Jameela a young muslim woman was found killed on18.9.1991 by Baiju, allegedly hired killer at Vattolikadavuroad after having received stab injuries.PW1, the elderbrother of the deceased lodged the First Information Reportin Police Station Ayyuampuzha without naming any person asaccused.At the time of her death, the deceased was inadvance stage of pregnancy.The lungi and shirt MOs 12 and 13respectively worn by him at the time of crime were seized asper Mahazar (P16).After recording his disclosure statementMO1, the weapon of offence was recovered from the busheswhere he had allegedly hidden it.Accused No.2 was alsoarrested in connection with the murder of Ms.is not known to the witness.Her deposition is mainlywith respect to the relationship of the deceased with theappellant.Jose (PW7) stated in the trial court that on thedate of occurrence at about 2.45 p.m., the appellant hadcalled him.He told him to come after some time.He wentthere and talked to the appellant, George (PW8) and Mohanan(PW10).He saw Jameela, deceased getting down from the busat about 2.30 p.m. She had gone to the house of her sisterAmina (PW9).Jameela afterthree days of the occurrence.Upon trial both the accusedwere found guilty of the offences punishable under Sections120B and 302 besides Section 109 of the Indian Penal Code.They were sentenced to undergo life imprisonment.Theappellant was also imposed a fine of Rs.10,000/- and in caseof default, directed to under rigorous imprisonment for twoyears.Aggrieved by the judgment of the Sessions Court,both the accused persons filed appeal before the High Courtwhich was dismissed on 1.4.1997 vide the judgment impugnedin this appeal.This Court on 14.7.1998 dismissed the SLPin so far as it related to Accused No.1, namely, Biju andgranted leave only with respect to the appellant Saju.Thecase of the prosecution is that Jameela, a young unmarriedwoman of 24 years of age had developed illicit relationswith the appellant, with the result that she becamepregnant.She insisted that the appellant should marry herbut her request was declined on the ground that the marriagewas not possible because Jameela and the appellant belongedto different religions.The appellant is stated to havequarreled with the deceased for which Jameela filed acomplaint against him at Police Station Ayyuampuzha.Jameela did not accede to the advise of the appellant tohave abortion.On the date of occurrence she is stated tohave gone to the hospital at about 11 a.m. for a check upand on her way back she visited her sister Amina (PW9) atabout 2.30 p.m. After she left the residence of her sistershe was fatally stabbed by Accused No.1, Biju who hadfollowed her from the bus stop where she had alighted fromthe bus.After inflicting the stab injuries the saidaccused left the place of occurrence.The offence wasalleged to have been committed by Accused No.1 in conspiracywith Accused No.2 who wanted to get rid of the deceased.Admittedly there is no eye-witness in the case which theprosecution has sought to prove by leading circumstantialevidence.(2) Jameela requested 2nd accused to marry her andthat was turned down by second accused because they belongedto different religions.(3) When the close relatives of Jameela persuadedsecond accused to marry Jameela since she became pregnantthrough him, second accused proclaimed that she would notallow Jameela to deliver the child.Second accusedmanhandled Jameela in connection with this dispute and thatwas seen by her neighbours and there was also involvement ofthe police.(4) The conduct of the accused on the fateful day(both accused were seen together on the date of occurrenceby several persons and from PW.11's tea shop they hadtaken food.(7) Recovery of MO1 as a result of information givenby first accused from the bushes where it was hidden andvery near to the place of occurrence.(8) Recovery of MO 25 footwears (Hawai Chappals) fromthe place of occurrence and identified as similar to the onepurchased by first accused from the shop of PW 14 few daysprior to the date of occurrence.(9) Immediately after the incident the accused wereabsconding and arrest of first accused on 19.9.1991 by PW 22from the place he was hiding."According to the prosecution the injuries found on theperson of the deceased were caused by Accused No.1, Bijuwith the weapon of offence seized in the case at hisinstance consequent upon his disclosure statement.Hisconviction and sentence has already been upheld by thisCourt while dismissing the SLP filed by him.The appellanthas been found guilty and convicted of offences underSection 302 read with Section 120B and Section 119 of theIPC.Some conversation is also stated to have takenplace between the accused persons, the contents of which areneither disclosed nor suggested.Accused No.1 alone wasfound to have boarded the bus in which the deceased wastravelling and alighted from it along with her.Regardingthe circumstance relating to the existence of motive, PW9who is the sister of the Ms.Jameela deposed that thedeceased had told her that the pregnancy conceived by herwas through the appellant.According to her the appellantadmitted the paternity of conceived child in the initialstage but denied the paternity attributed to him six monthsthereafter.The trial court found that "in the answerselicited in the further cross-examination also it wouldappear that her version about the first source of knowledgeabout the pregnancy of Jameela was inconsistent andunnatural".Dealing with her statement, the trial courtobserved that PW9 had no occasion to meet Jameela as she wasnot visiting her mother's house and also because the secondaccused had consented