IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 CRL.A.No. 1092 of 2006(B) ------------------------ SC.165/2004 of ADDL. SESSIONS COURT, THRISSUR .................... APPELLANTS : ACCUSED NO. 2 TO 5. --------------------------------- 1. RAMAN, AGED 77, S/O.VELAYUDHAN, NANGOOR HOUSE, MANNUR DESOM, MULAYAM VILLAGE, THRISSUR TALUK. 2. PUSHPAN, AGED 42, S/O.RAMAN, NANGOOR HOUSE, MANNUR DESOM, MULAYAM VILLAGE, THRISSUR TALUK. 3. VASU @ VASUDEVAN, AGED 35, S/O.RAMAN, NANGOOR HOUSE, MANNUR DESOM, MULAYAM VILLAGE, THRISSUR TALUK. 4. UNNIKRISHNAN, AGED 30 YEARS, S/O.RAMAN, NANGOOR HOUSE, MANNUR DESOM, MULAYAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.S.RAJEEV SRI.N.K.UNNIKRISHNAN RESPONDENT: COMPLAINANT --------------- STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, MANNUTY POLICE STATION, CRIME NO.160/2001, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2010 ALONG WITH CRA NO. 1738 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ ------------------------------------ Crl.A.Nos.1092 and 1738 of 2006 ------------------------------------- Dated this the 8th day of March, 2010 JUDGMENT BASANT, J. i) Is there satisfactory evidence to prove that the deceased suffered injuries at the hands of the 1st accused? ii) Is there satisfactory evidence to prove that the 1st accused had inflicted the stab injury on the deceased in prosecution of a conspiracy between accused 1 to 5? iii) Is the 1st accused or accused 2 to 5 entitled to the benefit of doubt on the above questions? iv) Is the plea of the learned counsel for the 1st accused that the 1st accused is, at any rate, entitled to protection of the first exception under Section 300 I.P.C acceptable? 2. These questions arise for consideration in these appeals preferred by the 1st accused (Crl.A.No.1738/2006) and accused 2 to 5 (Crl.A.No.1092/2006). The appellants/accused 1 to 5 have been found guilty, convicted and sentenced for offences punishable under Section 120 B and 302 I.P.C. The 1st Crl.A.Nos.1092 and 1738 of 2006 2 accused is convicted principally for the offence under Section 302 I.P.C; whereas accused 2 to 5 are found guilty, convicted and sentenced under Section 120 B r/w 302 I.P.C. 3. They face a sentence of imprisonment for life. There is a further direction that they must pay fine of Rs.50,000/- each. Default sentence is also prescribed. 4. The prosecution alleged that accused 1 to 5, who are the brother in law (A1), father (A2) and brothers (A3 to A5) of the deceased, had animosity against the deceased. They allegedly entered into a criminal conspiracy to murder the deceased. In furtherance of the said conspiracy, the 1st accused allegedly went to the house of the deceased. He allegedly took objection against the conduct of the deceased in filing police complaints against accused 2 to 5. There was an exchange of words. The 1st accused got out from the house and walked towards the gate in front. The deceased followed his brother in law to light the torch and show him the way. Near the gate in the courtyard of the house of the deceased, the 1st accused allegedly stabbed the deceased with M.O1. The deceased was shifted to the hospital immediately. He succumbed to the injuries on the same night. The prosecution alleged that the 1st Crl.A.Nos.1092 and 1738 of 2006 3 accused had committed the offence in furtherance of the conspiracy which he had entered into with accused 2 to 5. 5. Investigation commenced with Ext.P1 F.I statement lodged by PW1, the brother in law (wife's brother) of the deceased. On the basis of Ext.P1 F.I statement of PW1, Ext.P1(a) F.I.R was registered by PW8. Investigation was completed and final report was filed by PW22. Allegations were raised against the 5 accused persons under Sections 447, 120 B and 302 I.P.C. 6. The case was duly committed to the Court of Session. The learned Sessions Judge took cognizance of the offences. Charges were framed against the appellants/accused 1 to 5. They denied the charges levelled against them. Thereupon the prosecution was directed to adduce evidence in support of its case. 7. The prosecution examined PWs 1 to 25 and proved Exts.P1 to P23. M.Os 1 to 3 were also marked on the side of the prosecution. 8. In the course of cross examination and in the 313 examination, the accused persons took up a defence of total denial. According to the 1st accused, he was not present anywhere near the scene of the crime. He came to know of the Crl.A.Nos.1092 and 1738 of 2006 4 death of the deceased - his brother in law, only on the next morning when police personnel came to his house and took him into custody. Accused 2 to 5 took up the stand that there was no conspiracy whatsoever between them and accused 1. 