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Against the judgment of the Sessions Court, Accused nos.7 and 9 filed criminal appeal No.145/95, Accused nos.3, 4 and 5 filed Criminal Appeal No.167/95 and Accused no.15 filed Criminal Appeal No.218/95. All the three appeals were dismissed by the High Court by judgment dated 17.10.1997, which is under challenge in these appeals.

The prosecution case, shorn of unnecessary details, may be stated thus :The first accused Abdul Rehman also known as Pakistan Abdul Rehman is a notorious smuggler based at Dubai. He had engaged as his agents for smuggling, amongst others, the deceased Hamza whose cousin he had married and Aboobacker (PW 8) offering them compensation at the rate of Rs.25,000/- per jacket of gold delivered at specified destinations. In one operation that was successfully completed the first accused declined to pay the agents Hamza and Aboobacker the amount promised and after some bargaining paid only Rs.18,000/- per jacket. This conduct on the part of the said accused had created a sore feeling in the minds of the two agents mentioned above. Sometime in 1989 the first accused entrusted one consignment of 1600 gold biscuits to Hamza and Aboobacker for transport to Bombay. These two persons ceased the opportunity to settle scores with the first accused and leaked out the information of smuggling to officials of the Directorate of Revenue Intelligence (DRI). Acting upon the information furnished by Hamza and Aboobacker the DRI officials intercepted at Thalappady the two vehicles in which the contraband gold was being transported from Kanhangad to Bombay and ceased the entire consignment worth about Rs.6.02 crores. As stated by Aboobacker (PW 8) that he and the deceased Hamza got Rs.45 lakhs on 29.3.1989 and a further sum of Rs.48 lakhs after the death of the latter as reward money, the first accused was greatly enraged by the breach of trust committed by Hamza and Aboobacker and threatened to kill them. Thereafter a criminal conspiracy was hatched whose aftermath was the murder of Hamza. According to the prosecution case, Hamza was shot dead at Poinachi while he was returning from Mangalore on the night of 29.4.1989. Kasaragod Police, after getting the telephonic message from K. Moideen Kunhi PW 13 who used to reside nearby Poinachi, swung into action, the Sub - Inspector of Police Raj Mohan T.K. PW -87 who recorded the information in the general diary rushed to the spot and found Hamza riddled with bullets and lying bleeding in the drivers seat of the Maruti car. He was immediately rushed to the Government hospital at Kasargod. PW 64 Dr.K.P.Ali who examined the injured found him dead. PW 87 took PW6 Narayanan Nair who was present at the scene of incident to the Police Station and recorded his statement Exh. P22 which was stated as the FIR and Crime No.229/89 was registered. Thereafter Jaya Prakash PW 90, Circle Inspector took charge of the investigation. Subsequently on 1.5.1989 V. Narayanan PW 100 Circle Inspector, Crime Branch took over the investigation. The investigation was also handled by P.E. Bhaskara Kurup Deputy S.P. (PW 101) Special Investigation team. Subsequently the investigation was taken over by Varghese P. Thomas, Dy. Supdt of Police, CBI(PW 107) from PW 101 by order of the DIG CBI dated 19.7.90 who on completion of the investigation filed the chargesheet against 19 accused persons on 7.1.1992. As noticed earlier, after excluding the three accused persons who turned approvers, 16 were sent up for trial and after deleting the 8 absconding accused the remaining eight accused Nos. 3,5,7,9,14,15 and 16 stood the trial.

All the accused persons pleaded not guilty to the charges. They denied their involvement in the case altogether and alleged that they were falsely implicated in the case.

The learned trial Judge in his judgment, which covers 115 pages, has discussed in great detail the entire genesis of the case starting from the time when the deceased had cordial relationship with the accused; the smuggling activities which all of them were jointly carrying out, how differences arose between them over the demand of dues of the deceased and his associate by the principal accused; how they disclosed relevant informations regarding movement of the smuggled gold to different places to the enforcement authorities leading to seizure of the same; the decision taken by the principal accused to eliminate the deceased and his associate since they had proved to be obstacles in smooth running of the business of smuggling of gold; the various steps taken by the accused in carefully planning and organising the operations to kill the deceased and finally the successful execution of the plan culminating in the death of Hamza, the deceased. In para 32 of the judgment, the learned trial Judge formulated the points arising for determination as follows :

The High Court, as appears from the discussions in the judgment, has given a fresh look at the entire case, discussed the case of the prosecution, the evidence of the material witnesses, the relevant documents, contents whereof corroborate the oral evidence in the case and has assessed the prosecution evidence on the touch-stone of the genesis of the case and broad probabilities. The High Court has considered at length how Hamza (deceased) and his associate Aboobacker (PW 8) used to handle the movement of smuggled gold in close association with A-1 and members of his gang. How differences arose between them, how the informations given by them about movement of smuggled gold to the authorities of the Directorate of Revenue Intelligence had led to seizure of the consignment of smuggled gold valued at more than Rs.6 crores; suspecting the deceased and PW-8 as betrayers and deciding to eliminate them. The High Court referred to the relevant evidence in this regard like PW-7 wife of the deceased, PW-44 a trader in Kanhangad, PW-76 an officer of the DRI and placed reliance on the documentary evidence like Exhibits P 26, 27, 43, 44, 45. On the discussions of the evidence on the point, the High Court recorded the finding : The plea of issue of estoppel was rightly repelled and we agree with the correctness of the findings and observations in this regard in paragraphs 53 to 56 of the judgment. We also agree that the court below was right in the light of circumstances and the evidence of PWs 7, 8, 44, 53 and 76 that the first accused Pakistan Abdul Rahiman was the owner of the gold that was seized from the two cars from Thalappady and that seizure was made possible as per the advance information, evidenced by Ext.P 27.

Thereafter the High Court has proceeded to consider in detail the evidence of PW 8 regarding the smuggling activities which the deceased and the witness had carried on jointly with accused no.1 and his associates; after seizure of the consignment of gold the threat to life given by A-1 to the deceased and the witness. In this regard the High Court referred to the evidence of PWs 7, 8, 11, 23 and 44 and has taken note of the part of the prosecution case that the deceased had been kept under a sort of surveillance by some people engaged by AI even in his house. The High Court particularly discussed the evidence of PW 23, a retired Junior Commissioned Officer of the Army, who ran a security agency at Bangalore; whose services were hired for a sum of Rs.40,000/- through accused no.15 for eliminating Hamza (deceased) and has also taken note of the said witness PW 23. However, at the last moment he decided not to shoot Hamza(deceased). The High Court has also discussed the evidence of PWs 7, 8, 99 to show the role played by A2 to 9 and 15 and the activities leading to the incident.