IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 CRL.A.No. 493 of 2006() ----------------------- SC.310/2002 of ADDL.SESSIONS COURT (ADHOC), ALAPPUZHA CP.29/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... APPELLANT(S): ACCUSED --------------------- 1. RAJU @ KALAN RAJU, AGED 42 YEARS, S/O.DAMODARAN, NEDUMCHIRA VEEDU, NEDUMCHIRA COLONY, WARD NO.3, CHERTHALA SOUTH PANCHAYATH, ALAPPUZHA DISTRICT. 2. SURESH @ KOOTTALI SURESH, AGED 28 YEARS, S/O.RUDRAN, GIRIJAN COLONY, KURUPPANKULANGARA, WARD NO.3, CHERTHALA SOUTH PANCHAYATH. BY ADV. SRI.P.T.BINDURAJ SRI.M.R.ARUN KUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2010, ALONG WITH CRA NO.925 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Crl.A.Nos.493 of 2006 & 925 of 2007 ---------------------------------------- Dated this the 12th day of March 2010 JUDGMENT Basant,J These appeals are preferred by three accused persons who, in the same crime, faced allegations under Sections 120B, 302,341 and 323 read with 34 I.P.C. The 1st accused has preferred Crl.A.No.925/07 whereas accused 2 and 3 have preferred Crl.A.No.493/2006. The 1st accused was not available for trial when the trial against accused 2 and 3 was taken up. They were tried separately. Subsequently, the 1st accused became available for trial. Separate trial was held against the 1st accused. 2. In such separate trials, accused 1 to 3 have been found guilty, convicted and sentenced under Sections 302, 120B and 341 read with 34 I.P.C. In both cases, the accused have been found not guilty and were acquitted of the offence under Section 323 I.P.C. A sentence of imprisonment for life and fine of Rs.25,000/- has been imposed on the 1st accused/appellant under Section 302 I.P.C. Accused 2 and 3 faced the sentence of Crl.A.Nos.493/06 & 925/07 2 imprisonment for life and fine of Rs.10,000/- each. Separate identical sentences have been imposed on the appellants for the offences punishable under Sections 120B and 341 I.P.C. Substantially identical evidence has been adduced in both trials. We shall hence proceed to dispose of these appeals together by this common judgment. Care shall be taken to ensure that the verdict of guilty, conviction and sentence in each case against the respective appellants are considered solely on the basis of the evidence available in the respective separate trials held against them. 3. The crux of the charge against accused 1 to 3 is that they, in furtherance of their common intention, at about 4.30 p.m on 22/09/2000 attacked deceased Anil Kumar and one Chandran. The said Chandran suffered simple hurt whereas the deceased Anil Kumar suffered the fatal stab injury at the hands of the 1st accused when he was held by the 2nd accused. It is the case of the prosecution that accused 1 to 3 had gone together to the place of occurrence and had returned together from the place of occurrence after the incident. The prosecution alleged that the third accused was present at the scene and he had shouted after Crl.A.Nos.493/06 & 925/07 3 the incident if there was anyone more to be tackled. The prosecution alleged that accused 1 to 3 had hatched a criminal conspiracy to indulge in the crimes which they committed and all three of them had acted in furtherance of their common intention at the scene of the crime. 4. Investigation commenced with Ext.P1 F.I.S lodged by PW1 on the basis of which Ext.P1(a) F.I.R was registered at 6.10 p.m on 22/09/2000, the incident having taken place earlier at 4.30 p.m. The F.I.R, it is noted, had reached the learned Magistrate at 3.30 p.m on 23/09/2000. Investigation was completed by the investigating officer who filed the final report. 5. The learned Magistrate committed the case to the court of Session. The 1st accused was not available for trial. Accused 2 and 3 faced the trial in S.C.No.310/2002. In that case, prosecution examined PWs 1 to 16 and proved Exts.P1 to P11. Mos 1 to 7 were also marked. On the side of the accused, the officer who filed the final report, who was not examined by the prosecution, was examined as DW1. Exts.D1, D1(a) and D2 were marked on the side of the accused. 6. The 1st accused faced trial in S.C.No.304/2005. In Crl.A.Nos.493/06 & 925/07 4 that case, the prosecution examined PWs 1 to 16 and proved Exts.P1 to P14. Mos 1 to 7 were also marked. The 1st accused in that case did not adduce any evidence oral or documentary. 