Kerala High Court
Omprakash vs State Of Kerala on 4 October, 2018
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940
CRL.A.No. 1205 of 2013
AGAINST THE JUDGMENT IN SC 1540/2009 of THE ADDITIONAL SESSIONS
JUDGE, THIRUVANANTHAPURAM DATED 27-04-2013
CP 22/2008 of ADDL.C.J.M.,THIRUVANANTHAPURAM,
CP 71/2010 OF ADDITINAL CJM, THIRUVANANTHAPURAM
CRIME NO.51/2007 OF PETTAH POLICE STATION, THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.9:
OMPRAKASH, AGED 33,
S/O.PRASANNAKUMAR,O K NIVAS, VALIYATHURA
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.MANU TOM
SRI.M.SUNILKUMAR
SRI.R.ANIL
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM
BY PUBLIC PROSECUTOR SRI. NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.07.2018,
ALONG WITH CRL.A.864/2013, CRL.A.918/2013, CRL.A.628/2013, &
CRL.A.538/2015, THE COURT ON 4.10.2018 DELIVERED THE FOLLOWING:
2
Crl.A.No.628/2013 & conn.cases
JUDGMENT
SHAFFIQUE, J.
These batch of Criminal Appeals are preferred by the accused against the conviction and sentence passed by the Court of Additional Sessions Judge -I, Thiruvananthapuram vide judgment dated 27/04/2013 in Sessions Case No. 1540 of 2009 arising out of Crime No. 51/2007 of the Pettah Police Station, Thiruvananthapuram. Crl.A.No.628/2013 is filed by the 10 th accused, Crl.A.No.864/2013 is filed by the 6 th accused, Crl.A.No.918/2013 is filed by accused Nos.7 and 11, Crl.A.No.1205/2013 is filed by the 9 th accused and Crl.A.No.538/2015 is filed by the 3rd accused.
2. The case of the prosecution is that accused 1 to 11 conspired together over a period of time, on different occasions, to murder Krishnakumar @ Aprani Krishnakumar. On 20/02/2007, Krishnakumar attended the Court of Judicial First Class Magistrate - II, Thiruvananthapuram in connection with C.P No. 21 of 2007. After attending the Court, around 12.15pm, he along with his friends including PW1 and PW2 got into an Indica car with registration number KL-01-AF-2078 and drove towards Chakkai bypass. It is alleged that in furtherance of the conspiracy hatched among A1 to A11, accused nos. A1 to A8, having entertained a common object to kill Krishnakumar, formed an unlawful assembly and followed the said Indica car in which he was travelling. The accused were following in a Scorpio car bearing registration number KL- 2/W-9583 hired for the said purpose. As the Indica car passed Satheendra auditorium near Chakkai, the said car was blocked by the Scorpio car and the assailants hurled locally made bombs at it. The occupants of the Indica car ran 3 Crl.A.No.628/2013 & conn.cases for their lives. The accused persons armed with deadly weapons like sword and choppers chased the deceased and inflicted fatal injuries on him. He was immediately taken to the KIMS hospital by police and PWs 1-2. But he succumbed to the injuries by 2.30pm on the same day.
3. PW84, the Sub Inspector of Police, Pettah Police Station recorded the First Information Statement of PW1, an injured witness and a case was registered against accused 1 to 3 and seven other identifiable persons under Sections 143, 147, 148, 149, 324 and 307 of the Indian Penal Code, 1860 (45 of 1860) together with Sections 3 and 5 of the Explosive Substances Act, 1908 (6 of 1908) and Section 27 of the Arms Act, 1959 (54 of 1959). Investigation was taken over by PW89, the Circle Inspector of Police, Pettah Police Station and S.302 IPC was added by filing Ext.P140 report. As the investigation progressed, A9 to A11 were added in the array of accused and S.120B was added against them by filing Ext.P141 report. After completing the investigation, PW89 submitted the final report before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. A1, A2, A4 and A5 were absconding at various stages and their case was split up. The present case was committed to the Court of Sessions, Thiruvananthapuram and numbered as S.C. 1540/2009 and was made over to the Court of Additional Sessions Judge
- I, Thiruvananthapuram for trial and disposal.
4. After hearing both sides, charge was framed against the accused for the above-said offences. Accused pleaded that they are not guilty.
5. On the side of the prosecution, PW1 to PW93 were examined. Documents were produced and marked as Exhibits P1 to P205. MO1 to MO36 4 Crl.A.No.628/2013 & conn.cases were identified and proved. From the defence side, Defence Witnesses DW1 to DW3 was examined.
6. The trial court by the impugned judgment convicted the accused Nos. 3, 6, 7 and 9 to 11. Accused No 8 was acquitted. Accused 3, 6 and 7 were sentenced to undergo imprisonment for life and to pay a fine of Rs. 2 Lakhs each and in default to undergo rigorous imprisonment for two years each for the offences punishable under S.302 read with S.149 of the IPC. They were further sentenced to undergo rigorous imprisonment for 6 months each for the offence punishable under S.143 read with S.149 of the IPC. They were also found guilty under S.324 read with S.149 of the IPC and were sentenced to undergo imprisonment for 2 years each. The above-said accused were also convicted and sentenced to undergo rigorous imprisonment for 5 years each for the offences punishable under S.3 and for a further period of 5 years for the offence punishable under S.5 of the Explosive Substances Act, 1908. Accused Nos. 9, 10 and 11 were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2 Lakhs each and in default to undergo rigorous imprisonment for 2 years each for the offences punishable under S. 120-B read with S. 302 of the IPC. A7 was sentenced to undergo rigorous imprisonment for one year for the offence punishable under S. 147 read with S.149 of the IPC. A3 and A6 were sentenced to undergo rigorous imprisonment for 3 years each and to pay a fine of Rs.5,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each for the offence punishable under S.148 read with S.149 of the IP Code. They were further sentenced to undergo rigorous imprisonment for 3 years each and 5 Crl.A.No.628/2013 & conn.cases to pay a fine of Rs.10,000/- each and in default of which to undergo rigorous imprisonment for one year each for the offence punishable under S.27 of the Arms Act, 1959. The substantive sentences so awarded were held to run concurrently. The entire amount of fine, if realized, was directed to be paid to the legal heirs of the deceased u/s 357 of the Cr.P.C.
7. The learned Counsel appearing for accused No.3 argued that the case against him is a fabricated one and there is absolutely no evidence against him. Trial Court relied on the oral testimonies of PW1, PW9, PW41 and PW89 erroneously. All eyewitnesses turned hostile to the prosecution. PW1 in his FI Statement stated that A3 hurled crude bombs at the car in which the deceased, PW1 and 2 were travelling. Against whom the bombs were alleged to be hurled, left the hospital on the same day with minor injuries. Ext.D5 and 6 proves it. A3 was allegedly arrested on 20/06/07 and disclosure statement was prepared on the same day. He was produced before Magistrate on 21/06/07 and was sent to judicial custody. In Ext.P170 remand report also, the allegation was hurling of bombs. A3 was again taken to police custody on 26/06/07 and two split recoveries were effected i.e., recovery of knife from beneath a bridge on 26/06/07 (Ext.P46) and dress of A3 from the alleged rented house of the parents of A3 on 28/06/07 (Ext.P47). No Test Identification Parade was conducted. Nobody identified A3 in Court. MO18, the dress of A3 also was not identified. It was recovered from some other place, not from the rented house of A3 as alleged by the prosecution. The phone call details of A3 were not produced. Blood stain in the knife was insufficient to determine the group or at least to confirm human origin. For creating 6 Crl.A.No.628/2013 & conn.cases additional circumstances against A3, a fake complaint was lodged by PW9, the father of the deceased alleging that A3 and others intimidated him. From a reading of the deposition of PW89 and PW9, the falsity of the complaint is evident as the date of alleged intimidation is prior to the incident. Another evidence prosecution tried to establish against A3 was an extra-judicial confession alleged to be made by A3 to PW41. PW41 gave the statement to the Investigating Officer four months after the incident i.e., on 26/06/07. PW41 deposed what appears to mean "we did it" where 'it' according to the prosecution, is the murder of the deceased. But the deposition of PW41 cannot at all be treated as an extra-judicial confession made by A3. It is not a reproduction of exact words. Question put to A3 by PW41 is not clearly made out. The conversation was not with reference to the present offence. It is a mere inference by prosecution. The phone and SIM card of A3 or PW41 is not recovered and produced in Court. Learned Counsel relied on Inspector of Police, TN v. Palanisamy @ Selvan (AIR 2009 SC 1012) to contend that extra-judicial confession is weal piece of evidence to convict the accused.
