K.M.Abdulla @ Babu @ Ameer Muhammed @ ... vs Deputy Superintendent Of Police on 18 February, 2022

[Cites 8, Cited by 0]

Kerala High Court

K.M.Abdulla @ Babu @ Ameer Muhammed @ ... vs Deputy Superintendent Of Police on 18 February, 2022

The consequence of violation of the oath of 'Omerta', in Indian settings, is the case projected by the prosecution. The deceased an active participant in a smuggling operation turned informer leading to the seizure of a huge cache of contraband. The Directorate of Revenue Intelligence [DRI] rewarded him for the seizure effected with a hefty sum, which prize he could not enjoy since the price of betrayal was, his very life.

2. The story, rivalling the movies commenced with the deceased-Hamza and PW41, turning informers and in retaliation the former being shot dead. The investigation changed hands from the local police to the Crime Branch and ended with the Central Bureau of Investigation [CBI] filing a final report arraying 19 accused. Three turned approvers, eight were absconding Crl.A.No.373 of 2015 - 3 - and eight stood trial in which six were convicted and two acquitted. The appellant herein originally arrayed as A2, was arrested in Bombay in a narcotics case, from where he was brought to Kerala for production before the CJM. He jumped custody but was again arrested by the Sree Lankan Police, consequent to which he was brought for trial before the Special Court.

3. The story unfolding is that one A.P. Abdurahiman @ Pakistan Abdurahiman (A1), a close relative of the deceased-Hamza, was running a smuggling operation in which Hamza and PW41 were also active members. In 1989 there arose disputes with respect to remuneration, given to the transporters, which led to Hamza & PW41 turning informants. Two tips given to DRI Officials turned futile but the third ended in the seizure of 16 jackets, each with 100 gold bars, being seized by the DRI officials at the Thalappady Check Post on 12.02.1989. The detention and seizure of the contraband being on the information supplied by Hamza and PW41, they were entitled to a reward of Rs.93 lakhs, the first installment of which was received in the life time of Hamza. On 29.04.1989 Hamza Crl.A.No.373 of 2015 - 4 - who was travelling in a Maruti car was waylaid and shot dead by his former associates and hired assassins. The assailants came to the scene of occurrence in two vehicles, a Fiat car and a Jeep. The victim, in the driver's seat of a Maruti car, was shot multiple times, injuring him grievously, resulting in his death.

4. Sri.B.Raman Pillai learned Senior Counsel, instructed by Advocate Sri.Mahesh Banu, contends that there is no legal or admissible evidence inculpating the appellant/accused either in the allegation of conspiracy or in the crime proper. PW3 and PW55 are the eye witnesses examined, who does not identify the appellant from the scene of occurrence, where the shots were fired at the deceased. In the earlier case, ten eye witnesses were examined of which eight were given up in the present trial. The evidence with respect to the vehicles used for the crime proper is sketchy. There is nothing to prove that the vehicles were procured in furtherance of the conspiracy. Even as per the evidence of the prosecution, the Jeep and car were purchased on 04.06.1988 and 08.02.1989. The seizure of contraband by the DRI on Crl.A.No.373 of 2015 - 5 - information supplied by the deceased is on 12.02.1989; which is projected as the motive for the killing. The appellant has not been seen with the vehicles or inside the vehicles. PWs.49 and 51 speak of having taken a Jeep to Bangalore. PW51 does not identify the appellant and PW49's identification is unbelievable. PW49 has seen the appellant only once and he identifies the appellant in the dock after 20 years. The Court has found both the said witnesses to be accomplices; whose testimony can be believed only if there is corroboration, but still relied on them. PW46 is another witness who is treated as an accomplice by the Court below. PW46 was used by A1, in his operations, but he does not speak of any association with the appellant. The reference to the appellant by PW46 in his testimony is only hearsay.

