IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 Death Sentence Ref..No. 2 of 2008() ----------------------------------- SC.18/2008 of D.C. & SESSIONS COURT, ERNAKULAM .................... COMPLAINANT -------------------- STATE OF KERALA, REP. BY C.I OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. BY PUBLIC PROSECUTORS SRI.K.J.MOHAMMED ANZAR & SRI.NOBLE MATHEW RESPONDENT : --------------- AMALRAJ @ CHANDU, S/O.MURALEEDHARAN, AGED 19/07, ALASSERY (H), PULAYA COLONY, MALIPPURAM, ELAMKUNNAPPUZHA. THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 23/02/2010 ALONG WITH CRA NO.1291 OF 2008 & CRA NO.268 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ************************* D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 ****************************** Dated this the 23rd day of February 2010 JUDGMENT BASANT, J. Is the complicity of the appellants proved? Are there sufficient circumstances pointing to the guilt of the appellants/accused Nos.1 to 3? Is the conviction and imposition of sentence simultaneously under sections 302 and 201 IPC on the principal offenders justified? Is the imposition of a death sentence on the 18 year old first accused justified? These are the questions that arise for consideration before us. 2. Three accused persons have been found guilty, convicted and sentenced in a prosecution for criminal conspiracy to commit murder and allied offences (Section 120B read with Section 302 IPC), murder (Section 302 IPC read with Section 34 IPC), house trespass (Section 450 read with Section 34 IPC) and causing the evidence to disappear (Section 201 read with Section 34 IPC). The 1st accused has further been found guilty, convicted and sentenced under Section 302 read with Section 109 IPC also. The first accused faces a sentence of death, while D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 2 others face a sentence of imprisonment for life. The 4th person (4th accused) who faced indictment along with the appellants was found not guilty and acquitted. Appeals are preferred by the first accused (Crl.Appeal No.1291/2008) and accused Nos.2 and 3 (Crl.Appeal.No.268/2010). The death sentence imposed by the court below has been referred to this Court for confirmation and the same has been numbered as D.S.R.No.2/2008. We are proceeding to dispose of the two appeals and the D.S.R. by this common judgment. 3. To the charge/factual allegations first: Deceased M.P.Abraham was a Senior Advocate of standing at the High Court of Kerala. He was found dead in his Chamber at 7.15 p.m. on 12.7.2007. Six months prior to his death, he had engaged the young first accused as an assistant Clerk in his office. The young man (date of birth: 02.04.1989 as conceded by the prosecution) hails from the economically backward section of society. He was getting acquainted with the work in the office and the affluence of the Advocate, his master. He had criminal instincts in him, alleges the prosecution. He committed theft of MO28 mobile phone belonging to his master. He allegedly stole an ATM card of his employer. He was quick to realise the great potential for D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 3 criminal behaviour at his new place of work. He had access to the cheque books of his master. He allegedly stole a cheque leaf, forged it and clandestinely siphoned out an amount of Rs.30,000/- from his master's account. That was as per Ext.P18 cheque dated 16.5.2007. That his misdeeds were not detected allegedly encouraged him to continue his activities. He happened to realise that his master had a very big and fat amount in his bank account. He toyed with the idea of siphoning out funds from the bank account of his master. He knew that he will be caught, if he embarks on bigger game plans. He wanted such money; but wanted to avoid getting caught. Liquidating his master after siphoning out a big amount from his bank account was the idea that the devil planted in his young wicked brain. He contacted the 4th accused, a friend of his, who allegedly had connections with the underworld. The 4th accused in turn contacted his brother the 2nd accused. He brought in the 3rd accused. All the four accused allegedly conspired together. The 1st accused decided to siphon out funds before doing away with the deceased. After siphoning out the funds before giving time and opportunity to the deceased to detect the crime, he was to be liquidated by the conspirators. Precise date of the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 4 conspiracy is not specifically averred by the prosecution. According to the prosecution, the conspiracy was hatched some time after Ext. P18 cheque was fraudulently encashed on 16.5.2007 and before the date on which the deceased was murdered, i.e.,12.7.2007. The 2nd accused, one of the conspirators, wanted a mobile phone to execute the object of the conspiracy. MO28 which was stolen from the possession of the deceased by the 1st accused was handed over by the 1st accused to the 2nd accused after obtaining the connection in the name of a relative of the 1st accused. Accused Nos.2 and 3 thereafter started making arrangements to implement the object of the conspiracy. A motor cycle was requisitioned for the purpose, under Ext.P35. They procured MO1, a bundle of waste cotton allegedly for the purpose of suffocating and strangulating the deceased. They allegedly purchased plastic wire of which MO6 and MO13 are portions, for the purpose of being carried to the scene of the crime allegedly to tie the hands of the deceased and to immobilise him before they could attempt to kill him by passing electric current through him. They purchased an electric pin and wire of which MO11 is the remnant to facilitate such attempt to electrocute the deceased. They were ready for D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 