7. The learned Sessions Judges, by their separate judgments, came to the conclusion that the prosecution has succeeded in proving that the fatal injury was inflicted by the 1st accused by stabbing the deceased with MO1 knife. The courts further came to the conclusion that the 1st accused had planted the stab injury on the deceased when the 2nd accused held him to facilitate infliction of such injury. In both cases, it was found that the 3rd accused was present at the scene of the crime and had uttered words conveying that he had shared the common intention and of his being a conspirator. The courts below however came to the conclusion that the prosecution has not succeeded in proving that Chandran, the injured (who was examined as PW2 in the trial against the 2nd and 3rd accused) had suffered any injury. In these circumstances, both courts came to the conclusion that the appellants/accused are not proved to be guilty of the offence punishable under Section 323 I.P.C. Accordingly, the court below proceeded to pass the impugned Crl.A.Nos.493/06 & 925/07 5 judgments. 8. An appellate judgment is and must be read as a continuation of the judgment of the trial court. The trial courts, in these cases have referred in detail to the oral and documentary evidence adduced before them. It is, in these circumstances, not necessary for us to attempt a re-narration of all the relevant facts and circumstances and pieces of evidence available in this appellate judgment. Suffice it to say that the learned counsel appearing for the appellants have taken us through the oral and documentary evidence available in each case in detail. Our attention has been drawn to all the oral and documentary evidence as also all the other materials and matters available in both cases. Reference shall be made by us in the course of discussions to the relevant materials, if necessary. 9. The learned counsel for the appellant/1st accused in Crl.A.No.925/07 assails the verdict of guilty, conviction and sentence imposed on the appellant on the following grounds: i) The court below erred perversely in coming to the conclusion that the charge under Section 120B I.P.C has been established satisfactorily by the prosecution evidence. Crl.A.Nos.493/06 & 925/07 6 ii) The court below erred in coming to the conclusion that the oral evidence of the eye witnesses - PWs.1,3,4 and 5 can be safely accepted to come to the conclusion that the appellant had planted the fatal injury on the deceased with MO1 weapon. iii) At any rate, the benefit of doubt must have been conceded to the appellant/1st accused. 10. The learned counsel for the appellants in Crl.A.No.493/06 assails the impugned verdict of guilty, conviction and sentence against the said appellants on the following grounds: i) The court below erred perversely in coming to the conclusion that the prosecution has succeeded in establishing the charge of criminal conspiracy punishable under Section 120B I.P.C. ii) The court below erred in coming to the conclusion that the oral evidence of PWs.1 to 4 can be safely accepted to come to the conclusion that the fatal injuries were inflicted on the deceased by the 1st accused in furtherance of the common intention of accused 1 to 3. iii) At any rate, the court below ought to have held that Crl.A.Nos.493/06 & 925/07 7 accused 2 and 3 did not share any common intention with the 1st accused and consequently they should not have been made liable with the help of Section 34 I.P.C. iv) In any view of the matter, the court below should have conceded the benefit of doubt to the appellants/accused 2 and 3. 11. We may, at the outset, note that the evidence adduced in both cases is substantially identical. Four eye witnesses were examined in both cases. As stated earlier, Chandran, in respect of whom the allegations are raised under Section 323 I.P.C, was examined as PW2 in S.C.No.310/02. But he was not examined in S.C.No.304/05 as he was not available and was hospitalised when the trial in that case started. Instead of the said Chandran, who was examined as PW2 in the trial against accused 2 and 3, another eye witness, one Dileepkumar was examined as PW3 in subsequent trial against the 1st accused. 