5. Reliance has been placed by the Court below on the evidence of PW1 and PW4 to find the involvement of the appellant in the conspiracy. Reliance is also placed on the diary entries in Ext.P2 which are not in the same handwriting found in Ext.P1. Ext.P1 is of dubious origin, said to be in the handwriting of the deceased. PW4 said Crl.A.No.373 of 2015 - 6 - that the letter was written in his presence and he had handed it over to the addressee. PW4 also said that the letter was written when nobody else was present, which would belie the contention of PW1 that she saw her husband writing the very same letter. According to PW1, Ext.P1 was in her possession, the same having not been dispatched to the addressee; contrary to PW4's testimony. In any event there is nothing incriminating in the diary entries but for an apprehension that A1 would level a threat through the appellant. The evidence of PW41 regarding the presence of the appellant, near the house of Hamza is on a date long prior to the crime proper and the vehicle in which he is alleged to have been seen was not clearly identified. On the allegation of conspiracy the learned Senior Counsel relied on Purushothaman v. State of Kerala [AIR 2006 SC 35], Yogesh @ Sachin Jagadish Joshi v. State of Maharashtra [AIR 2008 SC 2991] and Parveen v. State of Haryana [Manu SC/1190/2021]. Regarding the reliance placed by the prosecution on the S.164 statement of PW46 it is pointed out from his own testimony that he was kept in the custody of the CBI and Crl.A.No.373 of 2015 - 7 - browbeaten to depose against the appellant. He was accompanied, to the Magistrate and back, by CBI officials, who would have tutored and coerced him, with the threat of arraying him as an accused. It is pointed out that but for the seven persons convicted initially, all others have been acquitted.

6. Sri.S.Manu, learned Assistant Solicitor General, points out that in the very judgment confirming the conviction of some of the co-accused, Firozuddin Basheeruddin v. State of Kerala [(2001) 7 SCC 596], the Hon'ble Supreme Court has succinctly spoken about the elements leading to conspiracy. It is argued that the conspiracy concludes only with the destruction of evidence and the appellant had a major role to play in removing the vehicles from the State and effectively demolishing it. PWs.34 and 43 are relied on to show that the engine of the Jeep having registration No.CRX 1143, with identical chassis and engine number, was recovered from PW60, who dismantled the vehicle. The vehicle was allegedly handed over to PW60, by A17 who stood convicted in the first trial. The engine and chassis number are Crl.A.No.373 of 2015 - 8 - available in the seizure mahazar. Though there was a confusion raised as to whether the number noticed by the eye witnesses at the scene of occurrence was 1143 or 1149; PW43's evidence clearly establish CRX 1149 being the registration number of an Ambassador car. That the vehicle was taken to Bombay for disposal and dismantling, which was effected through A17 and PW60, has been proved by PW49 and PW51. It is argued that as per the cited decisions, the conspirators if acting in cohort; even if they were unknown to each other, there can be a conviction if the participation of any of the conspirators at any point, is established.

7. The testimony of PW46 is projected as very crucial. He had specifically spoken of his stay in Bombay where the premises was rented out by the appellant and so was the rent paid by him. PW46 also spoke of his living expenses having been taken care of by the appellant. His evidence regarding the sighting of a pistol and a jacket in the suitcase of the appellant as also the attempt made by the appellant to create dummy accused, clinches the issue. The Fiat car was seen by PW7 near the scene of Crl.A.No.373 of 2015 - 9 - occurrence and it had passed the check-post at Bhagamandala as testified by PW50 and PW56; Forest officials of the Karnataka State manning the said check-post. PW46 took the vehicle from Bombay to Goa and PW72 seized it as per Ext.P115. The close association of the appellant with A1 and the fact that he was the go between in the smuggling activity, in which Hamza and PW41 were actively involved, his close relationship with A1, the diary entries of the deceased naming the appellant and the sighting of the appellant by PW4 in the Jeep used for the crime, equivocally establish the appellant as an active conspirator to the murder of the deceased. The entire gamut of events as proved by the prosecution establish the guilt of the accused beyond reasonable doubt, concludes the learned ASG.

8. The FIS (Ext.P11) was by PW3 who was living in a rented accommodation adjacent to the scene of occurrence. He was sitting in front his house when he heard two three vehicles coming from the north and saw its lights. One of the vehicles overtook another and braked with a sound and a little later there was the Crl.A.No.373 of 2015 - 10 - sound of a shot. PW3 ran to the spot and before he reached there heard another shot. He saw a Maruti Car on the east of the road facing south and in its front a Fiat Car facing south-east with a jeep behind the Maruti Car. He saw two three persons standing in the road and one person sitting inside the Maruti Car. The person sitting in the Maruti Car implored not to kill him, when one of the persons standing outside said that he will not be left free. PW3 hid in the shadows, on the western side of the road. Hearing the shots, local people converged at the spot, when the assailants got into the Car and the Jeep; which sped away in opposite directions. PW3 ran to the Maruti Car and saw a person in its front seat with blood all over his body. The Police reached the spot on being informed over the telephone by somebody. The injured in the Maruti Car was taken to the Hospital by the police. PW3 was also taken in a Jeep by the police. When they reached Kasaragod it was informed that the injured had died. Though PW3 did not notice the details of the car he spoke of the number of the Jeep being CRX 1143, as spoken of by the locals who converged on the Crl.A.No.373 of 2015 - 11 - spot. He was informed that the deceased was one Hamza, a resident of Mouval at Pallikkara. The shots were fired from a pistol held in the hand. PW3 deposed in tune with the FIS and PW55, another eye witness corroborated; but both did not identify the appellant.

