple, she knew the temple employees also. This witness also deposed that the incident happened on 01.06.2013 at about 9.30 hours in the morning. She had also gone to the temple for darshan. When she was praying, she heard a cacophony from the road. When came out of the temple compound, she found deceased Madhu lying on ground with his head on PW2's lap. PW3 and Madhu's son were present along with the temple employees and others. Even though she did not depose about the incident, her evidence strengthen PW2's version that she was present at the place of occurrence at the material time watching her husband's horrendous murder.

31. To sum up this aspect, we are convinced that there are enough and more evidence to find the presence of PW2 at the scene of crime before commencement, at the time of commission and after commission of the criminal act. Testimony of PW3 renders support to that of PW2 in the matter of identification of the accused Nos.3 and 4. Although he did not identify accused 5 and 6, we find no reason to discard the reliable testimony of PW2 regarding the identity of accused Nos.5 and 6. Although the 5 th accused was seen by PW2 for the first time during the incident, her unflinching testimony, despite strict cross examination, clearly reveal the complicity of accused Nos.5 and 6 in the crime. PW2, being the wife of a victim of violent death, Crl.Appeal Nos.570, 572,649, 651 & 27 656 of 2015 cannot mistake the identity of accused Nos.5 and 6 since she had occasion to clearly see them throughout the incident and their faces could have been etched in her mind. In short, on an assessment of the testimony of the above mentioned witnesses, the events transpired on 01.06.2013 at about 9.30 a.m. in front of the Karthiyani Temple, Ayyanthole vividly spoken to by PW2 get support from other witnesses mentioned above.

32. Sri.V.T.Raghunath, learned counsel appearing for accused No.2 and 6, relying on State of U.P. v. Bhagwant and others ((2003) 10 SCC 74) contended that PW2's evidence cannot be relied on to enter a conviction of the accused persons since she is highly interested in the outcome of the prosecution. On going through the facts in the above decision, we find no similarity to the facts in this case in order to apply the ratio here. We have already mentioned the principles relating to appreciation of evidence of close relative of a victim, who happened to be an eye witness. Merely because such a witness is interested in the outcome of prosecution, his/her evidence cannot be discarded saying that it is blemished by interestedness.

33. Learned counsel for the appellants pointed out that PW2 has a definite case that she laid her injured husband's head on lap. So, blood should have been smeared on her apparels. Non recovery of saree and other dress materials worn by PW2 at the time of incident is a glaring infirmity in the prosecution case. If those items were recovered, they would have proved the presence of PW2 at the place of occurrence. To fortify this proposition, Crl.Appeal Nos.570, 572,649, 651 & 28 656 of 2015 reliance is placed on Meharaj Singh v. State of U.P. ((1994) 5 SCC 188). Supreme Court in that case, after analysing the evidence, found that the claim of the widow of deceased in that case, when scrutinised in the light of her conduct, was found to be very unnatural and therefore her version that she was present at the time of occurrence was disbelieved. But, in this case the situations are different. As mentioned above, PW2's testimony, unaffected by cross examination, coupled with the reliable testimony of PWs 3, 5 and 7 would show that she was present at the place of occurrence at the time when the incident had happened.

34. PW30, Ramachandran, was Police Circle Inspector, Thrissur. He conducted the investigation in this case. He deposed that on the date of occurrence at about 3.00 p.m. accused Nos.2, 3, 4 and 6 were arrested from a nearby place. After their arrest, statement of 2nd accused was recorded and he confessed about concealment of the autorickshaw and also a sword and dagger in the autorickshaw. At about 5.00 p.m. on the same day, PW30 proceeded, along with the 2nd accused, to a place called "Adattu" and found the autorickshaw bearing No.KL- 8/AY 4927 abandoned in the middle of an expansive paddy field. MOs.7 and 8, sword and knife respectively, were recovered from a hidden place, beneath the back seat of the autorickshaw. Prosecution has no case that MOs.7 and 8 were used for killing Madhu. It is also seen that these material objects were not sent to the Forensic Science Laboratory (FSL) for examination. We do not hold a view that for this reason Crl.Appeal Nos.570, 572,649, 651 & 29 656 of 2015 alone the 2nd accused can be implicated in the crime. We should search for other materials against him. PW30 in his deposition, as well as in the recovery mahazar, has clearly narrated the details about the autorickshaw. On the top of its front wind shield, a name "Nandanam" has been written. Autorickshaw was having a permit number TC 26/45. On the body of the autorickshaw, the name and address of 5th accused had been written in full clarity indicating that he was the owner of autorickshaw. Ext.P9 is the seizure mahazar.

