Case: P. K. Narayanan Vs. State of Kerala

have been sustained before the fall. It is on the basis of this evidence that the prosecution wanted to make out a case that the deceased was first beaten up and then was thrown. As mentioned above, the CBI also conducted a dummy test to show that the deceased must have been thrown by somebody from the terrace. We have perused the evidence in this regard and from that atone it cannot be concluded that the death was homicidal. As a matter of fact, the medical experts PWs 53 to 55 admitted in their cross-examinations that all the injuries found on the deceased and noted in the post-mortem certificate can as well be sustained in an assault by several persons with different weapons. In view of such halting type of medical evidence, we do not think that the only inference can be that the death was homicidal 9. It is pertinent to note that the accused were also charged under Section 120-B read with Section 201 alleging that in pursuance of the criminal conspiracy the accused tampered with the evidence of murder after the occurrence to screen the offenders and that a false information was given to the police. Both the courts below have held that there is no material whatsoever to establish the same. It can thus been that there is no material whatsoever to show that the accused who are alleged to have conspired did anything to cover up the crime. Therefore the only evidence relied upon by the prosecution in proof of the conspiracy is with reference to the few above-mentioned circumstances prior to the murder and the only other subsequent circumstance relied upon by the prosecution is the conduct of A-1 in not consoling the father of the deceased. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence 10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation11. After a careful examination of the entire material on record, we are of the view that the prosecution has completely failed to establish the guilt of A-1 and A-2. Accordingly we set aside the convictions and sentences passed against A-1 and A-2 and allow Criminal Appeal Nos. 315 and 316 of 1990 SLP (Crl.) Nos. 3329-31 of 1994(Arising out of Crl. M. Ps. Nos. 4831-33 of 1990) 12. These Crl. MPs have been filed by Shri S. K. Viswambharan, Superintendent of Police, Pathanamthitta District, Kerala who figured as PW 59 in this case seeking permission to file the special leave petition with a prayer that certain adverse remarks made by the High Court against him may be expunged and for condonation of delay and for stay. By our order dated 28-9-94 we condoned the delay and granted the permission to file the special leave petition 13. The petitioner at the relevant time was DSP and the investigating team consisted of himself, another DSP, 2 SPs, DIG and the IG. This team after due investigation came to the conclusion that the death of the deceased was due to suicide. Subsequently by an order of the Supreme Court reinvestigation was conducted by the CBI and the charge-sheet was laid against the four accused. As mentioned above three out of them were convicted by the Sessions Court and the High Court while dismissing the appeal of two accused passed certain adverse remarks and strictures against the petitioner. The High Court observed that the conduct of PW 59 (the petitioner) in reporting the case as of suicide without contacting PWs 54 and 55 justifies drawing an inference that powerful influences were at work to deflect and distort the investigation. There are some more observations in this context against the petitioner. It can therefore be seen that the High Court entertained doubts regarding the honesty of the petitioners participation in the investigation and as to how he came to the conclusion that it was a case of suicide which largely depends on the appreciation of the medical evidence. We have already referred to the relevant evidence on record in this context including the medical evidence. It has also come on record that the deceased was treated by a Psychiatrist and certain drugs also were purchased by the deceased and therefore the possibility of the investigating officer having an honest impression that the deceased might have committed suicide, cannot be ruled out. As a matter of fact the trial court after a consideration of the relevant evidence also made a similar observation. We have also noted that the medical evidence is not conclusive.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The High Court, as a matter of fact, acquittedIt is interesting to note at this stage that the trial court took upon the exercise of eliminating one or other inmates who could have committed the crime and by strange process of reasoning fixed the liability on3. Both the courts below have referred to the evidence of PWs 4, 5, 7, 8, 11, 12, 13, 15 and 17. Out of them PW 17 turned hostile. PW 13 simply stated that as the doors were closed they could not go out and that as usual, he and some other employees were sleeping in the dining hall. PW 3 stated that before the incident he saw the deceased in the company ofat the time of his checking out. His evidence in any manner does not incriminateThe categorical finding of the trial court is that the deceased was last seen in the company ofand the High Court, however, took the view that the case againstis not at all proved. The main evidence relied upon by the courts below to connectis that of PW 