8. Learned Counsel for the sixth accused contended that the 6 th accused is innocent and the case charged against him is false and fabricated. No motive is attributed against him and his name was not mentioned in the FIS given by PW1. PW1 stated that all the accused persons in the dock were familiar to him. But he didn't mention the name of A6 in FIS which clearly shows that A6 is not involved in the crime at all. Even, time and place of incident is not clearly deposed by PW1. Chakkai-Kazhakkuttom bypass is well known to PW1. Even then PW1 failed to depose the exact place of occurrence. 7 Crl.A.No.628/2013 & conn.cases It is the version of PW1 that only one person inflicted injury on the deceased using sword. It is contrary to the FIS version of use of more than one sword. There is no case that weapons were destroyed by the accused. In that circumstance, the deposition of PW1 that A6 inflicted injury on the deceased using sword is unbelievable. The alleged arrest was much after the incident on 03/04/07. MO1 sword, allegedly recovered through Ext. P93(a) disclosure statement and MO6 shirt, allegedly recovered through Ext. P30 mahazar are fabricated. The FSL report Ext.P95 of MO1 sword didn't bring out the blood group. The entire case, according to the learned Counsel, is an unholy attempt to victimize an innocent young man.
9. Learned Counsel appearing on behalf of A7 argued that prosecution miserably failed to prove the case against the accused beyond reasonable doubt. No motive is even alleged by the prosecution against A7 for committing the murder. Deposition of PW1 is full of omissions and contradictions and his version is untrustworthy. He is an interested witness being the friend of the deceased. There was no Test Identification Parade. There is no reference in FIS as to how A7 escaped from the scene of crime. No incriminating material recovered at the instance of A7. The whole case is concocted and hence to be rejected.
10. The learned Senior Counsel representing A9, Shri. B. Raman Pillai contended that the case against A9 is totally false and the conviction is based on fiction, not on legal evidence. The accused herein, Omprakash, is a young man of good character. He is falsely implicated in so many cases by the police. The learned Counsel pointed out the evidence of DW1, a CBI officer, to prove 8 Crl.A.No.628/2013 & conn.cases one such instance where police arrayed A9 herein as accused in Muthoot Paul murder case and on investigation by the CBI, he was discharged and made as a witness. A9 was a leader of SFI, DYFI and SNDP Youth Movement. The retaliating attitude of police already affected the career of this young man. In the present case also A9 is falsely implicated. The incident allegedly happened on 20/02/07 at 12.15pm. In the FIS given by PW1, there were 3 named persons and there is no reference of A9 in it. In the remand reports of A1 & A2 and A4 & A5 which were on 07/03/07 and 17/03/07, there is no reference about A9. Only on 04/04/07, through Ext.P176 report, A9 was included in the array of accused for the first time. Of late, on 19/05/07 through Ext.P179 report, full address of A9 was furnished. The allegation is that A1 to A8 committed the overt acts and A9 to A11 along with other accused were involved in the conspiracy. In the charge, there is no animosity or motive alleged against A9. As far as A1 to A5 are concerned there are specific reasons quoted in the charge showing animosity against the deceased. The prosecution miserably failed to prove the circumstances pointed out by them to bring out the involvement of A9 in the criminal conspiracy. On the date of occurrence, A9 is alleged to have travelled to Bangalore in a flight soon after the incident. Prosecution alleges it as absconding and is trying to bring it as a circumstance against A9. But at that point of time A9 was not an accused and hence he cannot be said to be absconding. Another evidence brought forth was the call record details. It is alleged that A9 was using a phone connection with number 9895083382. But the said phone connection is not in the name of A9. Nothing is brought in evidence to show that A9 was using that phone during the 9 Crl.A.No.628/2013 & conn.cases relevant period of time. To prove that A9 had the phone connection 9895083382, a police constable was examined (PW49). There are no call history details to show that A9 called PW49 or vice versa. Service provider was not examined. The phone chart submitted is not certified and hence inadmissible. No question is put to witnesses regarding any call by A9 to any accused. PW46, Branch Manager of Akbar travels, Trivandrum was examined to prove air travel by A9 on the date of incident. According to PW46, the traveller details reveal that the travellers were one Prakash and Krishnadas. He also deposed that it is not possible to travel for another person in the name of Prakash or Krishnadas. Ext.P99 is the pay slip of Air International. No investigation was conducted as to the identity of the said Krishnadas. So, prosecution has failed completely to prove that A9 travelled in the said flight to Bangalore and hence the allegation of absconding. Another circumstance that the prosecution tried to prove against A9 was the writing "O.P" over a diary which was allegedly handed over by A5 to one Deepu and the said Deepu further handed it over to his mother Sudha. The said words "O.P" was allegedly written by A5. Ext.P118 is the paper slip. Ext.P116 is the recovery mahazar. There is no evidence to show that the said words "O.P" was written by A5. Out of four attesters, nobody was examined. Only the scribe who is a police constable was examined. PW89 did not put the said writing for examination by handwriting expert. Without examining Deepu and Sudha, there is no probative value for the said recoveries. The evidence adduced are not sufficient to prove the connection between A5 and A9. PW9 is the father of the deceased. He lodged P10 FIR on 25/06/07 for intimidation by some of the 10 Crl.A.No.628/2013 & conn.cases accused in this case. There is serious discrepancy with regard to date of incident, complaint and lodging of FIR in the said intimidation case. Defence marked those omissions. PW82 was examined to show that police investigated the crime and charge sheet was submitted in Ext.P10 complaint. PW48 and other witnesses turned hostile to the prosecution. According to the learned Senior Counsel, the burden is upon the prosecution to prove beyond reasonable doubt all the chain of circumstance pointing to the guilt of the accused. In the case at hand, prosecution completely failed to prove the alleged air travel and absconding, ownership or the use of mobile phone by the accused during the relevant time. Nothing is available on record to bring in A9 under the purview of S.120B of the IP Code. The learned Counsel relied on the decision of the Apex Court in Paramjeet Singh @ Pamma v. State of Uttarakhand (AIR 2011 SC 200), Mustkeem alias Sirajudeen v. State of Rajasthan (AIR 2011 SC 2769) and K.R. Purushothaman v. State of Kerala (AIR 2006 SC 35).