5 the operation. With the help of the 3rd accused, the 1st accused withdrew an amount of Rs.3 lakhs on 10.7.2007 under Ext.P19 forged cheque. Before the actual criminal operation of the conspirators, on 11.7.2007, a further amount of Rs.5 lakhs was withdrawn by the 1st accused using the forged Ext.P20 cheque. Of the amount so siphoned out, Rs.6 lakhs was deposited by the 1st accused in the name of PW10 Sheeba in an account maintained by her. Accused Nos.1 to 3 allegedly converged at the office of the deceased Advocate on the evening of 12.7.2007. Accused Nos.1 and 2 were in contact making use of MO28 and MO30 mobile phones which they had in their respective possession. All the three allegedly trespassed into the office of the deceased and there in prosecution of the common object of the conspiracy, they attacked the deceased, strangulated him and caused his death. The prosecution has a case that an attempt was made to cause his death by passing electric current. But that attempt did not succeed and that is why they resorted to manual strangulation and smothering of the deceased. The miscreants went away from the scene of the crime unnoticed by anyone. The deceased did not go home (his house was adjacent to his office) as usual on that evening to watch the T.V. news and D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 6 his wife contacted PW1 a young Advocate neighbour. On that note of alarm, PW1 went to the office of the deceased and it was he who found the deceased lying dead there. A portion of MO1, MO2, MO6 and MO11 were found at the scene. The prosecution has a case that MO12 towel was found to be missing from the scene of the crime. PW1 lodged Ext.P1 complaint before the police. Ext.P1(a) FIR was registered by PW43 on the basis of Ext.P1. The police had no clue of the possible offenders. It appears that for some period initially they groped in the dark. Ultimately, siphoning out of the funds was ascertained and the police resolved the mystery and identified the conspirators/offenders. Final report was filed by PW46 after completing the investigation. 4. The case was committed to the Court of Sessions. Cognizance was taken by the learned Sessions Judge. The accused denied the offences alleged against them. Thereupon the prosecution examined PWs 1 to 46 and proved Exts. P1 to P85. Mos 1 to 42 were also marked by the prosecution. 5. In the course of cross examination of witnesses and when examined under Section 313 Cr.P.C., the 1st accused, the alleged principal offender did not dispute the drawal of a total amount of Rs.8,30,000/- (Rupees Eight Lakhs and Thirty D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 7 Thousand only) under Exts. P18, P19 and P20 by him. He took up a plea that the said amount as also MO28 mobile phone were handed over to him by his master, the deceased, voluntarily. Possession of those did not amount to or indicate any culpable act, it was urged. Accused Nos.2 and 3 took up a defence of total denial. The accused were called upon to enter on defence. Dws 1 and 2 were examined by the 3rd accused. Exts. D1 to D7 were also marked on the side of the accused in the course of the trial. 6. The learned Sessions Judge on an anxious evaluation of all the relevant circumstances sailed to the conclusion that conspiracy between accused Nos.1 to 3 has been established satisfactorily. The court further found that the evidence available on record satisfactorily establishes the complicity of accused Nos.1,2 and 3 for the offences alleged against them. The court found that the involvement of the 4th accused in the crime and in the commission of the offence has not been established satisfactorily and conceded to the 4th accused, the benefit of doubt. Accordingly, the court below proceeded to pass the impugned verdict of guilty, conviction and sentence against accused 1 to 3. As stated earlier, the 1st accused faces a sentence of death for the offence under Section 302 IPC and the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 8 other two accused/appellants face a sentence of imprisonment for life. We are not at this juncture adverting to the various other sentences imposed. 7. Detailed arguments have been advanced before us by the learned counsel for the appellants Shri J.S.Ralph and the learned Public Prosecutors Shri K.J.Mohammed Anzar ( in the D.S.R.) and Shri Noble Mathew (in the Crl.Appeals). The learned counsel for the appellants assails the impugned verdict of guilty, conviction and sentence on the following grounds. (i) The court below ought to have held that the prosecution case resting on circumstantial evidence has not been established satisfactorily and that the appellants/accused are entitled, at any rate, to the benefit of doubt. (ii) The conviction under Section 201 IPC after entering a conviction under Section 302 IPC is at any rate legally unsustainable and opposed to accepted and settled practice. (iii) In the absence of a specific charge against the 1st accused, his conviction under Section 302 IPC principally and the sentence of death D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 9 imposed for the said offence is legally unsustainable. 8. The learned Public Prosecutors on the contrary assert that there is satisfactory proof beyond doubt to support the verdict of guilty and conviction of all the three appellants. The learned Prosecutors further contend that this is certainly a case falling within the sweep of 'rarest of rare cases' where the imposition of the sentence of death on the 1st accused by the court below is absolutely justified. 