9. PW1 is the wife of Hamza and through her Ext.P1, a letter written by Hamza, was marked to affirm the handwriting on Ext.P2 and P3 diary entries; specifically Exts.P2(a). Ext. P3 was not relied on by the prosecution, since the entries are made in January, 1988. PW1's evidence is to the effect that her husband was actively involved with A1 in smuggling activities, who was a close relative, married to the daughter of her father's elder brother. She is also familiar with the appellant, closely associated with her husband. Two months before the death of Hamza, he purchased two cars; one a white Ambassador and a blue Maruti; of which the latter was parked in their house and the Ambassador in Aboobacker's (PW41) house.

10. On the day when the contraband was seized Hamza was with the appellant, one Syed Mohammed and PW41. Crl.A.No.373 of 2015 - 12 - Abdul Majeed, a car driver and neighbour took the car parked in their house and on the next day the seizure of contraband from Thalappady was reported. The arrest of Majeed and Azeez was also reported. She understood that the seizure was of the gold taken by her husband. When her husband returned home, she enquired about the seizure and he told her that himself and PW41 had passed on the information which led to the seizure of the gold belonging to A1. He also expressed dissatisfaction in the activities carried on by him for the past few years which he intended to stop. He expected that he will be handsomely rewarded for aiding the seizure. A1 wanted her husband to go to Bombay which he did not comply with. She spoke of there being threats to the life of her husband levelled by A1 for reason of the contraband seizure. She spoke also of one incident where certain people came in a jeep to their house and the appellant and Syed Mohammed having been inside the Jeep. On the day, her husband was killed, he left his residence to go to the Court and the Garage at Kumbalam in his light green Maruthi car. PW4 had gone along with him on that day, in the Ramzan Month Crl.A.No.373 of 2015 - 13 - and in the evening when she went out she saw PW4 in the nearby shop at around 4'O clock. At 9'O clock there was a crowd in front of her house and around 12 midnight her in laws came and by 3'O clock she was informed of the death of her husband. She also spoke of her husband having told her categorically that if anything happens to him, A1 will be responsible.

11. PW2 is the Officer of the DRI who spoke of having maintained a dossier regarding the smugglers in the area. Hamza was known as a close associate of A1 and a participant in his smuggling activities. PW2 after an unsuccessful interception of Hamza developed a very warm relationship with him. Hamza contacted PW2 in January 1989, with information about the landing of contraband belonging to A1. PW41 and the deceased had also visited him at his house in Mangalore and passed on some information about the expected landing of gold belonging to A1. PW2 passed on the information to his Assistant Director, and on his instruction stayed at Kannur, with an Intelligence Officer; but the landing did not occur. Crl.A.No.373 of 2015 - 14 -

12. On 11.02.1989 Hamza called PW2 and requested for an immediate meeting at Kanhangad. PW2 and his Assistant Director proceeded to Kanhangad and met the deceased at about 10kms before Kanhangad. Hamza was waiting for them in a car and spoke of a consignment of gold belonging to A1 arriving on that night, the transport of which would be entrusted to Hamza and PW41. Hamza also requested them to stay at Kanhangad for the night and PW2 stayed in Radhakrishna Tourist Home at Kanhangad along with the Intelligence Officer. The room was taken in the name of Janardhanan at around 3.30 p.m. He confirmed his signature in Ext.P4 register of the Tourist Home, marked as Ext.P4(a), the copy of the receipt (Ext.P5(a)) from Ext.P5 book and Ext.P6(a) carbon copy of the bill in Ext.P6 bill book. At around 12.30 in the night PW41 and Hamza came to their room and confirmed the arrival of the consignment and gave the details of the vehicles in which the gold will be transported. They also disclosed the details of the cavities in the vehicle where the gold would be concealed. This information was recorded and fingerprint of Hamza and PW41 were taken and Crl.A.No.373 of 2015 - 15 - attested with the signature of PW2, in Ext.P7. The contraband was to be transported on 12.02.1989 through Thalappady. PW2 also spoke of an incident after the informers left, which involved a raid carried out by the Sub Inspector of Police, which was averted when PW2 disclosed his identity.