11. The learned Senior Counsel for A10, Shri. K. Gopalakrishna Kurup argued that A10 is totally innocent and he is falsely implicated in this case at the instance of PW89 Mahesh, the then Circle Inspector of Police, Pettah Police Station and the Investigating Officer herein. The marriage of A10 with the daughter of a prominent political leader in Thiruvananthapuram took place at the instance of PW89. Later, that relationship got strained and ended up in divorce. A10 has a strong argument that PW89 is keeping grudge against him. A10 approached the then Additional Chief Secretary, Home Department, with a complaint that the said IO need to be kept away from investigation of this case 11 Crl.A.No.628/2013 & conn.cases and an independent agency need to be directed to investigate the crime. Ext.D4 is the complaint given by A10 seeking re-investigation. Since A10 was arrayed as an accused in this crime, he filed Crl. M. C. before the High Court of Kerala. The date of incident is 20/02/07 and A10 was arrayed as an accused on 04/04/07 only. As per the direction of the High Court, A10 surrendered before PW89 on 04/06/07. According to the Senior Counsel, there is nothing brought forth by the prosecution to connect A10 either with conspiracy or with the overt act. There is absolutely no evidence even to show that A10 met the deceased. The only evidence on record which connects A10 with the crime is the improved version of PW9, the father of the deceased. It is full of embellishments and improvements from his earlier version and hence not reliable and liable to be discarded. Wholesale marking of 164 statement is illegal. The Court below relied on those 164 statements to convict the accused. 164 statement can be used only to corroborate or contradict the witness. Counsel relied on the decision of this Court in State of Kerala v. Thomas (2005 KHC 1823). Mobile phone call details are tendered as an evidence to prove the involvement of A10 in the crime and his contacting with other accused. According to the Senior Counsel, prosecution failed to connect the mobile number 9447117582 with A10. No evidence is tendered to show that other accused contacted A10 in the said mobile number. Ext. P74 report from BSNL shows that the connection is in the name of Mr. T. Devarajan. Neither the phone, nor the SIM card nor application form for availing network connection nor ID proof submitted for it is recovered or tendered in evidence. The only attempt by the prosecution to link A10 with the said mobile number was the 12 Crl.A.No.628/2013 & conn.cases evidence of PW79, Manager, Marikkar Motors, Thiruvananthapuram. Ext.P100 is a job card marked through him. It is a bailment chit of Lancer car of A10. In Ext.P100, a land line number and the above mobile number were given for contacting the owner. Though it is called for from an independent source, according to the learned Senior Counsel, it cannot be relied upon. In 313 examination of A10, in his additional explanation, as reply to question number 427, it is stated by A10 that the landline number in the job card is his but the mobile number is not his. In reply to another question under 313 as to whether A10 used the mobile number, he denied it emphatically. It is alleged that bank account details of A5, Karate Suresh was found in the cover of a diary which was recovered based on the disclosure statement and at the instance of A10. Two payments were shown to be made by A10 to the said account. Two withdrawals were done from the said account and one ATM withdrawal was from Mysore. According to A10, whether that account was that of A5 or not is not proved by the prosecution. These circumstances are not enough to incriminate A10. The Court below erroneously relied on unproved documents to record an adverse finding against A10 to that effect. PW15 was examined by the prosecution to prove that the vehicle was hired for the commission of the crime. But he turned hostile to the prosecution. According to the learned Senior Counsel, the evidence of PW14 need to be read together with the evidence of PW7 and PW81. PW7, the brother of PW14 was the first informant in Crime Number 19/07 which happened on 23/01/07 in which PW14 was attacked. In that FIS, name of A10 was not there. In Ext.P7 series documents, in P7(c) Sl.No. 103, it is shown that A10 in the present case was arrayed as an 13 Crl.A.No.628/2013 & conn.cases accused in that case based on the report given by PW89. That fact is deposed by PW81, CI of Police, Thumba Police Station. Since A10 was arrayed as an accused in this crime, he was forced to approach the High Court with Criminal M. C. It is alleged that the phone calls between the accused were completely stopped after the date of murder. According to the learned Senior Counsel, for attracting offence under S.120B of the IP Code prior meeting of mind and agreement is essential. Agreement constitutes the crime of conspiracy. Doctrine of agency under S.10 of the Evidence Act also comes into play. In this case the prosecution thoroughly failed to prove criminal conspiracy. Learned Senior Counsel relied on the following decisions to support his arguments:
Bhagwan Swarup v. State of Maharashtra (AIR 1965 SC 682), John Pandian and Ors. v. State represented by Inspector of Police, Tamil Nadu (2010) 14 SCC 129) and State of Karnataka v. L. Muniswamy and Ors. (AIR 1977 SC 1489). It is argued that, mere knowledge or discussion is not enough to prove conspiracy. A few bits here and there cannot form the basis of conviction. It is alleged by the prosecution that Surya Tourist Home near Ayurveda College, Trivandrum, house at Muttathara, Trivandrum and rented house at Savakkottaparambu, Punalur were the places where conspiracy took place. But absolutely nothing is brought in evidence by the prosecution to prove that the places mentioned above were places of alleged conspiracy. The case against A10, in its totality is without any basis and full of falsehood and hence rightly to be rejected in toto.
12. Learned Counsel appearing on behalf of A11 contended that his client is totally innocent. The case is a fabricated one. Depositions of PW11, 14 Crl.A.No.628/2013 & conn.cases PW13, PW15 and PW75 are hearsay evidence and hence cannot be accepted or relied on. PW15 even turned hostile to the prosecution. There is no evidence to show that PW13 had handed over the Scorpio car allegedly involved in the incident, to A11. PW15 only has a hearsay version, no direct knowledge.
Ext.P16 is the 164 statement given by PW15. It is marked completely, which is an illegality. There is no evidence for the taking place of alleged conspiracy at Muttathara house. PW15 deposed about the name of one Suresh, and it is still unknown who he actually is. There is absolutely no evidence to connect A11 with either the hiring of the vehicle or with any of the transaction in connection with the alleged conspiracy in the case.
13. On the other hand, the learned Public Prosecutor argued that there is enough evidence available against the accused. Ext.P1, FIS was registered soon after the incident and it was given by PW1 who is an injured witness. The name of A3 is mentioned in it. Though PW1 did not identify A3 in the Court, it is obvious from records that it was due to fear. PW3 in his deposition named A3 as one of the assailants though he turned hostile to the prosecution. That too is because of threat from accused and fear of dire consequences. On 20/06/07, A3 was arrested. Ext. P46(a) disclosure statement led to the discovery of knife. Ext. P47(a) disclosure statement led to the recovery of dress of A3. Ext. P92 report shows that the weapon is blood-stained. Another important circumstance showing the enmity of A3 towards the deceased is proved by the deposition of PW14 who was a close friend of the deceased. He was attacked by a gang including A3 on 23/01/07 and an FIR is registered. During the said attack assailants told PW14 that the attack was a marriage gift to the deceased 15 Crl.A.No.628/2013 & conn.cases Krishnakumar whose marriage was to be held on the next day. PW9, father of the deceased was threatened by A3 and others. Ext.P10 is the FIR lodged for the same. In the said case, A3 is charged with S.149 of IPC which shows that there were involvement of five or more persons. From the deposition of PW9 it is clear that the reason for not immediately lodging complaint was fear. Another important evidence available against A3 was the extra-judicial confession made by him to PW41. The conversation between them was about the murder of the deceased in this case and to the query of PW41, A3 said "We did it". The context of the conversation reveals that the said confession was referring to the murder of Krishnakumar. A close reading of the conversation deposed by PW41 clearly shows A3's admisssion of the guilt. According to the learned Prosecutor, if extra-judicial confession is found credible, it can safely be relied on. In this case it is credible and he placed reliance on the decision of the Apex Court in Podyami Sukada v. State of M.P (2010 KHC 4488).
14. As far as A6 is concerned, there is direct evidence of PW1 and his identity is clearly proved. A6 was arrested on 03/04/07 along with A5 and A7. From the date of incident (20/02/07) till the date of arrest (03/04/07) the accused were absconding. In FIS, PW1 clearly stated that apart from named accused, he could identify other assailants also by sight. He deposed that A6 inflicted cut injury on the deceased using MO1 sword. A6 was wearing MO6 shirt at the time of incident. He identified A6 in the Court. The said sword was recovered at the instance of A6 by the Investigating Officer PW89, based on his disclosure statement Ext. P93(a). Ext. P95 FSL report shows that MO1 is blood stained. Call Details Records of the accused, particularly the short duration 16 Crl.A.No.628/2013 & conn.cases calls between A5 and A6 soon after the incident, is yet another evidence of their conduct. A5, A6 and A7 were arrested together from a lodge and it is also a circumstance against A6. According to the Prosecutor, involvement of A6 is perfectly established from the available evidence.
15. Involvement of A7 in the crime is proved by PW1 who is an eye witness. He identified A7 as one of the assailants who was standing near the Scorpio car and shouting. He identified A7 in Court. PW1 further deposed that he identified A7 from among 8-10 people in Pettah Police Station. He came to know the name of A7 only at that time. Before the said identification, he had seen the accused at the time of incident. The wearing apparels of A7 (MO8 and MO9) were also identified by PW1. These evidence, according to the Prosecutor, unerringly points to the guilt of A7, and his direct involvement in the crime is proved by the prosecution beyond reasonable doubt.
16. The learned Public Prosecutor argued that the offence of criminal conspiracy is proved against A9, A10 and 11 beyond any doubt. PW14 in his deposition stated that on 23/01/07 there was an attempt on his life by some of the accused in this case and the said attack was due to his friendship with the deceased Krishnakumar. Krishnakumar himself told the above-said reason to PW14. During cross-examination of PW14, it was brought out by the defence that there were two goonda groups in and around Kazhakuttom - one led by the deceased Krishnakumar and the other faction led by Karate Suresh who is A5 herein. In that aspect, PW14 explained in his re-examination who all were there in the rival group led by Karate Suresh as goondas. PW14 clearly deposed that A9 and A10 were members of the rival gang of the deceased. 17 Crl.A.No.628/2013 & conn.cases A10 was identified by PW14 in Court. PW9 is the father of the deceased. He deposed that Krishnakumar himself told him that A9 and A10 declared that in any event they would kill him (the deceased) and A9 and others were trying to attack him. The said statement of the deceased can be treated as a dying declaration under second limb of S. 32(1) of the Indian Evidence Act which throws light into the circumstances of the transaction which resulted in Krishnakumar's death. Learned Prosecutor relied on the decision of Pakkala Narayan Swamy v. King Emperor (AIR 1947 PC 39). PW9 identified A9 and A10 in the Court. PW9 explained that the reason for not revealing the fact of the said intimidation to others was fear of life of him and his family members. PW49 stated that A9 is his relative and they were in contact. Though not certified, phone call details of A9 also prove the consistent and continuous contact of A9 with the other accused. Hence his involvement in the crime as a key conspirator is proved beyond reasonable doubt.