9. We shall now proceed to consider the contentions. At the outset, we must mention that an appellate judgment is and must be read in continuation of the judgment of the trial court. It has to be read and understood in that manner. The court below has narrated oral and documentary evidence relied on by the prosecution and the defence in detail. It is unnecessary for us to attempt to re-narrate all the relevant pieces of evidence afresh in this appellate judgment. We may advantageously observe that the oral evidence of PWs 1 to 46 has been read to us in detail by the learned counsel for the appellants. We have been taken through the oral evidence of Dws 1 and 2 also. Exts.P1 to P85 and Exts. D1 to D7 have been also read over to us D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 10 in detail. We have anxiously considered all these relevant pieces of evidence. The same have been discussed at the Bar. We shall, though we are not re-narrating the relevant pieces of evidence, advert to the relevant pieces of evidence as and when necessary in the course of discussions in this appellate judgment. 10. At the outset, we must note two crucial aspects. The prosecution relies on circumstantial evidence and has not been able to trace any eye witness or secure the services of any approver/accomplice. The prosecution case rests only on circumstantial evidence. It is too trite to require reference of any precedents; but we shall remind ourselves that in a case resting on circumstantial evidence, the burden is heavily on the prosecution to prove all circumstances satisfactorily by cogent evidence. Such circumstances must form strong links which together constitute a strong chain of circumstances, which can point unerringly to the guilt of the accused. It must also be ensured that such chain of circumstances effectively excludes and rules out the possibility of any hypothesis of innocence of the accused. 11. The second aspect that we have to advert to is the fact that it would be totally imprudent and artificial for a court to D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 11 look for direct ocular testimony to prove the prosecution's case of conspiracy. A conspiracy inherently and by its very nature is conceived by the conspirators in secrecy and confidentially and the prosecution cannot be found fault with if the prosecution is unable to produce any direct evidence of such conspiracy before court. 12. Having thus reminded ourselves of these two axiomatic premises, we shall now have a look at the nature of the circumstances relied on by the prosecution to drive home the charge against the accused. We shall discuss these circumstances in greater detail, later. But, initially, we shall only attempt to narrate the circumstances. They are: (1) That the deceased met with homicidal death by strangulation at his office in the heart of the Cochin City at about 7.15 p.m. on 12.7.2007. There are also satisfactory indications to suggest that an attempt was made to electrocute him. (2) Inherently and on broad probabilities, the crime could only be the result of a conspiracy by the miscreants. Accused Nos.2 and 3 have no trace of any motive against the deceased. D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 12 (3) The 1st accused had siphoned out funds clandestinely from the account of the deceased and he had every reason to entertain a motive to liquidate the deceased. (4) The 3rd accused had helped the 1st accused in his attempt to clandestinely siphon out an amount of Rs.3 lakhs under Ext.P19 on 10.7.2007. (5) MO28 mobile phone stolen by the 1st accused from his master, the deceased, was handed over by him to the 2nd accused, another conspirator. (6) There were frequent telephone calls between the 1st and 2nd accused using MO28 and MO30 cell phones on days, immediately prior to the incident. (7) Accused Nos.2 and 3 had embarked on a spree to procure materials to implement the purpose of the conspiracy by the conspirators; they had procured a motor cycle under Ext.P35, MO1 cotton, MO6/13 plastic rope and a pin and electric wire of which MO11 is a part. D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 13 (8) Presence of accused Nos.1 to 3 at or near the scene of the crime is indicated by the telephone calls between them at or near the scene of the crime immediately prior to the commission of the crime. (9) MO2, a wrist metal bangle belonging to the 3rd accused happened to be available at the scene of the crime. (10) The 3rd accused attempted to abscond and conceal his presence after the occurrence. (11) Subsequent to the crime, the 1st accused was involved in a mala fide attempt to make documents (Exts. P6 and P7) to explain the ill gotten money. (12) MO12, a towel which was available at the scene of the crime was recovered from its place of clandestine disposal near the house of the 1st accused as pointed out by the 1st accused to the Investigating Officer. (13) Some cotton, which is now kept as part of MO1 was recovered by the Investigating Officer as D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 14 pointed out by the 3rd accused after his arrest and the same was part of the other part of MO1 seized from the scene. (14) The 2nd accused made an extra judicial confession of the involvement of accused Nos.1 to 3 in the murder of the deceased, to PW16. (15) MO13 which was similar to MO6 found at the scene of the crime was recovered along with MO12 by the Investigating Officer as pointed out by the 1st accused after his arrest. 13. We shall anxiously consider the criticism that these circumstances have not been satisfactorily established. We shall take up the circumstances one after the other. 