13. On the next day, between 11.30 and 12.30 noon, Hamza contacted PW2 over telephone and confirmed the transport in 16 jackets with 8 jackets in each car. It was also informed that there would be 100 gold biscuits in one jacket and that the vehicles are scheduled to pass Thalappady check-post between 1.30 and 3.00 p.m. PW2 immediately informed his Assistant Director and along with the Intelligence Officer proceeded to Thalappady. Having confirmed the presence of the DRI team at Thalappady they came back at the Thalapady bus stand. At around 2.35 p.m., Hamza and PW41 passed them with the identifiable vehicles following them. PW2 followed the said vehicles, which were intercepted at Thalappady check post. The spot mahazars were marked as Ext.P11 and the seizure of the contraband by Ext.P9 was also proved. Crl.A.No.373 of 2015 - 16 - Later PW2 met Hamza and PW41 at Mangalapuram Harbour and gave them a carbon slip of the information slip after entering the number 1600. The contraband was worth around Rs.6 crores and the informers received an advance reward of Rs.45 lacs. At the time of disbursement of final reward Hamza was not alive. The balance Rs.48 lacs was given to PW41 and the legal heirs of Hamza at Mangalore. Azees and Majeed who were driving the cars with contraband were arrested and detained under the COFEPOSA Act. The two other persons travelling in the car with the drivers were released.

14. The evidence of PW2 is corroborated on all material particulars by the other witnesses. PW6 is the Manager of the lodge in which PW2 and his Intelligence Officer stayed for the purpose of contacting the informants and ensuring the seizure. He spoke of the room booked by PW2 in the name of Janardhanan, proved Exts.P4, P4(a), P5, P5(a) and P6 and P6(a). Hamza and PW41 came to his lodge and it was PW30, the Editor of a newspaper sitting in the reception of the lodge who revealed the identity of Shahanas Hamza, a bus operator and smuggler, Crl.A.No.373 of 2015 - 17 - after they left. Later, when PW41 stood for the Lok Sabha elections, he recalled that person having come to his lodge. He also identified the photograph of PW41 from his Passport, MO10. PW41 and Hamza returned to the lodge, booked a single room and asked for the people from the Insurance. They spent a lot of time in the room of the Insurance people and left the lodge at around 2 a.m after paying the balance rent amount. PW6 also confirmed that there was a raid in PW2's room for reason of information passed on by him, to the police about the presence of Hamza and the clandestine meeting with PW2, who had received a number of phone calls. PW30, the Editor corroborated the version of PW2.

15. Further corroboration is available from the testimony of PW4 who was with Hamza on the day of seizure and also on the day of his murder. PW4 spoke of having accompanied Hamza in his smuggling jaunts twice. The incident of 12.02.1989 from the morning was narrated in which the appellant and PW41 were also involved. It tallies with the narration of PW1. PW4 travelled in the Maruti Car parked in Hamza's house, driven by Majeed, Crl.A.No.373 of 2015 - 18 - which; Hamza said, carried contraband gold. The modus operandi as spoken of by Hamza was that PW41 & Hamza would proceed in the front with the Maruti car driven by Majeed and the Ambassador driven by Azeez following. If there was any obstruction or possibility of interception, the pilot car would turn back and in that event the cars containing the contraband also had to turn back. They hooked up before the CPCRI, Kasaragod, when Hamza told them that they would meet at Uduppi and went in the front followed by the two cars, which were intercepted at the Talappady Guest House. PW4 travelling with Majeed and Abdulla, travelling with Azeez were questioned and let free. PW4 met Hamza after four days and accused him of betrayal, when Hamza relented to give a share of the reward. PW41 spoke in tune with the case of the prosecution about the smuggling operations being controlled by A1, the difference of opinion he and Hamza had with A1, the betrayal leading to the seizure of A1's gold entrusted to them for transportation and the demand of A1 to go to Bombay for settlement.