12. We shall, first of all, consider the question whether the charge under Section 120B I.P.C has been satisfactorily established in both cases. The prosecution, in support of this charge, wanted to examine the same pair of witnesses in both cases. One Mohanan and Subhakesan alias Babu are the Crl.A.Nos.493/06 & 925/07 8 witnesses examined by the prosecution - as PWs 7 and 8 respectively in the trial against accused 2 and 3 and as PWs 9 and 8 respectively in the trial against the 1st accused. We have been taken through the identical evidence tendered by these two witnesses in both cases. The witness Mohanan only states that he found accused 1 to 3 talking to each other in front of the house of the third accused. The witness Subhakesan who runs a toddy shop only stated that he found accused 1 to 3 speaking to each other at the toddy shop where they had come to consume toddy prior to the occurrence. We have further evidence that all the three accused came to the scene of the occurrence together. We have also evidence to show that, after the incident, all the three accused went back from the scene of the crime together. The prosecution relies on motive for accused 1 to 3 against the deceased and the injured Chandran. It is alleged that there was a raid in the colony in which the 3rd accused resides prior to the occurrence and the accused persons allegedly entertained an impression that injured Chandran and the deceased had furnished information to the authorities and such information had led to such raid to trace and recover contraband articles Crl.A.Nos.493/06 & 925/07 9 under the Kerala Abkari Act. 13. The learned counsel for the appellants argue that this unconvincing, vague and general evidence tendered by these two witnesses, in the absence of any better and satisfactory indications to prove a criminal conspiracy, is insufficient to come to a conclusion that all the three had entered into an agreement to commit criminal offences. It is trite that it would be very difficult for the prosecution to attempt to adduce direct ocular testimony about the agreement between the conspirators. A criminal conspiracy is, by its very nature, conceived and executed in secrecy and in absolute confidentiality. In such circumstances, it would be artificial to expect the prosecution to adduce evidence to establish the alleged criminal conspiracy. At the same time, it must be noted very alertly that satisfactory indications of conspiracy must be shown to exist. The mere opportunity for prior concert cannot, ipso facto, lead to a conclusion or inference about a criminal conspiracy being hatched. In the nature of evidence which is placed before court, we must say that the evidence falls significantly short of the requisite proof to establish a criminal conspiracy. Only Crl.A.Nos.493/06 & 925/07 10 opportunity for meeting of minds is indicated. Even if we accept the oral evidence of those two witnesses referred above, there is nothing to indicate that accused 1 to 3 were conspirators or that they embarked on a course to commit any offence on the basis of any conspiracy hatched by them prior to the occurrence. We are satisfied that the appellants/accused in both cases can unhesitatingly be conceded to the benefit of doubt on this aspect. We hold that the prosecution has not succeeded in proving the allegations of criminal conspiracy against accused 1 to 3 by the identical evidence adduced in both cases. Their verdict of guilty, conviction and sentence under Section 120B I.P.C, in these circumstances, deserves to be set aside. The challenge on this aspect succeeds. 14. In both cases, the prosecution relies on the oral evidence of four witnesses who had allegedly witnessed the occurrence. The informant Sunil Kumar is the first witness relied on by the prosecution. The prosecution wants the prompt F.I.Statement lodged by PW1 to be utilised to draw inspiration and support for the oral evidence of PW1. It is the case of the prosecution that seven persons including the deceased and the Crl.A.Nos.493/06 & 925/07 11 informant were working near the scene of the crime to unload a lorry which had come to that house to unload metal (granite stones). In both cases, the prosecution examined one of the said seven witnesses in addition to the informant to drive home the charge. The other injured PW2 was examined in the trial against accused 2 and 3. In the absence of the said witness, one Dileep Kumar, who was one of the seven, was examined as PW3 in the trial against the 1st accused. In both cases, the prosecution examined one Kamalam who runs a toddy shop near the scene of the crime and who had allegedly witnessed the occurrence. One John who is an employee of one Prabhakaran Pillai, who has a shop near the scene of the crime, was examined in both cases by the prosecution. He was examined as PW4 in both cases. Thus the prosecution relied on the oral evidence of the said four eye witnesses in both cases. 