35. It is the deposition of PW30 that on 01.06.2013 at about 3.00 p.m. when he questioned the 3rd accused, Shinoj, he made two confessions relating to throwing away his half sleeve baniyan (MO5) and MO2 sword. On the basis of the information, on 01.06.2013 after 5.00 p.m., PW30, along with the 3rd accused, went to the large extent of paddy fields and the 3 rd accused showed the place where his half sleeve baniyan was forsaken. In the presence of witnesses, the bloodstained dress material was recovered. Ext.P13 is the mahazar. PW10 is the independent witness to Ext.P13.

36. On the basis of the aforementioned information furnished by the 3rd accused on 01.06.2013, he was again taken to the paddy field on 02.06.2013 at about 8.00 am. and he had shown the water channel passing through the paddy field wherein he had abandoned MO2 sword. He took MO2 from the water channel as it was lying buried in sludge. The descriptions of the sword deposed to by PW30 exactly match with that of Crl.Appeal Nos.570, 572,649, 651 & 30 656 of 2015 MO2. That seizure mahazar is Ext.P8. PW8 is the independent witness. Although he did not completely support the prosecution case, the fact that Ext.P8 was prepared and signed from the place of recovery of the weapon is fortified from his deposition. Relevant part of the confession of 3 rd accused is marked as Ext.P15.

37. Thereafter on 04.06.2013, accused Nos.5 and 7 were arrested and they were produced before court. PW30 deposed that the accused persons arrested on 01.06.2013, who were produced before Magistrate and lodged in judicial custody, were taken to police custody on 06.06.2013. As per confession of the 4th accused, PW30, along with him, went to the earlier mentioned large extent of paddy fields and from a bush therein, adjacent to a motor shed, the 4th accused pointed out the place where he had concealed MO1 knife. Ext.P11 is the mahazar and his confession is Ext.P51. PW9 is the independent witness to Ext.P11. He did not fully support the prosecution case relating to identity of the accused. But he deposed that he signed Ext.P11 from the paddy field itself. Prosecution would rely on these aspects, borne out from evidence, to contend that Section 27 of the Evidence Act would make such statements and discovery of material facts relevant in this case. It also gives support to the reliable oral evidence adduced by the material prosecution witness to canvass conviction of accused Nos.3 to 5.

38. It is well settled that Section 27 of the Evidence Act is worded by way of proviso to Sections 25 and 26 and a statement even by way of Crl.Appeal Nos.570, 572,649, 651 & 31 656 of 2015 confession made in police custody, which distinctly relates to the facts discovered, is admissible in evidence against the accused (see Delhi Administration v. Balakrishan - AIR 1972 SC 3). In Pulukuri Kottaya v. Emperor (AIR 1947 PC 67) it is enunciated thus : "The Section seems to be based on the view that if a fact is actually discovered in consequence of an information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence also."

39. The courts are also wary of a possible misuse of Section 27 of the Evidence Act by police. The protection afforded by the wholesome provisions of Sections 25 and 26 of the Evidence Act could be whittled down by police by their ingenuity in manipulating the record of information given by the accused in the case diary in such a manner as to make it appear that it led to the discovery of some facts although the police might have made such discovery from other sources. In order to safeguard the interest of both the sides in a criminal prosecution, the court must consider the quality and quantity of evidence adduced to establish the discovery of a fact, based on the information received from a person accused of an offence, in the custody of a police officer. Principle in Section 27 of the Evidence Act is based on the theory of confirmation by subsequent facts. No doubt, no accused can be convicted solely relying on the discovery of a fact on the basis of information received from him while in custody of a police officer. In a case where the testimonies of eye witnesses are available to prove the incident, the Crl.Appeal Nos.570, 572,649, 651 & 32 656 of 2015 discovery of a material fact under Section 27 of the Evidence Act can be used to corroborate other evidence. Where a case rests solely on the circumstantial evidence, such discovery of a fact can be taken as a link in the chain of circumstances brought out by the prosecution against the accused.

