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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 Crl.A.No.628/2013 & con. 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 Crl.A.No.628/2013 & con. 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 Crl.A.No.628/2013 & con. 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).

Crl.A.No.628/2013 & con. cases

(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 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. ......"

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 Crl.A.No.628/2013 & con. cases the guilt is possible. We respectfully agree with the law laid down in Navjot Sandhu case and K.R. Purushothaman case."