for the marriage.What the witness stated was only thatJameela and the appellant were in love and they knew eachother for a period of two years before the death of Jameela.According to her the marriage between the deceased and theappellant could not be solemnised as they belonged todifferent religions.She never saw the deceased and theappellant talking as according to her they used to talk onlyin her absence.The appellant is stated to have visited thehouse of the aforesaid witness on 15.5.1991 and assaultedthe deceased regarding which report Exhibit P-4 was lodged.According to her Jameela was killed while returning from thehospital where she had gone for a check up.Nowhere in hertestimony Nabeesa (PW6) stated that the appellant wanted thechild, conceived by Jameela, to be aborted.There is nopositive evidence proving or suggesting that the appellantwas responsible for the pregnancy of the deceased.In theabsence of evidence regarding the circumstance attributingthe pregnancy of the deceased to the appellant and hisinsistence for abortion of the child, the importantcircumstance of motive cannot be held to have been proved.PW2 who is the neighbour of the deceased statedthat she had known about the pregnancy from Jameela herself.According to her the appellant had quarreled with Jameela inconnection with the pregnancy.Despite denial of theappellant Jameela was stated to have asserted that she didnot have sexual intercourse with anyone other than theappellant.In her cross-examination the witnesses statedthat the appellant never threatened Jameela.She admittedthat the appellant had apparently told Jameela that he wasnot the father of the child in her womb.The witnessconceded that she had no direct knowledge about therelationship of the deceased with the appellant.PW3 who isa neighbour and husband of PW2 was declared hostile as hedid not support the case of the prosecution.It was deposedby him that he was not aware that Jameela had requested theappellant to marry her.It is true that a number of witnesses havedeposed that they had seen both the accused together on thedate of occurrence but it is equally true that such meetingwas not unusual as admittedly they were working together inthe plantation.Mere meeting would by itself not besufficient to infer the existence of a criminal conspiracy.There is no suggestion, much less legal evidence to theeffect that both the accused were so intimate which wouldhave compelled Accused No.1 to agree to be a conspirator forthe killing of the deceased at the instance of theappellant.To a specific question as to whether he hadseen any other person going through the road towards theside where Accused No.1 had gone, the witness emphaticallyreplied in the negative.Davis (PW5) stated that on thedate of occurrence he had seen Accused No.1 at about 2oclock in the afternoon.In reply to a question as towhether he had seen anyone-else going through the road whileAccused No.2 was talking to PW4, the witness replied "I havenot noticed".Nabeesa (PW6) who is the mother of thedeceased has stated that on the date of occurrence both theaccused were sitting near her house on some timber logs atabout 2 p.m. but at 2.45 p.m. she saw only Accused No.1washing his knife near the stream which is on the southernside of her house.What happened between 2.00 p.m. to 2.45p.m.He did not see Accused No.1 with Accused No.2.He saw only the appellant, PW8, PW10 and some other people.George PW8 stated that he saw appellant on the date ofoccurrence at about 2.30 p.m. at the gate of his house.Both the witness and the appellant had conversation on thesteps of the house of the witness.Appellant was there forabout half an hour.This statement of PW8 belies theaverments of other witnesses that the appellant committedthe crime in conspiracy with Accused No.1 at about 2.45 p.m.Amina (PW9), the sister of the deceeased stated that she hadseen both the accused together sitting on the timber lognear the road.She did not see appellant accompanying theaccused No.1 thereafter.Devasi (PW11) Stated that on theday of occurrence both the accused had come to his shop atabout 1 p.m. and each had one plate tapioca and meat.Meharban (PW18) stated "I saw Accused No.2 at 2.30 p.m. atthe timber log.I saw A-2calling PW-7 Jose.Then I saw he was talking with PW-8George.That was about 2.45 in the afternoon.I saw A-1following Jameela when she alighted the bus.Then I saw A-1swiftly walking from eastern side to western side".Thisstatement of the prosecution witness does not suggest, evenby implication that both the accused were together on theday of occurrence.The statement of the witnesses noticedhereinabove may probabilise the presence of both the accusedtogether but does not prove beyond doubt that they weretogether near the road at the place of occurrence on thefateful day.Assuming they were together, would notnecessarily lead to the conclusion that they had met infurtherance of the conspiracy to murder the deceased.No fact orcircumstance with respect to the abetment attracting theapplicability of Section 109 IPF has been brought to ournotice.To prove the charge of abetment, the prosecution isrequired to prove that the abettor had instigated for thedoing of a particular thing or engaged with one or moreother person or persons in any conspiracy for the doing ofthat thing or intentionally aided by an act of illegalomission, doing of that thing.The prosecution miserablyfailed to prove the existence of any of the ingredients ofSection 107 IPC.

Sections cited: Section 120B in The Indian Penal Code, Section 109 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 107 in The Indian Penal Code