40. On a close reading of Section 27 of the Evidence Act, it will be unmistakably clear that the discovery of a fact in consequence of an information received from a person accused of an offence, in the custody of a police officer, stands proved when the factum of discovery of that fact is deposed to by the police officer. In otherwords, what is important is the deposition of the police officer who discovered a relevant fact consequent to the information furnished by an accused in custody, whether it amounted to a confession or not, and credibility of the deposition will have to be assessed in the touchstone of cross examination. Precedents are galore that what is relevant is that the accused had exclusive knowledge about a fact which is relevant in the case. Legally speaking, what is admissible under Section 27 of the Evidence Act is not merely the knowledge of the accused regarding the place of concealment of a material object, but his knowledge of the same emerging from an admission that he himself has concealed it there with the exclusion of the knowledge of others. Stated precisely, the fact discovered under Section 27 of the Evidence Act includes not only the physical object taken out, but also the place from where it is taken out and the exclusive knowledge of the accused as to the same. A fact which is known to a police Crl.Appeal Nos.570, 572,649, 651 & 33 656 of 2015 officer, even prior to the information furnished by the accused in custody, if re- discovered on the basis of the information given by the accused, will not fall within Section 27 of the Evidence Act.

41. We have considered the testimony of PW30, the investigating officer, who effected the recovery of weapons used for the assault, viz., MOs 1 and 2 and other materials. We find no justifiable reason to discard his testimony although the independent witnesses cited to prove recovery of the articles did not fully support the prosecution case. Material objects in this case, recovered on the information furnished by the accused, were found out from a paddy field having a large area. This fact lends support to the prosecution case that the accused had exclusive knowledge about the places of concealment which otherwise would not have been known to others. As stated earlier, we are not resting our conclusion only on the basis of discovery of facts sought to be proved under Section 27 of the Evidence Act. However, this aspect also renders support to the prosecution case.

42. Sri.S.Rajeev vehemently argued that there are patent improbabilities regarding the alleged recovery of articles at the instance of the accused persons. As mentioned earlier, two items of material objects were recovered on a single confession of 3rd accused made on 01.06.2013. As per Ext.P13 mahazar, MO5 half sleeve baniyan was recovered on 01.06.2013 at 18.30 hours from the paddy field. Ext.P2 is the confession statement in that regard. On the basis of the aforementioned confession made on 01.06.2013 Crl.Appeal Nos.570, 572,649, 651 & 34 656 of 2015 by the 3rd accused, MO2 sword was recovered from the paddy field only on 02.06.2013 at about 8.00 a.m. It is seriously challenged by the learned counsel for the appellants that no satisfactory explanation is forthcoming as to why recovery of two articles, said to have been discovered on a single confession of 3rd accused in custody, was not effected on 01.06.2013 and why was the 3rd accused taken again to the paddy filed on 02.06.2013 at 8.00 a.m.? Likewise, why was the 4th accused, though said to have confessed to PW30 on 01.06.2013, taken to the place only on 06.06.2013? Answers to these questions are very simple. PW30's evidence would show that the 3 rd accused confessed about jettisoning of MO2 sword and MO5 half sleeve baniyan. It can be seen from Ext.P13 mahazar that recovery of MO5 was effected on 01.06.2013 at 18.30 hours and as per the deposition of the independent witness PW10, the mahazar was prepared from the place of recovery itself. It is common knowledge that it may not be possible during night to conduct a search for MO2 sword in a water channel running through a large paddy field. Therefore, we find no infirmity or unnaturality in recovering MO2 sword at the instance of 3 rd accused as per Ext.P8 on 02.06.2013 at 8.00 a.m. It can be seen that at the earliest opportunity the recovery was effected. Similarly, PW30 mandatorily should have produced the accused within 24 hours of their arrest. It is possible, therefore, that he could not have obtained sufficient time to effect recovery of MO1 through the 4th accused on 01.06.2013 or 02.06.2013. The prosecutor has a valid and Crl.Appeal Nos.570, 572,649, 651 & 35 656 of 2015 believable explanation for the short delay in effecting recovery of the material objects. On evaluation of the entire evidence, we find no reason to discard the reliable testimony of PW30.

43. Exts.P92 and P93 are the lists of property submitted by PW30 before the Magistrate having jurisdiction. Item No.7 in Ext.P93 is the autorickshaw wherein name of the 5 th accused has been painted on the body. The weapons and dress materials were sent for chemical examination.