15. We shall come to the evidence of the four eye witnesses a little later. We note that the prosecution had examined two witnesses - one Manoj and Sunilkumar who are autorickshaw drivers, who allegedly were available in the autorickshaw stand nearby. They had not witnessed the incident Crl.A.Nos.493/06 & 925/07 12 proper; but they had taken the injured/deceased to the hospital. In both cases, the prosecution had examined one Sunildas (as PW6 in both cases) who, though he was not an eye witness, had allegedly seen accused 1 to 3 returning from the scene of the crime - the 1st accused holding MO1. As stated earlier, this witness also stated that he had also taken the deceased to the hospital. It is unnecessary to advert in detail to the other pieces of evidence adduced by the prosecution. They are more or less formal in nature. The only other witness of relevance to whom we should refer to is the investigating officer , who allegedly had arrested accused 1 to 3 in the course of investigation. It is the case of the prosecution that the 1st accused was arrested on 03/01/2001. The second accused was arrested on 11/10/2000 whereas the 3rd accused had surrendered before the learned Magistrate and was given over to police custody on 07/11/2000. The arrest of accused 2 and 3 are not of any crucial relevance except perhaps to suggest that they were not available at the scene of the crime for some days after the occurrence. The prosecution relies on the evidence of the investigating officer, who was examined as PW16 in both cases, inter alia to show that Crl.A.Nos.493/06 & 925/07 13 MO1 knife which was allegedly used for the infliction of the injury on the deceased was recovered by PW16 on 04/01/2001 in the presence of witnesses. Such recovery was allegedly made from the premises occupied by the 1st accused where it was concealed under the tiled roof pierced into the space available between rafters. The recovery mahazer and the relevant information were marked as Ext.P4 and Ext.P4(a) in the trial against accused 2 and 3 and as Ext.P3 and Ext.P3(a) in the trial against the 1st accused. One Sadanandan, who was an attestor to the said seizure mahazer, was examined in both cases by the prosecution as PW10. 16. In both cases, the accused took up a defence of total denial. According to them, they were not present at the scene of occurrence at all. They took up a plea that political animosity is prompting the witnesses to make false allegations against them. The deceased and the witnesses belong to the C.P.M whereas the accused owe allegiance to the B.J.P, it was suggested. 17. We shall now proceed to consider the identical contentions raised by the appellants in both cases against the prosecution version. It is contended that all the four eye Crl.A.Nos.493/06 & 925/07 14 witnesses are untrustworthy witnesses and their evidence must be discarded. It is further submitted that PW6 who gave evidence that he saw accused 1 to 3 returning from the scene of the crime should also be disbelieved. The evidence of the investigating officer PW16 about the recovery of MO1 on the basis of the confession statement of the 1st accused must also be discarded, it is argued. As identical contentions are raised, we shall now proceed to consider these challenges against the prosecution version. 18. Not a semblance of doubt is left in the mind of the court that the deceased suffered injuries at or about the scene of the crime. Satisfactory, convincing and unimpeachable evidence is available to show that the deceased had sustained the injuries at about the scene of the crime and at about the time alleged by the prosecution. On this aspect, there is not a semblance of doubt. In the absence of serious dispute, we are not referring to the evidence and materials on this aspect in detail. How the deceased suffered injuries - whether the injuries were suffered in the manner alleged by the prosecution, is the only question that falls for consideration. Crl.A.Nos.493/06 & 925/07 15 19. All guns are trained by counsel for both appellants against the oral evidence of PW1. That PW1 was present at the scene of occurrence is convincingly indicated by Ext.P1 F.I.S lodged by him at 6.10 p.m on 22/09/2000 before the police officials. Both counsel argue that this cannot be believed. According to them, PW1 was not at all available at the scene and he has been pressed into service later on to make false allegations against accused 1 to 3. This contention does not, in any manner, impress us. We first of all note that the version of PW1 is supported convincingly by the prompt and early F.I.S Ext.P1 lodged by him before the police on the basis of which F.I.R in this crime was registered. We further note that there is no appreciable delay in the F.I.R reaching the court, the same having reached the court at 3.30 p.m on the next day. We do further note that all the three eye witnesses examined have subscribed to the version that PW1 was available at the