17. After the incident, A10 was absconding. Ext.P58 is the account opening form and other details of A5's HDFC Bank account. A10 deposited money in A5's account twice and A5 had withdrawn money from the said account from Mysore. The phone number given in Ext. P100 job card is 9447117582 and is used by A10. It is in the name of Mr. T. Devarajan, father of A10. Ext.P80 is the call details of A10. Ext.P81 is the call details of A5. Perusal of both would clearly show that there is constant and continuous communication between A10 and A5. After 20/02/2007, all calls stopped, which by itself is an additional circumstance. With regard to adding of A10 in Crime No. 19/07 of Thumba PS, it is usual practice of the police department to 18 Crl.A.No.628/2013 & conn.cases pass on information to other investigating officers. There is nothing unnatural in adding name of A10 in the said crime based on the credible information received from another investigating officer. During cross examination of PW14, he deposed that the deceased Krishnakumar had told him earlier that the attack on PW14 on 23/01/07 was due to the enmity of assailants against the deceased Krishnakumar.
18. It is argued that the deposition of PW11, PW13, PW14, PW15 and PW75 when read together fixes beyond doubt, the involvement of A11 to the crime. The recovery of the Scorpio car was on 22/02/07. Ext.P27 is the seizure mahazar. Ext.P95, FSL Report shows that blood group of the deceased was B+ve and it was found in the car. Ext.P94 report marked through Asst. Director, Explosives, Thiruvananthapuram reveals that explosive remnants were found and traced from the Indica car. Also, wheel base marks at the scene of occurrence are 1.24m in Ext.P6 mahazar. Scorpio car herein also has exactly the same wheel base length i.e., 1.24m. It clearly proves that the vehicle was involved in the crime. PW11 is a retired school headmistress. She deposed that the Scorpio car was bought by her to help Surjith, her son's friend. Surjith used the said vehicle for rent-a-car business. She identified A11 in the Court. She also identified CW47 Pradeep(PW15) also as he was present in the Court at that time. It is her version that PW15 and A11 came to her house 5 months after police questioned her on the incident. She got release of the vehicle on bond only after that. PW13 deposed that PW15 is his friend and PW15, in the initial days of February 2007 enquired him about the availability of a vehicle like Qualis or Scorpio. Accordingly, PW13 approached PW75 19 Crl.A.No.628/2013 & conn.cases Naziruddin and arranged the Scorpio car involved in the crime to PW15. PW13 further submitted that after the crime, for the queries of PW13 about the vehicle, PW15 replied him that the said vehicle got involved in a murder case. Later PW15 revealed that the Scorpio car was given to A11. It is his further deposition that while giving statement to police he was not aware about the involvement of A11 in the crime. He also identified A11. These depositions clearly proves the fact that A11 approached PW15 Pradeep and through him approached PW13 Ganesh Babu for obtaining a vehicle like quails or scorpio and he in fact obtained the possession of the Scorpio car involved in the crime. Though PW15 turned hostile to the prosecution, he admitted that he contacted A11 on the instruction of one Suresh to procure a vehicle on rent. PW75 deposed that he knew both PW13 and PW15. He also deposed that he arranged the vehicle for PW15 at the request of PW13 on 03/02/07. It was rented for 4- 5 days. Even after 5 days, the vehicle was not returned. Surjith, hence contacted PW75 and PW75 contacted PW13. PW13 told that the vehicle will be returned on 20/02/07. It is the deposition of PW75 that after the incident, on enquiry by them, PW13 Ganesh gave the number of one Venukkuttan (A11) to him. Number begins with 92 and ends with 6209. The said number was switched off. PW13 Ganesh also told PW75 that he was told by PW15 Pradeep that he gave the hired vehicle to one Venukkuttan (A11). PW75 and Surjith met PW15 and asked him to release the vehicle soon. PW11 Remani Teacher took a stand that she will stand as a surety only after meeting people who hired the vehicle. Accordingly, PW15 and A11 went to PW11's house. It is clear from the deposition of PW11 that the said visit by A11 and PW15 happened 5 20 Crl.A.No.628/2013 & conn.cases months after the incident. PW75 also identified A11 in the Court. After one month, he identified MO16 key of the car in the police station, which was recovered at the instance of A5, Karate Suresh. Ext.P116 is the seizure mahazar of MO16. Ext.P90 certificate proves that the key was of the Scorpio car. Telephone call details also conclusively prove the frequent contacting of A11 with other accused in this case and hence the involvement of A11 is proved beyond doubt.
19. That Krishnakumar died on account of the incident described by PW1 and PW2 on 20.2.2007 cannot be disputed. It is in evidence that the Indica car in which Krishnakumar, PW1 and PW2 were proceeding towards Kazhakootam, was blocked by a Scorpio car. Bombs were thrown towards the Indica car. Krishnakumar along with PW1 ran away for life. The assailants who came in the Scorpio car followed Krishnakurmar. PW1 fell down while he was running and he hid behind the bushes. PW2 sustained head injury due to the explosion of bomb. The assailants chased Krishnakumar and inflicted several injuries. After the assailants left, PW1 came back to where Krishnakumar was lying. The police on getting information came to the scene of occurrence and Krishnakumar was taken to the hospital, where he died. Ext.P85 is the postmortem certificate issued by the Doctor who conducted autopsy. The Doctor was examined as PW67, who opined that the deceased suffered 20 ante-mortem injuries and death was due to the head injury inflicted on him. There were 7 injuries on the head of the deceased which were fatal. She deposed that injury Nos. 1 to 8 could be caused by heavy cutting weapons like MO1 sword and MO2 to MO4 choppers. Injury No.18 could be caused by MO1 21 Crl.A.No.628/2013 & conn.cases sword and injury No.19 by tip of MO1 sword. It is also in her evidence that injury No. 6 and 7 could be caused by MO2 to MO4 while the victim was running and the attack was from behind. Therefore there is sufficient evidence to prove that the deceased succumbed to the injuries which were inflicted by the assailants who came in the Scorpio car on the fateful day.
20. Now we have to consider whether any of the accused who faced trial were involved in the crime. PW1 had deposed that the assailants were accused 1, 2 and 4. PW1 also identified the 6 th accused as one among the assailants. He also identified MO1 sword and MO2 to MO4 choppers being used by the assailants. However, he did not identify the 3 rd accused before Court. PW2 who was driving the Indica car at the relevant time deposed that they were attacked by accused 1, 2 and 4. In other words, PW 1 and 2 did not identify the 3rd accused as among the persons who formed part of assailants. PW1 is the first informant. Ext.P1 is the first information statement (FIS) given on the same day of incident that is on 20.2.2007, based on which Ext.P1(a) (FIR) was prepared by the Sub Inspector of Police. In Ext.P1, PW1 had stated that A3 was also present. While being examined as PW1, he did not say anything about the presence of A3. He however identified A6 and A7 from among them. He did not identify anyone else. He deposed that A6 had inflicted injury on Krishnakumar. He also deposed that he knew a person by name Kochuvava (A3) mentioned in Ext.P1. Ext.P1 was given 10 minutes after the incident. Though he stated that A3 is present in Court, he had not informed to the Police regarding any overt act done by Kochuvava. With permission of court he was cross examined. He deposed that he does not 22 Crl.A.No.628/2013 & conn.cases remember that he had stated to police about A3 throwing a bomb. PW2 says that he only knew accused 1, 2 and 4 and he could not identify other assailants. PW3, though he admitted that he was travelling along with PW1, PW2 and Krishnakumar in the same car, has not identified any of the accused. He only stated that another car overtook their car and stopped the same and a person came and hurled a bomb and he could not see the others. He however admitted the fact that he had given a statement to the police that suddenly Peeli Shibu, Kannadi Arun, Kochuvava (A3) and Arun (A7) threw a bomb towards them. Therefore PW1 alone is the eye witness who had stated about the presence of accused 6 and 7 at the time of the incident. The court below found that the evidence of PW1 was sufficient to hold the involvement of accused 6 and 7 to the incident. From the evidence of PW1, the involvement of accused 6 and 7 is rather clear. Further there is evidence to prove recovery of MO1 at the instance of the 6 th accused. MO1 sword was recovered as per Ext.P93 mahazar, on the basis of Ext.P93 (a) disclosure statement of the 6 th accused. PW74 is a witness to the said recovery. The weapon was subjected to scientific analysis by PW76. MO1 contains stains of blood and it was found to be of human origin. PW76 Assistant Director, Forensic Science Laboratory, Thiruvananthapuram examined both the vehicles. He found powder and sulphur mixture in the Tata Indica car. These materials were collected from the top surface of car, its bonnet, windscreen glass and tyres. Such materials were also collected from the Scorpio car. The remnants detected were mixture of potassium chloride, aluminium powder and sulphur from both vehicles. Ext.P94 is the certificate with regard to the same. He also proved Ext.P95 report 23 Crl.A.No.628/2013 & conn.cases received from Serology Department, Thiruvananthapuram which relates to the parcels containing remnants like, broken glass pieces with black coloured film attached and grey, light blue and green coloured thin sheets and also some empty plastic bottles collected from the place of occurrence which contains potassium chloride, aluminium power and sulphur.