44. Ext.P53 is the report submitted by the Chemical Examiner. The report was marked through PW30, the investigating officer. Ext.P53 shows that 8 items were sent to the FSL for analysis. Item No.1 - a piece of cotton cloth with dark red stains, item No.2 - another piece of cotton cloth, item No.3 - yet another piece of cotton cloth with dark red stains, item No.4 - white coloured dhothi worn by deceased and item No.5 - green coloured torn half sleeve shirt worn by deceased were tested positive for human blood in group B. Item No.6 - a yellow coloured half sleeve baniyan (MO5), item No.7 - rusted metallic chopper with wooden handle (MO2) and item No.8 - rusted metallic knife (MO1) were found to contain blood, but the quantity of blood thereon was insufficient for determining the origin and group. It is to be remembered in this context that MOs1 and 2 were recovered from an open paddy field exposed to sun and rain. The incident was on 01.06.2013, a time when monsoon hits this part of the country. Lack of sufficient quantity of blood to assess the origin and group will not enure to the benefit of the Crl.Appeal Nos.570, 572,649, 651 & 36 656 of 2015 accused since the weapons used for aggression were recovered from an open place exposed to vagaries of weather.

45. Sri.S.Rajeev contended that non examination of Rajesh, who first informed PW1 about commission of the crime is fatal to the prosecution case. It has come out in evidence that Rajesh is another nephew of deceased Madhu. None of the witnesses has spoken to that Rajesh was present at the scene of occurrence during the criminal transaction. According to PW2, besides her only PW3 was present at the place when Madhu was attacked. It is her unchallenged version that immediately after the incident her son Midhun along with Rajesh came to the place and they along with other two persons took Madhu to the hospital. From the totality of prosecution evidence, we find no material flaw in the prosecution case for non examination of Rajesh. Hence we reject that contention of the appellants.

46. Sri.Nandagopal S.Kurup contended that there is no reliable material to implicate the 5th accused in the crime. According to him, PW2 has no case that she knew the 5 th accused prior to the incident. It is therefore argued, placing reliance on the decision in Rameshwar Singh v. State of J and K ((1971) 2 SCC 715), that when the accused was not known to the witnesses previous to the occurrence, a test identification parade should have been conducted to justify implication of him in the crime. The Supreme Court in the said decision held thus:

"6. Before dealing with the evidence relating to Crl.Appeal Nos.570, 572,649, 651 & 37 656 of 2015 identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnish to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing a corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigation agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at Crl.Appeal Nos.570, 572,649, 651 & 38 656 of 2015 the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness."

47. But, facts in this case would clearly show that PW2 had sufficient time to see the 5th accused as he was standing by the side of the autorickshaw throughout the incident. Besides, PW2 convincingly deposed that she saw the autorickshaw driven by the 5 th accused knocking Madhu down. In addition to that, on recovery of autorickshaw, it was seen that his name was inscribed on it. There are clear circumstances against the 5 th accused. Reliable materials against the 5th accused, according to us, clearly establish his complicity in the crime. Fact that no test identification parade was conducted in this case would not affect the credibility of PW2's evidence and other circumstances implicating the 5th accused.

48. On a consideration of the entire facts and circumstances and also the legal principles mentioned above, we have no hesitation to hold that accused Nos.3 to 6 were directly involved in committing the crime. Although the learned counsel appearing for accused Nos.5 and 6 contended that except the testimony of PW2, there is no evidence against them, that submission cannot be accepted for the reasons mentioned above. Apart from the fact that the 5th accused was properly identified by PW2, the autorickshaw recovered revealed his identity. The contention raised by the learned counsel for the 5th accused that the investigating officer did not take Crl.Appeal Nos.570, 572,649, 651 & 39 656 of 2015 any step to collect the records pertaining to the vehicle from the Motor Vehicles Department is of no consequence since there are ample evidence available against the 5th accused to implicate him in the crime. Similarly, the role played by the 6th accused is also revealed from the credible testimony of PW2. Even PW3, who did not fully support the prosecution case, deposed that three passengers alighted from the autorickshaw for committing the crime. 6th accused has been clearly identified by PW2 and we have no hesitation to hold that accused 3 to 6 are guilty of committing the murder with a common intention.