9. The court below on an anxious consideration of all the relevant inputs sailed to the conclusion that the overt act of the 1st accused against the deceased has been satisfactorily established. Relying on various other circumstances, the court below came to the conclusion that the 1st accused had committed the offence only in prosecution of the criminal conspiracy between accused 1 to 5. Accordingly the court below proceeded to pass the impugned judgment. The charge under Section 447 I.P.C was held to be not proved. 10. Before us, the learned counsel for the 1st accused - Sri.K.A.Srijith, the learned counsel for accused 2 to 5 - Sri.N.K.Unnikrishnan and the learned Public Prosecutor - Sri.K.J.Mohammed Anzar, have advanced their arguments. 11. An appellate judgment is, and must be read as, a continuation of the judgment of the trial court. The trial court in its judgment has narrated the oral and documentary evidence adduced on the side of the prosecution as also the documents Crl.A.Nos.1092 and 1738 of 2006 5 relied on by the defence. The defence did not adduce any oral evidence. Reliance was placed on Exts.D1 to D14. We are not hence in this judgment proceeding to re-narrate all the pieces of oral and documentary evidence as also the other materials which are available in this case. Suffice it to say that we have been taken exhaustively through all such oral and documentary evidences and other materials relied on by the rival contestants. Wherever necessary, in the course of our discussions, we shall specifically advert to the relevant pieces of evidence. 12. The learned counsel for the appellants assail the impugned verdict of guilty, conviction and sentence on the following grounds: i) The court below grossly erred in coming to the conclusion that the deceased had suffered injuries at the hands of the 1st accused; ii) At any rate, the court below ought to have conceded the benefit of doubt to the 1st accused; iii) The conviction of the 1st accused under Section 302 I.P.C is not in any view of the matter justified; Crl.A.Nos.1092 and 1738 of 2006 6 iv) The court below must have held that there is no semblance of evidence to drive home the charge of conspiracy against the appellants/accused 2 to 5 in Crl.A.No.1092 of 2006. 13. Contentions (i) to (iii) are urged by the learned counsel for the appellant/1st accused; whereas contention (iv) is advanced by the learned counsel for the appellants/accused 2 to 5. We shall initially consider the contentions advanced by the learned counsel for the appellant/1st accused. 14. The prosecution placed heavy reliance on the oral evidence of PWs 2 and 3. They are the occurrence witnesses. They are the wife and minor son of the deceased. They along with the deceased were occupying the house. The 2nd accused, as stated earlier, is the father of the deceased. Accused 3 to 5 are his brothers. 1st accused is the husband of the youngest sister of the deceased. According to the prosecution, there was motive for the commission of the offence. The prosecution relied on the evidence of PW17 and other witnesses to prove its case of motive against the deceased. The oral evidence of PWs 2 and 3 was sought to be supported by the version given in Ext.P1 by PW1, the brother of PW2 after collecting the relevant information from PW2. The prosecution further relied on the Crl.A.Nos.1092 and 1738 of 2006 7 oral evidence of neighbours, who had come to the scene and who had played their part in taking the deceased to the hospital, about the dying declaration made by the deceased that he had suffered injuries at the hands of the 1st accused. 15. The crucial question is whether the oral evidence of PWs 2 and 3 can be believed. PW2 is the wife of the deceased and PW3, the son of the deceased. The incident had taken place at about 8.45 p.m. In fact, we find no serious dispute on the question that the deceased had suffered injuries at about 8.45 p.m on 03.07.2001 in the courtyard in front of the house of the deceased. PWs 2 and 3, the wife and son of the deceased, claim to be the eye witnesses. They are the most natural and probable witnesses who could have been present at the scene of the crime. They have narrated in detail the sequence of events which culminated with the planting of the stab injury on the abdomen of the deceased by the 1st accused with M.O1. Inherently and on broad probabilities we find absolutely no reason to approach the testimony of PWs 