21. Coming back to the conviction of the 3rd accused, though PW1 and PW2 did not identify him, prosecution relied upon the recovery of incriminating materials on the basis of his confession statement and the extra-judicial confession he had given to PW1.
22. Learned counsel for the appellant contended that the extra judicial confession cannot be taken as evidence on account of the fact that the statement allegedly given by A3 to PW41 cannot be accepted in evidence under Section 24 of the Indian Evidence act. First, let us examine in detail the evidence of PW41. He is the District Secretary of BJP Youth wing (Yuva morcha). He has identified the 3 rd accused as a party worker. He further deposed that he knew about the death of Krishnakumar. On 20.02.2007 by about 3 pm, A3 along with another person had come in a motor bike. They asked for some money for their travel. He gave money without making any queries. After they left he received information about the aforesaid murder from a party worker. He also understood that there was doubt that A3 was also involved in the said incident. PW41 called A3 and asked him about the incident. He said "we did it". PW41 offered help to A3 for his surrender before the police. They contacted him 2-3 times. Thereafter A3 did not call. He also deposed that deceased and A3 were on loggerheads and this information was 24 Crl.A.No.628/2013 & conn.cases given to him by the party worker who called. Though he was cross examined, nothing has been brought out to discredit this witness.
23. It is settled law that extra-judicial confession possesses a high probative value as it emanates from the person who commits the crime. But while appreciating the said evidence, the Court has to be convinced that it is free from any suspicion. In this case as rightly pointed out by the learned counsel for the appellant, accused had only stated that "we did it". But we have to analyse the deposition of PW41 in its entirety. PW41 receives information about the death of Krishnakumar. Before that, A3 had approached him asking for money. He gave him some money. After A3 left, he received a call from his party worker about the incident which apparently was the incident in which Krishnakumar was murdered. The party worker entertained a doubt regarding involvement of A3. PW41 then called A3, apparently to find out whether A3 was involved in the crime and the answer of A3 was that "we did it." From the above conversation, PW41 clearly understood that A3 was also involved in the incident. That is the reason why he asked A3 whether A3 requires any help to surrender before the police. Here the extra-judicial confession is made by A3 to PW41, which is immediately after the commission of crime. The fact that PW41 knew about the involvement of A3 is clear from the fact that he offered assistance to surrender before the police. The Apex Court in Narayan Singh v. State of Madhya Pradesh (AIR 1985 SC 1678) held that the evidentiary value of extra-judicial confession depends on the nature of the circumstances, the time when the confession was made and the credibility of the witness who speaks to such confession. The main argument of 25 Crl.A.No.628/2013 & conn.cases the learned counsel for the appellant is that, police had not investigated on the telephone details of PW41 and the number in which he had called A3. The defence does not have a case that PW41 did not have a phone and that he had not contacted A3. During cross examination, a general suggestion alone has been asked to the witness. It was suggested that he was deposing untrue facts, which he denied. But there is no cross examination regarding the fact that PW41 had called A3. The learned counsel for the appellant further argued that even assuming that PW41 had spoken to A3, the answer given by A3 is "we did it", which by itself does not amount to an extra-judicial confession admitting murder of Krishnakumar. But it is relevant to note that PW41 questioned A3 about the murder of Krishnakumar. PW41 wanted to know whether A3 was involved in the murder and when the answer is "we did it"
PW41 understood that A3 was involved in the crime. Learned counsel placed reliance upon the decision of the Apex Court in Palanisamy @ Selvan (supra). That was a case in which the Court did not rely upon the extra-
judicial confession since after knowing about the incident on 12.6.1991, PW3 did not take any steps to make the accused surrender before the Police and the statement was not recorded in writing. PW3 had gone to the Police Station only in the night on 12.6.91 and informed the police about the extra-judicial confession. That was a case in which the Apex Court was only approving the judgment of High Court in a particular set of facts. It is needless to state that each case depends upon its own facts. In the case on hand, PW41 knew about the incident from a third party who doubted the involvement of A3. To ascertain the correctness of said information, PW41 called A3 who stated that 26 Crl.A.No.628/2013 & conn.cases "we did it". There is no reason to doubt the genuineness of the confession made by the 3rd accused to PW41.
24. In Ratan Gond v. The State of Bihar (AIR 1959 SC 18) a three Judge bench of the Apex Court had occasion to consider the evidentiary value of extra-judicial confession. The Apex Court observed that two questions arise regarding the extra-judicial confession. One is whether it is voluntary, and if so, is it true. It is further held that usually and as a matter of caution courts require some material corroboration to an extra-judicial confessional statement, corroboration which connects the accused person with the crime in question. If the circumstances proved against the accused afford sufficient corroboration to the confessional statement, it could be held that the confession statement is voluntary and true. In that case there was recovery of a blood-stained "balua", though the origin of the blood could not be determined owing to disintegration, it was held that such circumstances may not be sufficient themselves to prove that the accused was the murderer, but it lend assurance to the confessional statement of the accused, assurance of a kind which connects the accused to the crime in question. The Apex Court also observed the fact that soon after the murder the accused disappeared from his village and arrested in another village, which conduct would show he is suffering from a guilty mind. Another three Judge bench of the Apex Court in Mulk Raj v. State of U.P (AIR 1959 SC 902) had occasion to consider the scope and effect of the extra-judicial confession. That was also a case of culpable homicide amounting to murder. One of the questions considered was relating to the acceptance of extra-judicial confession. It was held that an 27 Crl.A.No.628/2013 & conn.cases extra-judicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused and the confession will have to be proved just like any other fact. The value of the evidence has to be considered depending upon the veracity of the witness to whom it is made. Normally the court required the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the court should not accept the evidence, and it is possible for the court to accept the evidence even if the substance of the confession statement were given. That was also a case in which the Court relied upon the circumstantial evidence and the extra-judicial confession made by the accused to confirm the conviction under Section 302 of the IPC.
25. Yet another circumstance against the 3rd accused is the recovery of a material object. A3 was arrested on 20.6.2007 and he had given a disclosure statement on the same date. Recovery was not affected on that day. He was produced before the Magistrate on 21.6.2007 and was in judicial custody. Initially the allegation was that he hurled bombs. He was taken to police custody on 26.6.2007. On the basis of information given by him, a knife concealed under a bridge was recovered as per Ext.P46 mahazar, and the dress he was wearing at the relevant time was recovered as per Ext.P47 mahazar. Ext.P46(a) and P47(a) are the disclosure statement. Ext.P92 report shows that the weapon was blood stained.
26. It is also relevant to note that in the first information statement given by PW1 the name of A3 was specifically mentioned. But he did not identify A3 while being examined as PW1. The court below observed that the 28 Crl.A.No.628/2013 & conn.cases reason for not giving the name of A3 by PW1 might be on account of fear as the incident itself is the result of a gang fight. The close association of PW1 with the deceased by itself might be a reason for the assailants to threaten the members of the other group. In Gura Singh v. State of Rajasthan (2001 KHC 1019), the Apex Court held that merely for the reason that a witness is declared hostile, it cannot be stated that the entire evidence is washed out from the record. It is for the court to consider in each case whether as a result of such cross examination and contradiction, the witness stands discredited or still can be believed in regard to any part of the testimony. Taking into account the fact that A3 had admitted to PW41 about his involvement in the crime, followed by recovery of the knife under Section 27 of the Indian Evidence Act proves the involvement of the 3 rd accused. We don't see any reason why a different view should be taken in the matter.