49. Learned Sessions Judge convicted accused 3 to 6 for an offence under Section 201 IPC also. Main part and first limb of Section 201 IPC would show that whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment is liable to be punished with imprisonment of either description for a term which may extend to seven years and shall also liable to fine, if the offence, which he knows or believes to have been committed, is punishable with death. The expression "whoever causing disappearance of evidence", according to some old decisions, applied merely to the person who screened the principal or actual offender and not to the principal or actual offender himself. It is now settled that the Section is not restricted to the case of a person who screens the actual offender, it can be applied even to a person Crl.Appeal Nos.570, 572,649, 651 & 40 656 of 2015 guilty of the main offence and the offence under the Section. (see Kalawati v. State of Himachal Pradesh (AIR 1953 SC 131). The evidence in this case would clearly show that accused persons involved in the actual criminal transaction consciously made attempts to cause the disappearance of evidence of the crime. Therefore, the court below rightly convicted accused Nos.3 to 6 for an offence under Section 201 IPC.

50. Next point to be considered is whether, based on the testimony of PWs 4 and 6, the theory of conspiracy put forward by the prosecution to implicate all the accused in the crime could be taken as established. Sri.V.T.Raghunath pointed out that in the FIR, Shinoj (3 rd accused) was shown as the 1st accused and Martin (2nd accused) was shown as the 2nd accused. Present 4th accused Praveen was the 3rd accused in the FIR and 6th accused Suresh was the 4th accused therein. According to the learned defence counsel, interference by politicians then in power and their influence on the investigating officer resulted in addition of other accused persons and consequent changes in their ranks. In the final report, accused 1, 5 and 7 were introduced. Apart from offences under the IPC, they were charged with offences under the Arms Act, 1959 as well. Learned Sessions Judge accepted the defence case that there was no notification under the Arms Act, covering the area where the incident had occurred, prohibiting possession of such weapons. Contentions raised by the defence based on the decision in Jithu and another v. State of Kerala (2014 (3) KHC 77) were accepted and Crl.Appeal Nos.570, 572,649, 651 & 41 656 of 2015 the accused persons have been acquitted for the offences charged under the Arms Act. As there is no challenge by the State against that finding, we find no reason to interfere in that decision of the learned Sessions Judge.

51. Coming back to the case of conspiracy, we find that the prosecution relies on the testimony of PWs 4 and 6 to establish the same. We shall closely examine the oral evidence to appreciate the contention. PW4 Sathi is the sister of deceased Madhu. She was residing on the eastern side of Karthiyani Temple. It is her deposition that her deceased husband was vending short eats like "baji". After his death, her son continued the business. She used to cook the eatables. Usually at about 1 o' clock in the noon PW1 would go for selling the food articles. It is her evidence that she used to clean the vessels used for cooking and sale of food articles in the morning. On the backside of her house, there is a paddy field. A road runs through the front side of her house. She used to wash the utensils from the southern side of her house. One day, when she was washing vessels, she saw a white car entering the paddy field through a mud road. About 5-6 persons alighted from the car. It was at about 9.30 a.m. According to her testimony, the persons who came out of the car were known to her. She deposed that accused 1, 2, 3 and 4 and two others were those persons. They were talking to each other and she overheard them saying her brother Madhu's name. On hearing her brother's name repeatedly, she stood up at the place where she was sitting for cleaning vessels. At that time 1 st accused, on seeing her, told others that Crl.Appeal Nos.570, 572,649, 651 & 42 656 of 2015 she was looking at them. Immediately all the persons went away. One Lal was driving the car. It is pointed out by the appellants' counsel at the time of hearing that the person named Lal was murdered subsequent to the incident. After they left, accused Nos.3 and 4 came on a motor bike and thereafter they went to the house of the 6 th accused. It is her definite case that the 6 th accused's house is on the western side of her house. After a while, accused Nos.3 and 4 along with the 6 th accused, came out of his house and at that time, 6th accused was holding a long paper cover. All the three went on the same motor bike. She emphatically stated that the 6 th accused was holding a weapon wrapped in paper. She gave a statement before the Magistrate under Section 164 Cr.P.C.