2 and 3, eye witnesses with any amount of doubt, distrust or suspicion. The oral evidence of PWs 2 and 3 show, and the totality of circumstances convincingly point to the acceptability of that version, that Crl.A.Nos.1092 and 1738 of 2006 8 primarily the disagreement was between the deceased son and the 2nd accused father. The 1st accused and accused 3 to 5 were even allegedly not having any motive directly against the deceased. It was the 2nd accused who had grievance about the deceased. The dispute was essentially and basically between the 2nd accused and the deceased. What we intend to note is that if, as contended by, the appellant/the 1st accused, he were not there at all and the deceased had suffered at the hands of some others, the probability of PWs 2 and 3 raising false allegations, not against the 2nd accused, but against the 1st accused, is not found to be probable or reasonable at all. In fact, we find no reason whatsoever to reject the oral evidence of PWs 2 and 3. Of course, there was strain in the relationship between the deceased on the one hand and accused 2 (and consequently accused Nos.1 and 3 to 5) on the other. This strain in the relationship between the 1st accused and PWs 2 and 3 does not, at any rate, persuade us to approach the evidence of PWs 2 and 3 with any amount of distrust. 16. The incident had taken place at about 8.45 p.m. On that very same night at 11.30 p.m, Ext.P1 F.I statement had been lodged by PW1 before PW8 and Ext.P1(a) F.I.R was registered. Crl.A.Nos.1092 and 1738 of 2006 9 The contents of Ext.P1 F.I statement given by PW1 (after collecting information from PW2) convincingly afford assurance to the court for the oral evidence of PWs 2 and 3. The nature of the injury suffered by the deceased described in Ext.P6 wound certificate by PW18 and later in Ext.P12 postmortem certificate by PW23 also affords convincing assurance for the oral evidence of PWs 2 and 3 about the manner in which the deceased had suffered the injuries. Nay it will be apposite straight away to note that even in Ext.P6 wound certificate, we find the version narrated to PW18 recorded, which version was given by one of the persons who accompanied the deceased to the hospital at 9.15 p.m, that the deceased has suffered the injuries at the hands of Prakashan, his brother in law , ie. the 1st accused. This earliest version given to the doctor recorded in Ext.P6 within a period of 30 minutes from the time of occurrence affords the final assurance to the court for the oral evidence of PWs 2 and 3. 17. We have also the oral evidence of PWs 5, 7 , 10 and 11 that the deceased, who was absolutely conscious while he was shifted to the jeep from the scene of the crime had lost consciousness at some point enroute to the hospital, had stated to them that he had suffered the injuries at the hands of the 1st Crl.A.Nos.1092 and 1738 of 2006 10 accused. This dying declaration made by the deceased also supports the oral evidence of PWs 2 and 3. 18. The evidence of PW6 further indicates that the 1st accused was available near the scene of the crime at about the time of occurrence. This piece of evidence also supports the oral evidence of PWs 2 and 3. 19. We do also have the evidence of recovery of M.Os1 to 3 under Exts.P4 and P5 mahazars after arrest of the 1st accused on the basis of the confession statements given by him to PW25. That evidence tendered by PW25 and the recovery of blood stained M.Os 1 to 3 on the basis of such confession statement does also go a long way to afford assurance for the version of PWs 2 and 3 about the complicity of the 1st accused. The medical evidence shows that the fatal injury could have been inflicted with a weapon like M.O1. We find no reason to doubt or discard this evidence of recovery. To sum up, we entertain not a scintilla of doubt about the acceptability of the oral evidence of PWs 2 and 3 about the manner in which the deceased suffered the fatal injury found on his person. 20. The learned counsel for the appellant/1st accused has advanced various contentions. He submits that sufficient light Crl.A.Nos.1092 and 1738 of 2006 11 may not have been available at the scene. The scene mahazar as well as the evidence of witnesses clearly show the distance between the house, where a kerosene lamp was placed, and the scene of the crime to indicate convincingly that light from that source must have been available at the scene of the crime. There is also the evidence that the deceased was carrying a torch light when he accompanied his brother in law/1st accused up to the scene where he suffered the injuries. Light from that source was available for PWs 2 and 3 to see the incident clearly. 