Crl.A.No.373 of 2015 - 19 -

16. The first point raised for consideration by the trial court was whether A1 had entrusted contraband gold to Hamza and PW41, through the appellant for transporting the same from Kasaragode to Bombay, in the month of February, 1989. It is clearly established that A1 was running a smuggling ring and the appellant and PW41 were active participants. The presence of the appellant on the morning of the seizure, prior to the vehicles containing the contraband beginning their journey, is also proved. Hamza and PW41 arranged the two drivers Majeed and Azeez to carry out the transportation in two different cars and they proceeded in the front, in another car, piloting the contraband. PW41's evidence is categoric that the gold transported belonged to A1 and the seizure was made on the information passed on by himself and Hamza. He corroborated PW1, PW2 and PW4 to the hilt. The second issue raised is as to whether the gold so entrusted was seized by the DRI at Thalappady on the information given by Hamza and PW41. The said fact is also well established by the evidence discussed herein above, especially that of the DRI official, PW2. The Crl.A.No.373 of 2015 - 20 - third point raised is as to whether A1 conspired with A8 including the appellant to murder Hamza and destroyed the evidence thereof. The murder having been committed by reason of a conspiracy stood established in the earlier trial, where seven persons were convicted which order of conviction was upheld by the Hon'ble Supreme Court in Firozuddin Basheeruddin (supra). The question to be decided now is confined to whether appellant was part of the conspiracy, since that is the only charge under which the appellant has been convicted. The lower court has found that the presence of the accused at the time of murder of Hamza has not been established and there is no question of conviction under Section 302 r/w Section 34 of IPC. The appellant was also found not guilty under section 27 of the Arms Act and Section 201 of the IPC. The appellant was convicted only under section 120B r/w Section 302 IPC.

17. The appellant, from the evidence led, was an active participant in the smuggling activity in which PW41 and Hamza were also parties. The appellant was a close relative of A1, as was Hamza. That Hamza betrayed Crl.A.No.373 of 2015 - 21 - his comrades by turning informer, resulting in a huge cache of contraband being seized by the DRI also stands established. The former colleagues harbored a grouse against the informers, big enough to even think of eliminating the traitors, is the motive projected; quite plausible. The case of the prosecution was also that the conspiracy was to kill Hamza and blame PW41 for the murder.

18. The presence of appellant in the house of Hamza on the morning of 12.02.1989, when the transport of the contraband gold was initiated is spoken of by the witnesses. But none speak of the appellant having at any time, threatened Hamza personally. We find the diary entries in Ext.P2 cannot be relied on to find the appellant having been involved in the conspiracy. Ext.P1 is of dubious origin since PW1 says it was written in her presence and she kept it all along without despatching it to the addressee. PW4 equally asserts that it was written in his presence, when he was alone with Hamza and he had handed it over to the addressee. It was seized by PW65, from the wife of the addressee by Ext.P12 Seizure Crl.A.No.373 of 2015 - 22 - Mahazar. Further from what can be discerned from the entries in Ext.P2, the person who wrote it had merely noticed the names of persons, who, he apprehended would be deputed by A1 to threaten him. It has been categorically stated that it is just a doubt. Even if the diary entries were written by Hamza, the appellant being a close associate of A1, the apprehension was justified, but the same cannot form an incriminating circumstance as to the involvement in the conspiracy.

19. PW41 testified that after the seizure, Hamsa told him about the appellant, Ubbu, Said Mohammed and one or two fat persons having come in a Jeep to his house. There was nothing more, stated ie: either of a threat or an attempt to murder. According to PW41, Hamza had gone to PW13's shop to telephone A1 and ask him whether the persons in the Jeep, were send to kill him. A1 is said to have denied the same. In fact a reading of Firozuddin Basheeruddin (supra), para 20 reveals the following: 'The High Court further observed that the role of PW23 and Pemmayya played at the instance of A2 and A15 was not without significance even if the actual murder was not in Crl.A.No.373 of 2015 - 23 - contemplation; that the exercise sought through them was to give a signal to the deceased of the impending danger to his life' (sic). There is no evidence led in the present trial on this aspect and it is not clear whether it was a threat or a simple warning. The trial court has relied on the recital which mentions some persons having come in a Jeep with number KLS 2226 being the earlier registration number of the Jeep with changed number of CRX 1143. This finding is erroneous since the number in the recital in Ext. P2 is KLS 2474. Appellant's name is seen included, but there can be no reliance placed on it to find him as involved in the conspiracy.

20. The testimony of PW4 and PW41, though speaks of threats having been levelled by A1, there is no whisper about the appellant having threatened Hamza on behalf of A1. PW13 is another close friend of Hamza whose telephone Hamza frequently used for reason of the STD facility available in it. PW13 also spoke of threats having been levelled against Hamza by A1, as spoken of by Hamza himself and the enquiries made to PW13, by A1 regarding the whereabouts of PW41 and Hamza, after the Crl.A.No.373 of 2015 - 24 - seizure of the contraband. PW13 also does not speak about the involvement of the appellant or any mention is made of the appellant in connection with the threats levelled by A1. The trial court has also found that the appellant's presence at the time of murder has not been established, in the scene of occurrence. There is hence no evidence regarding the involvement of the appellant in the conspiracy to murder Hamza prior to the murder or any inculpatory evidence of physical participation in the crime.