52. This witness was cross examined at length. Some omissions are pointed out in the cross examination that PW4 deposed that she washed vessels on the backside of her house and not on the southern side. Averments in the statement recorded by police from this witness, contrary to her deposition, are denied by her. It is also brought out in cross examination that she did not inform police that a white car came as deposed to by her. It is pertinent to note that in the chief examination, she did not mention the date on which she allegedly saw the conspiracy between accused Nos.1 to 4, 6 and 7. Certain questions were asked to this witness to show that the accused would not have conspired from an open place close to PW4's house. It is also suggested that in a sitting posture, she would not have seen anyone in the Crl.Appeal Nos.570, 572,649, 651 & 43 656 of 2015 paddy field because of the presence of tall grass, grown on the southern side of her house, hindering a direct view to the paddy field. Although she denied these suggestions, on considering the totality of evidence, we feel that her testimony on these aspects are a bit shaky. It is also pointed out by the learned counsel for the appellants that going by the charge framed by the learned Sessions Judge, the conspiracy was hatched in the evening on 31.05.2013. PW4 has a case that she saw the accused conspiring at 9.30 a.m. on that date. Ext.D5 series are the photographs produced by the defence to show that it was not possible for vehicular access through the paddy field as it was marshy at that time. This suggestion is denied by PW4. It can be seen from the testimony of PW4, as well as from the photographs, a residential complex by name "Chelur Apartments" is situated in the vicinity. PW4 was subjected to cross examination regarding the identity of 3 rd accused. She mentioned only his nick name as "Cheenavadi" and later she named him as "Shinoj". On an evaluation of the entire testimony of PW4, we find the case of conspiracy, set up by the prosecution, cannot be accepted solely relying on the shaky evidence given by PW4.

53. PW6 Rajendran is another witness examined by the prosecution to prove conspiracy. He was driver of an omni van, engaged in taking children to schools. He knew deceased Madhu. He used to take children at about 8 o' clock in the morning. On 01.06.2013 schools were not reopened after summer vacation. He deposed that for no special reason he took his Crl.Appeal Nos.570, 572,649, 651 & 44 656 of 2015 vehicle at about 9.00 a.m. on that day and came to the side of Karthiyani Temple, Ayyanthole. When he reached at EMS lane, adjacent to the temple, where 1st accused's house is located, he found the 1 st accused standing by the side of his compound wall along with the 2 nd accused and another person known to him. Thereafter, he went to Ayyanthole ground through the side of temple. After half an hour, he received a call from Rajesh that Madhu suffered injuries at the hands of accused Nos.3 and 4. He identified accused Nos.1, 2, 3 and 7.

54. In cross examination, the defence counsel had a definite case that PW6 had no occasion on 01.06.2013 to come to the place in his omni van as schools were not reopened. Even though he denied the defence suggestion that he did not come to the side of Karthiyani Temple and found the accused Nos. 1 and 2 and another person standing by the side of 1 st accused's house, from a totality of his evidence, we find his version is not fully acceptable on account of glaring embellishments. During cross examination, he stated that without any specific reason he came to that place. He admitted in cross examination that he did not give any statement to police identifying the 7th accused. Contradictions in the case diary were also put to this witness for which he did not give any satisfactory explanation. When cross examined, this witness admitted that information given to police that accused Nos.1 and 2 were his playmates is not correct, but they were known to him for a long time. He adhered to the prosecution case that he Crl.Appeal Nos.570, 572,649, 651 & 45 656 of 2015 knew accused Nos.1 to 4 even much prior to the incident.

55. On evaluation of the testimony of PWs 4 and 6, we find that the theory of conspiracy, tried to be developed through these witnesses, cannot be accepted without any other material to corroborate the same.

56. PWs 21 and 22 were examined to prove that they knew some of the accused persons and they used to call them. In fact the prosecution wanted these witnesses to speak about the mobile numbers of certain accused persons. Both these witnesses failed to support the prosecution. Despite cross examination, no worthwhile evidence could be elicited from them to establish as to what were the phone numbers used by the accused at the material time. Prosecution wanted to rely on Exts.P34 to P45 certificates issued by the mobile phone service providers. These documents are sought to be proved through PWs 26 to 28. PW26 was the nodal officer of Tata Docoma Mobile Service. The call details produced and proved by this witness are in respect of a period from 30.05.2013 to 02.06.2013. He proved Exts.P34 to P37. He deposed that the relevant data retrieved from computer system has been properly certified under Section 65B of the Evidence Act.

57. PW27 was the nodal officer of Bharati Airtel Ltd. He also gave a certification under Section 65B of the Evidence Act to the call details and proved Exts.P38 to P42.

58. PW28 is the nodal officer of Vodafone Cellular Ltd, who also issued call details to the investigating officer duly certified under Section 65B Crl.Appeal Nos.570, 572,649, 651 & 46 656 of 2015 of the Evidence Act. He proved Exts.P43 to P45.