21. The learned counsel for the 1st accused contends that at any rate, the entire version has not been spoken before the court by PWs 2 and 3 honestly. He submits that something untoward must have taken place at the scene where the deceased must have suffered the injuries. Going by the version of PWs 2 and 3 a sudden attack at the scene of the crime by the 1st accused against the deceased appears to be highly improbable, argues the counsel. The argument that it is extremely improbable that the 1st accused who did not indulge in any overt act till he reached the spot of occurrence, suddenly and without any provocation attacked the deceased does not appeal to us at all. We find no merit in this contention. We are Crl.A.Nos.1092 and 1738 of 2006 12 unable to pin point and state whether the 1st accused may have come to the scene of the crime with prior deliberation and was waiting for an opportune moment to inflict the injury on the deceased. At any rate, the available indications do not at all suggest any overt act or provocation on the part of the deceased to justify the conduct of the 1st accused either for claiming absolution from liability or mitigation. 22. We thus come to the safe conclusion that the deceased had suffered the injuries at the hands of the appellant/1st accused with M.O1 at the scene of the crime identified in Ext.P3 scene mahazar. That injury, the evidence of PWs 18 and 23 show, was sufficient in the ordinary course of nature to cause death. There cannot be any doubt that it was an intentional infliction of injury. There is absolutely nothing to suggest that the intention was not to inflict the injury that was actually suffered. The offence is hence culpable homicide defined under Section 299 I.P.C and the same gets exalted to the offence of murder defined under Section 300 I.P.C by the play of the third clause of Section 300 I.P.C. Though a contention is raised that the offence can slide back again to the offence defined under Section 299 I.P.C by the play of the first exception to Section 300 I.P.C, we find absolutely Crl.A.Nos.1092 and 1738 of 2006 13 no material which can help the 1st accused to bring the case back to Section 299 I.P.C for seeking protection of the first exception to Section 300 I.P.C. 23. We do, in these circumstances, came to the conclusion that the verdict of guilty and conviction of the appellant/1st accused under Section 302 I.P.C is absolutely justified. The lesser alternative sentence permissible under law - a sentence of imprisonment for life alone, has been imposed for that offence. The sentence also, we are satisfied, does not warrant interference. 24. Having so confirmed the complicity of the 1st accused for the principal offence of murder under Section 302 I.P.C committed by him directly, we are now proceeding to consider the challenge against the verdict of guilty, conviction and sentence imposed on appellants/accused under Section 120 B r/w 302 I.P.C. We have heard the learned counsel for the appellants/accused and the learned Public Prosecutor in detail on this aspect. 25. At the very outset, we must note that direct evidence about conspiracy cannot be expected by any prudent mind ordinarily. A criminal conspiracy by its very nature is hatched in Crl.A.Nos.1092 and 1738 of 2006 14 secrecy and absolute confidentiality. If the evidence of an accomplice or approver is not secured, the prosecution will not normally be able to place evidence before the court of such conspiracy between the criminals. While it is true that such direct evidence of conspiracy cannot be expected ordinarily, it is equally trite that the court must be really careful and cautious before swallowing the allegations of conspiracy against the indictees. Satisfactory evidence of existence of conspiracy must certainly be placed before court to persuade a court to come to the conclusion that the offence of criminal conspiracy has been committed. 