21. The learned ASG had specifically relied on Firozuddin Basheeruddin (supra) and the principles enunciated therein, on the aspects of conspiracy, as extracted from the cited decisions. The Hon'ble Supreme Court in paragraph 26 noticed that loosened standards prevail, in a conspiracy trial and the declaration by one conspirator, in furtherance of a conspiracy, would be admissible against a co-conspirator, despite hearsay evidence being normally not admissible in prosecutions. The unreliability of hearsay evidence, it was held, would not be applicable in prosecutions for conspiracy. Crl.A.No.373 of 2015 - 25 - We cannot but notice that here, there is no declaration made by any co-conspirator which could be taken of as having inculpated the appellant herein. In fact none of the prosecution witnesses testify on the involvement of the appellant in the conspiracy or even raise an allegation that the appellant made some threat or committed any act, against Hamza after the seizure and before the murder.

22. The learned ASG would argue that a conspiracy includes not only the commission of the crime, but also the further acts committed to ensure that the truth does not come to light, including disappearance of evidence. The contention is raised on the basis of the testimony of the witnesses that the vehicles used for the murder, viz., the Jeep and the Fiat Car were taken away from the place and dismantled, which activity the appellant had presided over. The learned ASG also relies on the broad principles governing the law of conspiracy as extracted from Superintendent of Police V. Nalini [(1999) 5 SCC 253]; specifically the 6th guideline which reads as under:-

Crl.A.No.373 of 2015 - 26 -

"6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left".

We cannot but notice that the declaration is specific in so far as the meeting of minds before the consummation of the intended objective.

23. We have already found that there is no meeting of minds established by the prosecution before the murder, the intended objective of the conspiracy; where the appellant was involved. Even if the appellant is found to have been involved in the dismantling of vehicles, for the purpose of destruction of evidence, we cannot but notice that the appellant has been acquitted under Section 201 IPC and there is no appeal against that. We extract herewith guideline number 2 from the cited decision:

"2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would Crl.A.No.373 of 2015 - 27 - not make the accused a part of the conspiracy like giving shelter to an absconder".

Here the contention of the prosecution is that the appellant supervised the clandestine removal of the vehicles used in the crime; which, if the appellant; is not connected to the conspiracy to murder, can only be convicted under section 201 IPC.

24. We are further fortified by the following decisions: Purushothaman (supra) held:

"To constitute a conspiracy, agreement 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. Even if we hold that at some point of time, the accused-appellant had some knowledge or suspicion about A-3 indulging in fraudulent misappropriation of gold, entrusted to A-3, in the absence of some positive evidence Crl.A.No.373 of 2015 - 28 - indicating agreement to that effect, conspiracy could not be inferred".

Yogesh @ Sachin Jagadish Joshi (supra) declared:

"23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement".

Parveen (supra) reiterated the principle and further held that: 'A few bits here and a few bit there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.'(sic) Crl.A.No.373 of 2015 - 29 -

25. Be that as it may, we will examine the contention raised by the learned ASG; with reference to the witnesses, who are said to have been involved in carting away the vehicles to outside the State, after the murder. A Jeep and the Fiat Car were said to have been used as testified by the eye witnesses, PW3 and PW55. There is no identifiable description of the Fiat car nor even the registration number. As far as the Jeep is concerned, even at the time of FIS, the number as spoken of by the people who converged at the scene of occurrence, was stated as CRX 1143. We will deal with both these cars separately.

26. With respect to the Fiat Car, the reliance placed is on PW7, who was waiting at the Bus stop at Thattummal, around 8 pm on 29.04.1989. A Fiat Car stopped near him and enquired the route to Bangalore. One of the passengers was identified in the TIP and before Court during the previous trial. The trial court has noted that it is A8; who was absconding at the time of the first trial. No registration number or identifiable description was given by PW7. However, a Fiat Car having registration Crl.A.No.373 of 2015 - 30 - KRN 5531 passed through Bhagamandala Check-post as deposed by PW50 and PW56, forest officials who were manning the check post. It is at best a surmise that going by the time required to travel from the location of PW7 to Bhagamandala Check-post, it could be the same Fiat car. Ext.P115 is the mahazar by which a Fiat car was seized, by PW72, from the public road in front of Regos Hotel near Inter-State bus terminal, from which hotel two accused (A14 & 15) were also arrested. A14 turned approver in the earlier case and A15 was convicted, as is evident from the decision in Firozuddin Basheeruddin (suora). The approvers evidence has not been led in this case; which leaves the connection of the car with the crime, or the convicted criminal not having been proved through the approvers testimony, here.