59. Learned counsel for the appellants contended that no value can be attached to the testimony of these witnesses and documents produced and proved through them, because they pertain to a short period from 30.05.2013 to 02.06.2013. It is argued that even if we accept that there were calls between the accused persons, it cannot be found to be in furtherance of a conspiracy, because admittedly they knew each other. It is forcefully argued that had the prosecution produced call details pertaining to a longer period, say for one month, covering the date of incident and if there were frequent calls between the accused persons for a couple of days immediately prior to the incident, it would have probabilised the prosecution case. We are of the view that producing call details from mobile phone service providers for a few days close to the incident alone may be of no use, since there could have been contacts between known persons on any given day and that will not give an indication of conspiracy. But, if the records produced indicated that the accused persons were not contacting each other on a regular basis for a long time and they contacted each other many number of times just prior to the incident, a conspiracy could have been inferred. Testimony and documents are insufficient to hold the accused liable for conspiracy.

60. Prosecution examined PWs 11 to 14 to prove that the accused persons had contacted taxi operators to flee from the place of occurrence after committing the crime. PW11 deposed that he could not say as to how Crl.Appeal Nos.570, 572,649, 651 & 47 656 of 2015 many persons contacted him on 01.06.2019 over phone. We find no significance to the testimony of this witness as it will not improve the prosecution case.

61. PW12 is also a taxi operator. He directed the caller to his mobile number to contact another operator by name Manikandan (PW13) on 01.06.2019. PW13 said that he received a call from a number and arranged an Innova car for dropping some persons from a place called Muthavara to Thrissur town.

62. PW14 Nikhil was the driver of the Innova car arranged by PW13. He said that he brought some persons from Adattu to Ayyanthole. He did not remember the number of persons as well as their details. This witness was cross examined very elaborately. Even if we accept the prosecution case that immediately after the incident the accused persons travelled in the vehicle driven by PW14, we cannot infer a conspiracy on the basis of the evidence tendered by these witnesses. Considering the material evidence supplied by the prosecution to establish the allegation that the accused conspired together on 31.05.2013 and in the morning on 01.06.2013 to commit the crime, we find the evidence in this regard is highly insufficient and not reliable to hold them guilty for conspiracy. We are not oblivious of the proposition that it will be futile to expect direct evidence for conspiracy as it is normally done in a secret manner. However, the evidence adduced to establish the allegation that the accused persons conspired to exterminate Madhu should Crl.Appeal Nos.570, 572,649, 651 & 48 656 of 2015 be of such a quality that it inspires confidence in the mind of the court.

63. It is a cardinal principle in criminal law that criminal conspiracy itself is an independent offence. It is punishable separately. The Supreme Court in State of Madhya Pradesh v. Sheetla Sahai and others ((2009) 8 SCC 617) identified the ingredients of conspiracy thus:

"... Its ingredients are:

(i) an agreement between two or more persons;

(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.

What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.

While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence."

64. In P.K.Narayanan v. State of Kerala ((1995) 1 SCC 142), the principle laid down is that criminal conspiracy can be inferred from circumstances properly established through evidence adduced in a case. However, mere suspicion and surmises or inferences unsupported by cogent evidence are not sufficient to prove criminal conspiracy. Indisputable proposition is that in order to determine whether the offence of criminal Crl.Appeal Nos.570, 572,649, 651 & 49 656 of 2015 conspiracy has been committed or not, court can take into consideration the circumstantial evidence as well, but mere knowledge of an accused is not sufficient to constitute the offence of criminal conspiracy. The above view is fortified by a decision in Purushothaman v. State of Kerala ((2005) 12 SCC

631).

65. Relying on the decision in Raju @ Devendra Choubey v. State of Chhattisgarh ((2014) 9 SCC 299) learned counsel for the appellants contended that conspiracy though can be drawn from unimpeachable circumstances proved in a case, if while drawing an inference any benefit of doubt creeps in, it must go to the accused.

66. It is also beyond pale of any dispute that burden of proving the alleged conspiracy squarely rests on the prosecution. Any amount of suspicion cannot take the place of a legal proof. To buttress this proposition, the decision in Purushothaman's case (supra) is pressed into service.

67. Sri.Alex M.Thombra, learned Public Prosecutor, relying on the decision in Firozuddin Basheeruddin v. State of Kerala (2001 (3) KLT 189 (SC)) contended that it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement, which amounts to a conspiracy, need not be formal Crl.Appeal Nos.570, 572,649, 651 & 50 656 of 2015 or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. Certainly, we agree on these legal principles enunciated in the decision, but we find no material from evidence in this case to infer any gravamen of criminal conspiracy. Hence the principles in the above decision cannot be applied to this case.