27. As far as the 6th accused is concerned, his only contention is that his name has not been stated in the FIS. PW1, in fact has clearly identified A6 in box and had stated that he was part of the gang and the overt act committed by him has also been stated. His statement is that he had seen a person inflicting an injury on the neck of deceased Krishnakumar and he identified the said person as A6. He further stated that one person alone had used a sword and that is the reason why he could remember him. He also identified MO1 sword which was used by A6. During cross examination he stated that he had come to know the name of 6 th accused from Pettah Police Station and he had seen A6 for the 1 st time when Krishnakumar was being attacked. The 6th accused was arrested on 3.4.2007, and on the basis of 29 Crl.A.No.628/2013 & conn.cases disclosure statement Ext.93(a), MO1 sword was recovered. The sword was blood stained and Ext.P93 is the FSL report regarding the same.
28. As far as A7 is concerned, he is also a person who had been identified by PW1 as one of the assailants. PW1 deposed that among those who hurled crude bombs at Indica car, A7 was there and he hurled bomb at them. He also identified MO8 and MO9 as the dress (shirt & pant) worn by A7 at that time. He also deposed that at the time when Krishnakumar was being stabbed continuously, some persons who were standing near the Scorpio car was shouting. PW1 identified A7 as one of the persons who was standing near the Scorpio car. There was another person who was not facing him and he could not see him properly. The persons who were standing near the Scorpio car was shouting to others to come back if it is over. They said "കഴ ഞ ങല കകറ വ ." After inflicting injury on the victim they immediately got into the Scorpio car. Therefore the evidence of PW1 clearly indicates that A7 was part of the gang which inflicted injury on the deceased.
29. A9, A10 and A11 have been implicated for the aforesaid murder as persons who had conspired for the commission of the crime. Before proceeding further it will be useful to refer to the judgments relied upon by the respective counsels.
(i). Mustkeem alias Sirajudeen v. State of Rajasthan ( AIR 2011 SC 2769). In this judgment the Apex Court held at paragraph 25 as under:
"25. It is too well settled in law that where the case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or 30 Crl.A.No.628/2013 & conn.cases the guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relating to circumstantial evidence, which has been well settled by law by this Court."
(ii) Paramjeet Singh @ Pamma v. State of Uttarakhand (AIR 2011 SC
200). In this case the Apex Court held at paragraphs 11,14, 32, 33, 34 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions."
Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide : Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab v. Jagir Singh Baljit Singh and Anr., AIR 1973 SC 2407; Shankarlal 31 Crl.A.No.628/2013 & conn.cases Gyarasilal Dixit v. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy and Ors. v. State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta and Ors. v. State of West Bengal, (2007) 12 SCC 230)."
"14. Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, this Court observed that it is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under :
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
"32. In Matru @ Girish Chandra v. The State of U.P., AIR 1971 SC 1050, this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person, observing as under (Para 15) :32
Crl.A.No.628/2013 & conn.cases "The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."
33. A similar view has been reiterated by this Court in Rahman v. State of U.P., AIR 1972 SC 110; State of M.P. v. Paltan Mallah and Ors., AIR 2005 SC 733 : (2005 AIR SCW 455); and Bipin Kumar Mondal v. State of West Bengal, JT 2010 (7) SC 379 : (AIR 2010 SC 3638 : 2010 AIR SCW 4470).
34. Abscondance by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, mere abscondance by the appellant after commission of the crime and remaining untraceable for a period of six days itself cannot establish his guilt. Absconding by itself is not conclusive proof of either of guilt or of a guilty conscience."
(iii) K.R. Purushothaman v. State of Kerala (AIR 2006 SC 35). In this case the Apex Court held in paragraph 18 as under:
"18. ..............To constitute a conspiracy, agreement 33 Crl.A.No.628/2013 & conn.cases between two or more persons for doing an illegal act, or an act by illegal means, is a sine qua non. Although the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence. Whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn. ......"
(iv) Bhagwan Swarup v. State of Maharashtra (AIR 1965 SC 682) In this case the Apex Court held in paragraph 8 as under:
"8. .............The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence : it can be established by direct evidence or by circumstantial evidence. But S. 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co- conspirators. The said section reads :
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. "
This section, as the opening words indicate, will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there 34 Crl.A.No.628/2013 & conn.cases should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-
conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression "in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything, said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it". It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy. In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the 35 Crl.A.No.628/2013 & conn.cases conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour."
(v) John Pandian v. State of Tamil Nadu [(2010) 14 SCC 129]. In this case the Apex Court held at paragraphs 107-116 as under:
"107. The law on conspiracy has been stated time and again by this Court. In Major E.G. Barsay v. State of Bombay, Subba Rao, J. observed: (AIR p. 1778, para 31) "31. ... The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act."
108. In Halsbury's Laws of England* the definition of conspiracy is as under:
"58. Meaning of conspiracy.--Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law....
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. ... and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be."
109. In American Jurisprudence, 2nd Edn., Vol. 16, p. 129, the following definition of conspiracy is given:
"A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful... The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy."
110. Lastly, in the celebrated case of Kehar Singh v. State (Delhi Admn.) it was observed by Jagannatha Shetty, J.: (SCC p. 731, para 271) "271. ... 'The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or 36 Crl.A.No.628/2013 & conn.cases even discussion, of the plan is not, per se, enough.'**"
(emphasis ours)
111. In the celebrated judgment of State v. Nalini S.S.M. Mohd. Quadri, J. relying upon Van Riper v. United States observed:
"When men enter into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime."
112. Other celebrated decisions on the question of conspiracy are Yash Pal Mittal v. State of Punjab as also State of H.P. v. Krishan Lal Pardhan. It has been held in Mohd. Khalid v. State of W.B. and in Mohd. Usman Mohd. Hussain Maniyar v. State of Maharashtra that the agreement amongst the conspirators can be inferred by necessary implication. All these cases together came to be considered in State (NCT of Delhi) v. Navjot Sandhu where even the celebrated judgment of V.C. Shukla v. State (Delhi Admn.) came to be considered wherein it was observed by Fazal Ali, J.: (V.C. Shukla case, SCC pp. 669- 70, para 8) "8. ... in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence."
(emphasis supplied)
113. It is significant at this stage to note the observations in V.C. Shukla wherein it was laid that in order to prove criminal conspiracy, there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. It was further held that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
114. Relying on V.C. Shukla case, Pasayat, J. in Esher Singh v. State of A.P. observed that: (Esher Singh case, SCC p. 607, para 38) "38. ... the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done 37 Crl.A.No.628/2013 & conn.cases were in furtherance of the object of conspiracy hatched. The circumstances relied on for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy."
(emphasis supplied)
115. In Esher Singh case this Court held that the conspiracy was proved between the nine accused. A systematic role played by each accused was highlighted. Pasayat, J. in that judgment also considered the decision in Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra and observed that (Esher Singh case, SCC p. 606, para 37) "[t]here is no difference between the mode of proof of the offence of conspiracy and that of any other offence". The other decisions in State of Maharashtra v. Som Nath Thapa, Ajay Aggarwal v. Union of India as also Mohd. Usman case and Yash Pal Mittal were considered in that decision. The law laid down in Ajay Aggarwal case was reiterated and it was held that:
(Esher Singh case, SCC p. 610, para 45) "45. ... '8. ... It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy.
Conspiracy is conceived as having three elements: (1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.'***"
These decisions were thereafter considered in Navjot Sandhu case.
116. In K.R. Purushothaman v. State of Kerala a specific observation was made (SCC p. 631d-e) to the effect that all conspirators need not take active part in the commission of each and every conspiratorial act but, mere knowledge, even discussion, of the plan would not constitute conspiracy. It was further observed that (SCC p. 631e-f) each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible. We respectfully agree with the law laid down in Navjot Sandhu case and K.R. Purushothaman case."