27. The car, seized had the registration number KRM 6631 and there were four number plates seen inside the car with numbers KRN 5537 and CKN 3351 as seen from Ext.P115. It is from the evidence of PWs.50 & 56 that the registration number of the Fiat car was discerned as KRN 5531. PW29, the U.D.Clerk of R.T.Office, produced Crl.A.No.373 of 2015 - 31 - Exts.P26 to P29 to prove that KRN 5531 is a Premier Padmini Fiat car, of which the original registration number was BLO 1034. The Engine and Chassis number in Ext. P115, the Seizure Mahazar, does not tally with the said numbers found in Ext, P26, the Registration Certificate of KRN 5531, Ext.P8, the No Objection Certificate, Ext.P29, Taxation Certificate, both of BLO 1034. PW72 says that the Engine number and Chassis number of the vehicle seized was requested to be verified at the Fiat Manufacturing Company and it was stated to be false. No evidence was led on that count and even if the engine and chassis numbers, were tampered with and are not of a Fiat car, it does not prove that the Fiat car seized is the one which had registration numbers BLO 1034 and KRN 5531. The documents of KRN 5531 also showed that in Kerala the vehicle was registered in the name of Raphi Ahamed, S/o.Abdulla. PWs.15 and 17 to 24 were witnesses proffered by the prosecution to prove that there is no address existing as shown in the Registration Certificate of the Fiat car having number KRN 5531. The registration number of the said car and the number plates found inside Crl.A.No.373 of 2015 - 32 - does not tally, as seen from Ext.P115, with that detected from the register produced by PWs.50 and 56. There is also nothing incriminating recovered from the said Fiat car.

28. As far as the Jeep is concerned, there is testimony available at the first instance itself as to the registration number being CRX 1143. However, there was some doubt aired by PWs.3 and 9, who were at the spot, that the number was 1149. PW34, a Joint R.T.O., proved that a Jeep having registration number MAA 1799 was transferred as KLS 2226. PW10, an Auto Consultant, testified that the Jeep having number KLS 2226 was transferred in the name of one B.Abdulla with registration number CRX 1143. PW43, the Assistant of the R.T.Office, confirmed the transfer of KLS 2226 to CRX 1143, a Mahindra Jeep (PW50). PW43 also produced Ext.P49(a) to show that CRX 1149 was an Ambassador Car. The registered holder of the number CRX 1143 again was a fictitious person as has been proved by examination of PWs.31 and 32, the postmen of the locality. Crl.A.No.373 of 2015 - 33 -

29. The testimony of the witnesses at the scene of occurrence establish a jeep with registration No.CRX 1143 having been used in the murder of Hamza. However, the evidence led in this trial does not clearly establish the vehicle seized as per Ext.P115 as the Fiat car which was used in the crime. The Jeep is said to have been dismantled by PW60, who is said to have received the same from one of the accused, who was tried and convicted earlier. Despite the elaborate testimonies of witnesses, it eludes confirmation as to whether the appellant was associated with any of these vehicles. The prosecution has relied on PW46, PW49 and PW51 to establish that the appellant presided over the stealth removal of the vehicles. We have to immediately reiterate that even if that fact is proved, it only raises a charge of destruction of evidence. For Section 120B to be attracted, necessarily there should be a meeting of minds proved at any time before the consummation of the intended objective; the murder of Hamza.

30. PW46 is a driver who had a taxi and also used to drive around A1 in his own and other vehicles. Crl.A.No.373 of 2015 - 34 - His continued association with A1 inspired A1 to make him a go between in the smuggling operation, for which he had even rented out a room with a telephone. PW46 was a conduit for messages from and to A1. His testimony on relevant facts is only that he took a Jeep with registration of CRX from Bangalore to Bombay and parked it near Mohan's Workshop at Adarsh Nagar. He did not remember the number and there is nothing to connect the appellant with the Jeep. PW46 acted on the instruction of A1. After bringing the vehicle to Bombay, PW6 stayed near the Workshop, for which residence he said that the appellant was paying the rent. There is no evidence on this aspect and PW46's testimony is a mere hearsay. PW54 had given the premises on rent through PW53, by Ext.P57 lease agreement. The appellant is not a party to Ext.P57 and both PWs.53 and P54 failed to identify the appellant.