68. Sri.S.Rajeev contended that to prove criminal conspiracy, meeting of mind is essential. Mere knowledge or discussion would not be sufficient. In order to buttress this contention, reliance is placed on the decision in State (Government of NCT of Delhi) v. Nitin Gunwant Shah and another ((2016) 1 SCC 472).

69. Having assessed the quality of evidence regarding the alleged conspiracy and keeping the settled principles of law to be applied in order to shackle the accused persons for conspiracy under Section 120B IPC in mind, we find it extremely difficult to sustain the conviction of the appellants under Section 120B of Section 302 IPC. Hence, we unhesitatingly set aside the conviction of all the appellants for the offence of conspiracy to commit murder.

70. Another point remaining to be considered is the case of abetment put forward by the prosecution to implicate accused Nos.1 and 2 in the crime. As pointed out by the learned counsel for those accused persons, testimony of PW2 alone is available to feebly infer a case of abetment by Crl.Appeal Nos.570, 572,649, 651 & 51 656 of 2015 accused Nos.1 and 2 to commit the murder. PW2 deposed that after the incident, 1st accused came to the place and asked the 2 nd accused if Madhu was finished. It is the prosecution case that the 1 st accused was having an axe to grind against deceased Madhu as he inflicted a stab injury to him a couple of months prior to the incident. Although in the charge framed by the court it is alleged that the 1 st accused had financed the crime syndicate, there is absolutely no evidence available to show this aspect. It is argued by the learned counsel for the appellants that PW2 when questioned by police did not state as deposed to by her before the court to implicate accused Nos.1 and 2. Omissions regarding this aspect have been marked and proved. Learned Sessions Judge did not say any valid reason to enter a finding that accused Nos.1 and 2 had abetted the other accused who did the crime as alleged. We are clear in our mind that there is no reliable material to find the accused Nos.1 and 2 guilty of an offence of abetment punishable under Section 109 read with Section 302 IPC. Therefore, we set aside the conviction of accused Nos.1 and 2 on this count.

71. It has also come out in evidence that there is no material on record to implicate the 7th accused in the crime. There is no evidence to hold that he did take part in the overt action established against accused Nos.3 to

6. Even going by the prosecution case, his identity as a conspirator or an abettor has not been established. Therefore, conviction and sentence awarded by the trial court on the 7th accused is without any legal justification Crl.Appeal Nos.570, 572,649, 651 & 52 656 of 2015 and hence, he is found not guilty of any offence.

In the result,

(i) Crl.Appeal No.656 of 2015 preferred by the 1 st accused in Sessions Case No.185 of 2014 before the IV Additional Sessions Judge, Thrissur is allowed. Conviction and sentence imposed on him is set aside. Appellant is acquitted of all charges levelled against him.

(ii) Crl.Appeal No.651 of 2015 preferred by accused Nos.2 and 6 in the above Sessions Case is partly allowed. Conviction and sentence awarded to the 1st appellant is set aside. 1st appellant (2nd accused) is acquitted of all charges levelled against him.

(iii) Crl.Appeal No.649 of 2015 preferred by the 7 th accused in the above Sessions Case is allowed. We set aside conviction and sentence imposed on him. Appellant is acquitted of all charges levelled against him.

Hence, accused Nos.1, 2 and 7 shall be set free forthwith if they are not wanted in any other case.

(iv) Crl.Appeal Nos.570 of 2015, 572 of 2015 and 651 of 2015 are partly allowed. Conviction of appellants (accused Nos.3 and 4) in Crl.Appeal No.570 of 2015, sole appellant (5 th accused) in Crl.Appeal No.572 of 2015 and 2nd appellant (6th accused) in Crl.Appeal No.651 of 2015 under Section 302 read with Section 34 IPC is confirmed. Imprisonment for life and fine amount awarded by the court below for the proved offence under Section 302 read with Section 34 IPC are also confirmed. Their conviction and Crl.Appeal Nos.570, 572,649, 651 & 53 656 of 2015 sentence under Section 201 IPC are also confirmed. Accused 3 to 6 are acquitted of charges under Section 120B of Section 302 IPC.

Appeals disposed accordingly.

All pending interlocutory applications will stand closed.

A.HARIPRASAD, JUDGE.

N.ANIL KUMAR, JUDGE.

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