30. It is pointed out that in the FIS given by PW1, there is no reference to A9. Of course PW1 cannot indicate at that point as to who were involved in the conspiracy. It is pointed out that even in the remand reports of accused 1, 38 Crl.A.No.628/2013 & conn.cases 2, 4 and 5, there is no reference to the involvement of A9. Only on 4.4.2007 by Ext.P176 report that A9 was included as an accused. The prosecution attempted to prove conspiracy and involvement of A9 on the allegation that he had travelled to Bangalore on flight soon after the incident, which according to prosecution is his abscondence and it proves his involvement. Yet another factor is the call details of phone No. 9895083382. It is pointed out that the said phone number is not in the name of A9. The prosecution relied upon the evidence of a police constable to prove that the phone number 9895083382 is that of A9. PW49 is a police driver of A.R camp. He had identified A9 as his relative. On 20.2.2007, he had come to the Judicial Magistrate of First Class-V, Thiruvananthapuram for giving evidence. After the case was over he found that his bike had some problem. In order to get assistance he called A9 from his number 9447753576. He deposed that the phone number of A9 was 9895083382. He called at about 12 noon. He was asked who he was. He was not identified. The recipient of the call said that he will call later. By around 3 pm, after repairing the bike, when he was proceeding to his house, he received a call in his mobile. He was asked the purpose for which the call was made. He informed that the vehicle is already repaired and he is returning. Thereafter he did not call back. The main contention of the 9 th accused is that glaring omissions were brought out in cross examination of PW49. He stated that he had not given any statement to Police that he used to receive calls from the other phone. He deposed that the SIM card ending with registration number 576 is that of his wife's, and he does not know whether the identity card given was that of his or wife's. He deposed that the number ending 382 39 Crl.A.No.628/2013 & conn.cases was given by his relative. It was given to him by stating that it was the number of Prakash (A9). It is pertinent to note that there is absolutely no suggestion to PW49 that the number ending 382 is not being used by the 9 th accused. The fact that he had called Om Prakash, the 9 th accused on 20.02.2007 by around 12 noon and talked for a few minutes, according to the defence, does not from part of the previous statement. But when PW49 has not been cross examined to indicate that the number ending 382 was not being used by A9, the only inference that can be drawn is that A9 was using mobile number ending with 382. However, as rightly pointed out by learned counsel for A9, there is no evidence to prove the travel of A9 to Bangalore. PW46 was examined to prove the said fact. He is the Branch Manager of Akbar Travels, Thiruvananthapuram. He proved the bill dated 20.02.07 Ext.P49. He deposed that one Krishnadas and Prakash had purchased ticket from Thiruvananthapuram to Bangalore on Jet Airways flight on 20.02.2007. He however stated that he does not personally know Prakash. In cross examination he further reiterated that he does not know the passengers.
31. Learned Public Prosecutor submits that from the evidence of PW14 it can be discerned that there are two rival groups of goondas in the locality. One was led by the deceased Krishnakumar and other by A5 who is known as Karate Suresh. According to PW14, accused Nos. 9 and 10 were members of Karate Suresh gang. PW9 in his evidence deposed that Krishnakumar had told him that A9 and A10 had declared that some of the members of the rival gang had threatened him that he will be killed. In his deposition he stated that his son had told him that there was threat to his son (the deceased herein) from 40 Crl.A.No.628/2013 & conn.cases Karate Suresh and others. His deposition was as follows: "5-6 ക ര കര ഞ സ കരഷ , അര ണ, ഞക ച വ വ, ല , 3D അര ണ എന വര തഞന ഞക ല ല ഞ ന ഭ ഷണ ഉഞ!ന കന റ #." He further deposed that they used to come to their house. They were involved in robbery and at one point of time his son told them not to come to their house and therefore they were on loggerheads. PW9 also deposed that Om Prakash and Prasanth had obtained quotation for removal of sand from Parvathi Puthenar river. His son was also working with them. They used to pay money for the load of sand. Later Prasanth refused to give money on account of which they fell apart. Prasanth and Om Prakash told him that he will be done away with. He further deposed that after the incident police had come to his house for recording his statement. One week after that, while he was walking along the road, accused No.3 and 5-6 persons came in a vehicle. A knife was pointed on his neck and he was told that if he goes for any case, he will also end up in the same fashion as that of his son. Being afraid he did not complain to police, but informed the matter to the trade Union. At their behest, he lodged complaint to the Police Commissioner which is marked as Ext.P10. The contention of the accused was that this complaint was given for the purpose of creating evidence in the present case. He had stated that he had not given statement to the police that the A3 had threatened to kill him. But he stated that he had given a complaint to the police. While cross examining, an omission is pointed out, that he had not mentioned the name of Prasanth (A10) and Om Prakash (A9) in the statement given to the police. He deposed that he does not remember. Though it is contended by the Prosecutor that the statement given to PW9 can be treated 41 Crl.A.No.628/2013 & conn.cases as a dying declaration of Krishnakumar under 2 nd limb to Section 32(1) of the Indian Evidence Act, we don't think that the said provision can be stretched to such an extent. The deceased had told PW9 that he might be killed. But it is relevant to note that the name of A9 and A10 has not been mentioned by PW9 in his earlier statement to the police. Therefore it could only be stated that the evidence to that extent is only an embellishment and cannot be the basis for conviction. The prosecution had tried to rely on the telephone call details of A9 to prove that he was involved in conspiracy as he was in constant and continuous contact with the other accused. The fact that they were calling each other will not prove conspiracy. Even according to the prosecution all the accused were members of a gang under the leadership of A5. Two things are to be considered. One is whether the phone numbers mentioned by prosecution belongs to the accused and secondly, what exactly was the conversation between them. No such materials are available to unveil them. Therefore the call details by itself will not prove any particular fact unless prosecution establishes the same with reference to the time and date on which such call was made and the circumstances under which the call was made, in order to draw an inference.
32. As far as the 10th accused is concerned his involvement is also that of conspiracy. The only evidence which connect A10 to the crime is the version of PW9. It is submitted that the court below had relied upon the 164 statements of PW9 to convict A10. The learned counsel for A10 relied upon the judgment in State of Kerala v Thomas (2005 KHC 1823), wherein a Division Bench of this Court held at paragraphs 75 and 76 as under: 42
Crl.A.No.628/2013 & conn.cases ".75 S.162 CrPC. deals with the use of statements in evidence. The statements given by any person and reduced to writing under S.161 CrPC. by a Police Officer can be used only to contradict the statement of the witness. Under the Indian Evidence Act, a former statement made by a witness can be used to contradict him, to impeach his credit, to corroborate him, or to refresh his memory. S.162 CrPC. imposes an absolute bar to the use of the statements. The intention behind S.162 CrPC. is to protect the accused from being prejudicially affected by any dishonest or questionable methods adopted by an overzealous police officer. Under S.145 of the Indian Evidence Act, proof of statements follows the putting up of it to the witness. S.162 CrPC. states that a previous statement to the police can be used to contradict a witness if it is duly proved. A combined reading of S.161 and 162 CrPC. shows that the attention of the witness is to be called to the previous statement before the same can be proved. If the witness admits the previous statement or explains the discrepancy or contradiction, it obviously makes it unnecessary for the statement thereafter to be proved by marking it. If the statement still requires to be proved, that can be done later by calling the police officer before whom the statement was made. It is well settled position of law that before using the statement, the witness must be afforded a reasonable opportunity of explaining the contradictions, after his attention has been drawn to such statements, in a fair and reasonable manner. The entire statement recorded under S.161(3) CrPC. is not admissible in evidence. So, the entire statement cannot be marked as an exhibit. The correct procedure to contradict a witness is to draw his attention to the relevant part of the contradictory statement which he had made before the Police Officer and to question him whether he did make that statement. If he replies in the affirmative, that admission establishes the contradiction. When the particular sentence or assertion in the statement under S.161 CrPC. is put to the witness it must be marked by being underlined or enclosed in a circle and exhibited. That admission is to be recorded in the deposition. If he denies that part of the statement, that is to be 43 Crl.A.No.628/2013 & conn.cases proved in accordance with the provisions of the Evidence Act. If he denies having made such a statement or states that he does not remember having made the assertion or spoken the sentence, the officer who recorded the statements will have to be called to prove that he had made or spoken it. It is to be noted that when a statement is put to the witness, he may admit it. He may deny having made such a statement or he may admit a part or portion of the statement and deny the rest of it. The admission if it amounts to a contradiction is to be recorded and it needs no further proof and rest of it alone is to be proved. He may also plead lack of memory and state that that he does not remember. If the witness states that he does not remember, then also the statement has to be properly proved. The procedure to be followed in such cases is well established.