26. We have been taken through the entire evidence. We must say that we are totally dissatisfied about the evidence of the alleged conspiracy. We therefore requested the learned Public Prosecutor to explain to us the specific circumstances on which the prosecution wants to rely, to drive home its contention that the 1st accused had committed the overt act against the deceased or must have committed the overt act against the deceased not on his own but because of a conspiracy hatched by accused 1 to 5. Crl.A.Nos.1092 and 1738 of 2006 15 27. We cannot also afford to ignore the fact that the dispute after all was between the deceased and the 2nd accused, his father. His other brothers accused 3, 4 and 5 and his brother in law, the first accused, were also taking sides with the father in the dispute between the 2nd accused and the deceased. A convenient and ready inference of conspiracy between such close relatives cannot, according to us, be readily drawn in the facts and circumstances of this case. After all, a father and 3 brothers are alleged to have conspired with a brother in law to commit the murder of the deceased, who is their son/brother/brother in law. We are in agreement with the learned counsel for the appellants/accused 2 to 5 that evidence will have to be carefully and cautiously evaluated before sailing to a conclusion that the 1st accused must have acted in furtherance of a conspiracy hatched by accused 1 to 5 to do away with the deceased. 28. What are the circumstances? The learned Public Prosecutor relies on the following circumstances to drive home the case of criminal conspiracy advanced by the prosecution. i) Motive - That there was strain in the relationship between the deceased on the one hand and the 2nd accused, his Crl.A.Nos.1092 and 1738 of 2006 16 father, on the other. Accused 1 and 3 to 5 were obviously taking sides with the father, the 2nd accused. ii) The 1st accused did not have any such compelling motive against the deceased to perpetrate the overt act on his own against the deceased. The 1st accused must have been instigated by some others and those others could not have been anyone other than accused 2 to 5. iii) Accused 2 and 3 had told witnesses like PWs 2, 5 and 7 that arrangements have been made for final resolution of all conflicts and that all such conflicts will be over within a short period of time. iv) PWs 5 and 10 were told by the 2nd accused that he had given his youngest daughter in marriage to the 1st accused to meet the challenge of the deceased. v) PW6, a neighbour, had earlier on that night at about 8 to 8.30 p.m seen the 1st accused moving to the house of the 2nd accused. vi) Even though there was a commotion after the deceased suffered injuries and many local inhabitants had come to the scene, no one from the houses of accused 2 to 5 which are Crl.A.Nos.1092 and 1738 of 2006 17 situated close to the scene of the crime had come to see the deceased. vii) Accused 2 to 5 had not gone to the hospital nor had they attended the funeral of the deceased. 29. Thus according to the prosecution this is a case where the charge of conspiracy is attempted to be established by circumstantial evidence. No direct evidence of conspiracy is available. The learned counsel for the appellants wants to remind this Court about the axiomatic principles relating to appreciation of evidence in a case resting on circumstantial evidence. It is not necessary for us to advert to precedents on this point. The law is well established and trite that in a case of circumstantial evidence, the burden rests heavily on the prosecution to establish all circumstances satisfactorily by cogent evidence. Such circumstances must be strong links and together they must constitute a strong chain. Such strong chain of circumstances must unerringly point to the guilt of the accused and must rule out satisfactorily any hypothesis of innocence of the accused. This burden on the prosecution must be discharged by the prosecution satisfactorily before a finding Crl.A.Nos.1092 and 1738 of 2006 18 adverse to an indictee can be entered on the basis of circumstantial evidence. 30. We now proceed to consider the circumstances. The first circumstance relied on by the prosecution is the motive. It is true that we have evidence to show that accused No.2 had disputes with the deceased. This dispute related to cutting down of trees standing in a property which the 2nd accused had given to the deceased. It is also indicated that the deceased had a grievance that his youngest child had suffered disablement on account of some overt act committed by the 2nd accused. It is further alleged that the deceased had leased out land to PW17 to carry out bitter guard cultivation in that property. Earlier it was PW17 who had cut down the trees as authorised by the deceased. The prosecution has a further case, though that case is not substantiated by any documentary evidence summoned from the police station that on the complaint of PW17, accused 2 to 5 were compelled to report before the police station on every day. All these together can only establish