scene of the crime. The other two workers, who were along with the deceased that is Chandran and Dileep Kumar, belong to the same stock. They were working along with the deceased and PW1 as unloading workers. It is crucial to note that John and Crl.A.Nos.493/06 & 925/07 16 Kamalam are neighbouring witnesses and they also subscribe to the version of PW1 Sunilkumar as also Chandran and Dileepkumar. The presence of PW1 at the scene of the crime is thus convincingly indicated from these circumstances. Chandran examined as PW2 claims to be an injured; but he had suffered no injuries. It is not as though the said Chandran claimed that he had suffered any external injury. The allegation of the prosecution is only under Section 323 I.P.C. He had not gone to any doctor. In these circumstances, the mere fact that Chandran did not suffer injuries is not, according to us, a satisfactory reason to doubt the version of the said Chandran. So is the evidence of Dileepkumar, the witness examined as PW3 in the trial against the 1st accused. Seven persons (including the deceased Anil Kumar, PW1 Sunilkumar, Chandran examined as PW2 in the trial against accused 2 and 3 and Dileepkumar examined as PW3 in the trial against the 1st accused) were engaged in unloading work. Their presence is supported clinchingly by the oral evidence of Kamalam and John, who had their places of work near the scene of the crime. Crl.A.Nos.493/06 & 925/07 17 20. Before coming to the alleged incongruities between the evidence of these four eye witnesses, we must now look at the evidence of the presence of accused 1 to 3. All the four eye witnesses stated clearly that accused 1 to 3 were present at the scene of the crime. In Ext.P1 their presence is stated without any ambiguity or doubt. Sunildas, who was examined as PW6 in both cases, has tendered unimpeachable evidence that he had seen all the three accused persons going away from the scene of the crime after the crime. Not a semblance of doubt is aroused in our mind about the presence of the four eye witnesses examined in both cases as also the presence of accused 1 to 3 at or near the scene of the crime at the time of commission of the crime. 21. We do, in these circumstances, come to the conclusion that the evidence of the four eye witnesses has a ring of truth around them and we are of the opinion that courts will not be justified in approaching such testimony of eye witnesses with any amount of unjustified doubt, suspicion or distrust. 22. Attempts have been made to pick holes in the version of the witnesses to suggest that they have no consistent case. Crl.A.Nos.493/06 & 925/07 18 We have analysed the evidence of the said four witnesses in both cases. Sequence of events appears to be very clear and convincing. All the seven workers including the deceased were engaged in unloading the metal (granite marbles) that was brought in the lorry. This was being done inside a compound by the side of the road. Accused 1 to 3 came to the scene and called Chandran/PW2 in S.C.No.310/2002. Chandran went towards them. There was a wordy altercation between the said Chandran and the 1st accused. Chandran was assaulted. Seeing this deceased Anilkumar went to the scene and attempted to separate the 1st accused and the said Chandran. He did succeed in that attempt. But, at that time, the 1st accused took out a knife and the second accused held the deceased from behind. This allegedly facilitated planting of the stab with MO1 by the 1st accused on the deceased. Thereafter, the 2nd accused allegedly kicked the said Chandran and the 3rd accused shouted 'Who else is there now? Thereafter all three went back from the scene of the crime together. 23. We have meticulously analysed the oral evidence of all these four eye witnesses. We are unable to find any material Crl.A.Nos.493/06 & 925/07 19 incongruity or inconsistency inter se between the testimony of the eye witnesses or viz a viz their earlier statements made to the police in the course of investigation. Laborious attempts have been made by the learned counsel for the appellants to make mountains out of mole hills. When four different persons perceive an incident if they are truthful and not meticulously tutored, it is only invariable that there would be some differences in the perceptions and narrations of the individuals concerned. Except such natural, probable and innocuous differences, we find absolutely no inconsistency or incongruity which can justify an approach with distrust to the oral evidence of the four eye witnesses concerned. We have already noted that the presence of these eye witnesses at the