14. Regarding the first circumstance, we find that there is no serious dispute. The deceased had met with homicidal death on 12.7.2007. Of course, we note that there is some inconsequential dispute as to whether the deceased was already dead when PW1 saw him or he had breathed his last later while he was removed to the hospital. That controversy does not appear to be relevant in any way. The mere fact that PW4, the paramedical technician from the Medical Trust Hospital felt that D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 15 everything may not have been over when he saw the deceased and took him to the ambulance is according to us not in any way crucial or vitally relevant. All indications must suggest to us that the deceased was dead even when PW1 saw him. That the death was homicidal and that there was an attempt to electrocute him are seen established satisfactorily by the oral evidence of PW35 and Ext.P46 postmortem certificate. There is no serious dispute raised before us about the cause of death. The whole gamut of the dispute is only about the responsibility for the death. We hold that the first circumstance has been established satisfactorily. 15. The second circumstance relied on by the learned Prosecutors before us is that the murder of the deceased must have been the work of conspirators who had schemed and planned the operation. On this aspect also, we do not entertain a semblance of doubt in the light of the totality of the facts and circumstances. On this aspect also, we find no scope for dispute. The miscreants, whoever they be, had done their homework well and had come to the scene of the crime with the deliberate intention of liquidating the deceased. That there must have been a conspiracy hatched by the miscreants, whoever they were, is D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 16 clear from the totality of circumstances. Further, accused Nos.2 and 3 are not shown to have any motive against the deceased or prior acquaintance with the 1st accused. If accused Nos.1 to 3 are found to have acted in concert, the existence of a conspiracy must be held to have preceded definitely. It is of relevance to note that accused Nos.1 to 3 have no case that they were known to each other earlier, though it is the case of the prosecution that the 4th accused was known to the 1st accused earlier. We hold that the 2nd circumstance is also proved. 16. The third circumstance is that the 1st accused had clandestinely siphoned out funds to the tune of Rs.8.30 lakhs from the account of the deceased under Exts.P18 to P20. Those cheques do not bear the signature of the deceased. Signatures therein, the expert testimony confirms, were not affixed by the deceased and were affixed by the 1st accused. It is unnecessary to delve deeper into that controversy, as the 1st accused has made a clean breast and has told the court that the cheques were not signed by the deceased; but were signed by him. He took up a defence that his master, the deceased, had permitted him to sign cheques on his behalf, - i.e., a blanket permission was given to the 1st accused to forge the cheques by affixing the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 17 signature of the deceased and withdraw money. Less said about this theory, the better. Criminal trial cannot be an avenue for fanciful flight of imagination. Even the version of an accused has to stand the test of reasonableness and acceptability. In one breath, the 1st accused suggests that his kind and considerate employer had given him money to meet personal requirements. But, surprisingly, it is stated that the deceased did not sign the cheques, but permitted the 1st accused, his Clerk of about six months' standing to sign the cheques in his name. Bottom is knocked out of this theory that the deceased had willingly given this amount of Rs.8.30 lakhs to him, when we consider the fact that the first accused did not collect the amounts himself, issued them in the names of others, got them collected through some others and deposited the proceeds not in his own account, but in the account of somebody else. We are in these circumstances absolutely certain that the theory of the deceased voluntarily handing over the amount of Rs.8.30 lakhs to the 1st accused can and must be rejected outright. It is true that the first instance of forgery and clandestine withdrawal escaped the notice of the deceased. This emboldened the 1st accused to embark on the misadventure. The accused must have been absolutely certain D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 18 that if such big amounts as Rs.3 lakhs and Rs.5 lakhs, as withdrawn under Exts.P19 and P20, were siphoned out, the deceased was bound to detect the same. To avoid detection and to save himself, the 1st accused can certainly be held to entertain a motive to do away with the deceased. He, the available indications suggest unmistakably, must have wanted to liquidate the deceased to avoid detection of his crime and to help him to keep for himself the ill gotten wealth. The third circumstance, we find, is thus established without any semblance of doubt. 17. The prosecution relied on the fourth circumstance that the 3rd accused, the conspirator extended help to the 1st accused to facilitate clandestine withdrawal of the amount on 10.7.2007. On that aspect also, we find no semblance of doubt. We have identification from the bank staff about the person (3rd accused) who encashed the amount. They have shown satisfactory reasons as to why they remembered that fact. Of course, as observed by the learned Sessions Judge, it does not bring credit to the bank officials that they did not alertly intervene and prevent such clandestine siphoning out of funds. But the fact remains that the involvement of the 3rd accused is proved. The evidence of the handwriting Expert also confirms D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 19 and is in tandem with the evidence of bank officials that it was the 3rd accused who withdrew the amount from the account using Ext.P19 cheque. The prosecution relies on this aspect not only to prove the motive, but also as one of the early indications of the existence