31. The next aspect of PW46's testimony pointed out is that the expenses of the residents of the rented accommodation was met by the appellant. This cannot implicate the appellant with the crime since the appellant, a close associate and relative of A1, was a Crl.A.No.373 of 2015 - 35 - part of the smuggling operations of A1, in which PW46 too had a role to play. The next aspect is sighting of a pistol inside the appellant's suitcase; which was allegedly send to Thirupathur at Madras. Admittedly the pistol, revolver and walkie-talkie used in the crime were recovered at the instance of one of the accused, which recovery was witnessed by PW37. The revolver recovered from Thirupathur, from the house of the second wife of PW41, marked as MO49, by PW72 was not confronted to PW46, and his statement that the one seen at Bombay was taken to Thiruppathur remains a hearsay. Moreover the mere sighting of a revolver does not implicate the appellant in the murder of Hamza. PW46 had also made an allegation that he witnessed the appellant attempting to proffer dummy accused in the murder of Hamza. But for the bland statement made by PW46, the exact recital was not mentioned by him, despite his asserting that he had been the scribe after Shafi wrote the first few lines. There is also nothing to indicate that there was any such scapegoats offered as accused in the above case. The further reliance placed is on the testimony of PW46 that Crl.A.No.373 of 2015 - 36 - he had seen a Fiat car at Bombay which he heard was taken to Goa, which by itself is insufficient to connect that car to the one used in the murder or even to that seized from Goa as per Ext.P115. The evidence of PW46 does not inculpate the appellant-accused.

32. PWs.49 and 51 speak of a Jeep having been delivered to Bangalore. PW49 speaks of having gone to Kannur stadium with his uncle and stayed in the car when PW51 spoke to Shafi and another person. He identified the other person, PW51 met at Kannur, with Shafi, as the appellant. They came home from Kannur and later, after the festival (Ramzan) took a Jeep with registration KLL to Bangalore with PW51, his uncle. PW51 said that, Shafi came to his house to inform that Assan, the brother of his brother-in-law, used a Jeep the number of which was publicised as the one used in the murder of Hamza. Shafi wanted to park the vehicle in PW51s house. Later PW51 was summoned to the Highway and asked to take the Jeep to Bangalore or Bombay. Assan also gave him a numberplate with KLL and directed him to come to Kannur. At Kannur, Shafi and Assan came and took PW51 and 49 to the Stadium Crl.A.No.373 of 2015 - 37 - where first Assan and Shafi stepped out and then he was also asked to join them. He said that PW49 stayed in the car. PW59 testified that there were 8 people at the Stadium; quite contrary to what PW49 said. Though one of these persons, at Kannur, was introduced as Atthani (the nick name of appellant), PW51 did not identify the appellant. PW49 had seen the appellant twice in his life, one allegedly at the Stadium and then in Court. There is also no specific testimony as to the entrustment of the Jeep having been made by the appellant. PW51 also does not speak of the registration number of the Jeep parked in his house and the testimony is that the false number plate was given later.

33. As we have found, there is nothing indicated between the seizure of contraband on 12.02.1989 and the murder of Hamza on 29.04.1989, to indicate that the appellant had questioned, threatened or even acted with enmity towards Hamza. The prosecution anchored on the two vehicles and its stealth transport out of the State; to avoid detection of the investigating agencies. We have found that the vehicles used have not been proved to be that Crl.A.No.373 of 2015 - 38 - transported out of the State by PWs.46, 49 or 51. A Fiat car, was seized and so was the engine of a Jeep. These were not proved to be the one's having registration number KRN 5531 and CRX 1143. Even if they were so established, there is no connection established of the appellant with the carting away of the two vehicles. We cannot but notice that the evidence led establishes that the smuggling ring purchases vehicles for the purpose of transport of contraband. Even the seized contraband, as per the evidence of PW1 - wife of Hamza - and PW 13 - close friend of Hamza - were transported in vehicles, purchased just before the landing of the contraband. Purchase of vehicles, re-registration in fictitious names and transport of contraband seems to be a regular and routine affair as far as the persons involved in the smuggling operations, which stands established in the above case. However, the trial is not for the offence of smuggling and it is for the murder of Hamza in retaliation to his betrayal leading to the seizure of contraband by the DRI Officials. We find no iota of evidence linking the appellant to the murder of Hamza and Crl.A.No.373 of 2015 - 39 - the conspiracy hatched, to carry out the crime. The prosecution has also failed to establish that the appellant was responsible for the destruction of vehicles used in the crime. The appeal succeeds and we acquit the accused-appellant. He shall be released forthwith unless his continued detention is warranted in any other case and if he has been released on bail, his bail bonds with respect to this case shall stand cancelled.

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K.Vinod Chandran Judge.

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C.Jayachandran Judge vku/-

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