76. An omission may amount to a contradiction. Before the police a witness may state that A and B committed the murder. But in court he may state that A, B and C took part in the commission of the offence.
That omission is in the form of a positive contradiction. If the witness admits that he did not state the name of C before the police officer that admission proves the omission. But if the witness asserts that he had stated the name of C also to the police officer that omission is to be proved by putting that omission to that officer during his examination. He must be asked whether a certain statement was made by the witness before him. The records must show that the statement of the witness recorded under S.162 CrPC. is read out to him and his attention was drawn to the non existence of a certain statement therein."
33. The prosecution had attempted to produce the mobile phone particulars of A10 alleging that mobile number 9447117582 is that of A10. Ext.P74 report from BSNL shows that the connection is in the name of T. Devarajan. In order to prove that A10 was using the said phone, PW79 Manager of Marikkar Motors was examined. He had produced Ext.P100 job car. 44 Crl.A.No.628/2013 & conn.cases It is in respect of a Lancer car belonging to A10. Land line number and mobile number were given for contacting the owner. According to A10, while being questioned under Section 313 he admitted the land line number and job card was his, but according to him the mobile number does not belong to him.
34. Yet another circumstances to prove involvement of A10 is recovery of a diary based on the disclosure statement of A10. It is stated that in the cover of diary, bank account details of A5 was written. The defence contended that there is no evidence to prove that it was an account maintained by A5. According to the prosecution after the incident, A10 was absconding. PW14 had clearly stated about the goonda groups in Kazhakuttam area. One led by deceased Krishnakumar and other by Karate Suresh. A9 and A10 were members of Karate Suresh gang. PW14 also identified the accused.
35. According to the prosecution, A10 had deposited money in A5's account twice. P58 is the account opening form and other details of A5's HDFC Bank. A5 had withdrawn money from Mysore. The mobile number given in Ext.P100 job card is 9447117582 which is used by A10, though the number was taken in the name of T. Devaranjan, A10's father. Ext.P80 is the call details of A10 and Ext.P81 is the call details of A5. There was continuous communication between A10 and A5 prior to 20.2.2007 and after that all calls stopped.
36. As far as A11 is concerned, there is proof to indicate that he had taken the Scorpio car on rent. Deposition of PWs 11, 13, 15 and 75 would show that the Scorpio car which A11 had taken on rent was used for the commission of crime. The Scorpio car was recovered on 22.2.2007 as per 45 Crl.A.No.628/2013 & conn.cases Ext.P27 seizure mahazar. Blood was found in the car. Ext.P95 FSL report indicates that it was B group blood, the same was that of the deceased. PW11, a retired school headmistress deposed that the Scorpio car was purchased by her to help Surjith, her son's friend who was running a rent-a-car business. She deposed that PW15 and A11 had come to her house after the police had questioned her about the incident. From the aforesaid evidence it is rather clear that A11 had taken the Scorpio car on rent and it is the same car which was used for the purpose of committing crime.
37. In the light of the aforesaid discussions following are our conclusions:
(i) The guilt against accused 3, 6 and 7 can be confirmed. The evidence that had been proved against accused No.3 are as under:
a. Though PW1 has not stated in court of having seen A3 at the time of the incident, his name was specifically mentioned in the FIS. b. PW2 in his evidence had also stated regarding the presence of A3 in the said gang.
c. PW3 in his evidence admitted that he had informed the police about the involvement of A3 in the incident.
d. The extra-judicial confession of A3 to PW41. e. A3 had been absconding for quite some time.
f. After the arrest of A3, MO3 knife was recovered and FSL report indicates that the knife was blood-stained. Though there is no evidence to indicate that A3 was using a knife at the time of the offence, apparently it is recovered on the basis of his disclosure statement Ext. P46(a) through Ext.P46 mahazar. 46 Crl.A.No.628/2013 & conn.cases Through Ext.P47 mahazar, dress of A3 was also recovered on the basis of his disclosure statement Ext.P47(a). The former recovery had been proved through PW43 and the latter through PW44.
(ii) The findings against A6:
a. PW1 who is an eye witness had categorically stated about the involvement of A6.
b. A6 was absconding along with other accused. A6 was arrested along with A5 & A7.
c. After the arrest of A6, MO1 sword was recovered on the basis of his disclosure statement which was proved before court.
d. The sword recovered was blood-stained and it was found to be human blood. The said recovery was in terms of Section 27 of the Indian Evidence Act.
e. The dress the accused was wearing at the time of incident was also recovered which is also proved before court.
(iii) The evidence against A7:
a. Oral testimony of PW1 who categorically stated about the involvement of A7.
b. PW1 identified the dresses that MO8 & MO9 were worn by A7 at the time of incident.
c. A7 was absconding along with other accused. A7 was arrested along with A5 & A6.
d. After his arrest MO8 and MO9 were recovered on the basis of his disclosure statement [Ext.P128(a)] through Ext.P128 seizure mahazar.
(iv) As far as A9, A10 and A11 are concerned, they had been implicated 47 Crl.A.No.628/2013 & conn.cases as accused in the case on the ground that they were part of the conspiracy to commit murder of the deceased. In the case of accused Nos. 9 and 10, despite the earnest effort of the prosecution to prove their involvement, we do not find any evidence to implicate them. The court below has mainly relied on the testimony of PW9 to implicate A9 and A10. But as already stated, PW9 in his earlier versions and Ext.P10 complaint has not made any mention about the involvement of A9 and A10. Therefore the subsequent version can only be treated as an embellishment. In fact, the prosecution had relied upon the fact that conspiracy had taken place at three places, namely, Surya Tourist Home near Ayurveda College, Trivandrum, house at Muttathara, Trivandrum and rented house at Savakkottaparambu, Punalur. But there is absolutely no evidence to indicate that all the accused had assembled in the said buildings at any point of time. There is only proof to show that A10 had taken the buildings on rent. It is true that there is oral evidence of PW14 who says that A9 and A10 were the gang members of A5. But that by itself does not indicate that they were involved in the conspiracy. Certain call detail records had been produced. Even assuming that the same is evidence, in the absence of any proof to indicate that the mobile numbers belong to accused Nos. 9 and 10 or necessary evidence to prove the fact that they were using the said phone number, they cannot be implicated. Of course, PW49 had stated that number ending 352 belongs to A9. But there is no evidence to indicate that A9 was calling A5 at the relevant time of incident. Even otherwise, these calls by itself will not prove the conspiracy, since even according to the prosecution they are all members of the a gang. For these reasons the conviction and sentence 48 Crl.A.No.628/2013 & conn.cases against A9 and A10 are liable to be set aside.
38. As far as A11 is concerned, we have already come to the conclusion that he has taken the Scorpio car on rent. He was identified by PW11 & PW75. In the 313 statement to the incriminating questions regarding the Scorpio car, he denied any such involvement. He filed an additional statement in which he stated that he had no connection whatsoever with PW11, PW13, PW15 and PW75 and he had not taken the Scorpio car. This explanation is found to be false. The fact that he had given a wrong explanation by itself would indicate his involvement in the incident in which the Scorpio car was involved. Most of the cases of conspiracy are done in secrecy. Prosecution could prove only certain circumstances to indicate such conspiracy. As held in the judgments which are cited above, every circumstances have to be proved beyond any doubt. In the case on hand, there is evidence to show that the Scorpio car was used for the purpose of committing the crime. Blood stains of the deceased was found in the car. The car was arranged by A11 and he had virtually denied his involvement in taking the Scorpio car on rent. The false explanation as to how the car which he rented out ended up in crime, among other factors clearly indicate his involvement in the conspiracy to commit the crime and therefore he is responsible for the offence of committing conspiracy under Section 120B of the IPC.
In the result, Crl.A.No.538/2015, Crl.A.No.864/2013 and Crl.A.No.918/2013 are dismissed confirming the conviction and sentence of the accused Nos. 3, 6, 7 and 11. Crl.A.Nos. 628/2013 and 1205/2013 are allowed setting aside the conviction and sentence of the appellants/accused Nos. 9 and 49 Crl.A.No.628/2013 & conn.cases
10. Accused 9 and 10 shall be released forthwith, if their presence is not required in any other case.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN JUDGE kp True copy P.A. To Judge.