4. PW 4 deposed that he heard something heavy falling from the terrace of the tourist home. He is employed in another hotel on the southern side of the tourist home and in between there is a piece of vacant land. According to him he used to sleep on the terrace and after hearing the sound he saw a person running away from the tourist home direction and the said person jumped out of the compound wall and ran towards the north. PW 4 immediately got down from the terrace and called his friend Sudhakaran and told him what he had heard. Then they went to the courtyard and recognised the deceased who was lying injured. It is very important to note that PW 4 in the initial stages did not mention that the person whom he saw running away wasIt is only at a highly belated stage when CBI came into picture that he appears to have told them that he sawrunning away. Even before the CBI admittedly he did not disclose everything but when he was again questioned, according to him, he told the CBI that he sawrunning away. We fail to appreciate as to how reliance can be placed on such unsatisfactory evidence for convictingunder Section 302 read with SectionIPC. This witness wasat length. There are quite a few other infirmities in his evidence but it may not be necessary for us to refer to them. We have perused the evidence of other witnesses. They do not in any manner improve the prosecution case. There is no other evidence worth mentioning which connectswith the crime except mere suspicion on the basis that he was a driver and trusted bodyguard ofNo doubt in the case of conspiracy there cannot be direct evidence but the view taken by the High Court that the motive, opportunity and possible complicity in the offence are inferential from the available facts and circumstances and on that basis an offence of conspiracy would be made out, is not justified on the basis of the evidence on the record. It may not be necessary for us to discuss that part of the evidence dealing with motive Assuming thatwas apprehensive that the deceased might disclose his trade secrets, that by itself cannot prove the conspiracy. The High Court, however, pointed out that the conduct of the parties would be a relevant circumstance to make out an offence of conspiracy. The conduct ofreferred to in this context is that he went to the tourist home at 9 a. m. and that he did not go or meet or console PW 1 on that day and that he rewardedsufficiently to purchase ornaments and make investments. According to the High Court, these circumstances which indicate thatwas a close associate ofcoupled with the circumstance thatwas found running away, would be sufficient to make out a case thatconspired to eliminate the deceased. Having give our anxious considerations, we cannot agree with the view taken by the High Court. On the other hand, the evidence relied upon by the prosecution to prove the conspiracy is wholly insufficient. After having perused the judgments of both the courts below, we find that the convictions are based more on suspicion particularly on the ground thathad motive to eliminate thehave perused the evidence in this regard and from that atone it cannot be concluded that the death was homicidal. As a matter of fact, the medical experts PWs 53 to 55 admitted in theirthat all the injuries found on the deceased and noted in thecertificate can as well be sustained in an assault by several persons with different weapons. In view of such halting type of medical evidence, we do not think that the only inference can be that the death wascan thus been that there is no material whatsoever to show that the accused who are alleged to have conspired did anything to cover up the crime. Therefore the only evidence relied upon by the prosecution in proof of the conspiracy is with reference to the fewcircumstances prior to the murder and the only other subsequent circumstance relied upon by the prosecution is the conduct ofin not consoling the father of the deceased. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogentif some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation11. After a careful examination of the entire material on record, we are of the view that the prosecution has completely failed to establish the guilt ofhe High Court observed that the conduct of PW 59 (the petitioner) in reporting the case as of suicide without contacting PWs 54 and 55 justifies drawing an inference that powerful influences were at work to deflect and distort the investigation. There are some more observations in this context against the petitioner. It can therefore be seen that the High Court entertained doubts regarding the honesty of the petitioners participation in the investigation and as to how he came to the conclusion that it was a case of suicide which largely depends on the appreciation of the medical evidence. We have already referred to the relevant evidence on record in this context including the medical evidence. It has also come on record that the deceased was treated by a Psychiatrist and certain drugs also were purchased by the deceased and therefore the possibility of the investigating officer having an honest impression that the deceased might have committed suicide, cannot be ruled out. As a matter of fact the trial court after a consideration of the relevant evidence also made a similar observation. We have also noted that the medical evidence is not conclusive.