Sherimon vs State Of Kerala

1. The appellant (original accused 4) along with three others (original accused 1, 2 & 3) was tried by the Additional Sessions Judge, Kottayam in Sessions Case No. 256 of 2000 for offences punishable under Sections 302, 392, 120 (B) read with Section 34 of the Indian Penal Code (for short, "the IPC"). Learned Sessions Judge convicted accused 1 under Section 302 of the IPC and sentenced him to life imprisonment. Learned Sessions Judge convicted the appellant and accused 2 and 3 under Section 324 read with Section 120B of the IPC and sentenced them to undergo 2 rigorous imprisonment for 3 years each. They were acquitted of offences punishable under Sections 392 and 302 of the IPC. The appellant was sentenced to pay a fine of Rs.1,50,000/- which was directed to be distributed as compensation amongst the heirs of deceased Binoy. The appeals carried from the said orders by the appellant and the other accused were dismissed by the Kerala High Court by its judgment and order dated 3.3.2005. In this appeal, by special leave, the appellant has challenged the said judgment and order to the extent it confirms the conviction and sentence awarded to him.

2. It is necessary to give a gist of the prosecution story.

The appellant-Sherimon (A4) was the Managing Partner of a financial establishment called `City Auto Finance', Moovattupuzha which was engaged in the business of advancing money for purchase of automobiles under Hire Purchase arrangement. On 7.7.1997 one Shaji (PW-4) entered into a hire purchase agreement with the said 3 establishment for purchase of an auto rickshaw bearing no.

KL-5/F-5245 (MO6) (for convenience, "the said auto rickshaw") and obtained loan amount of Rs.40,000/- which was to be paid in monthly installments. PW-4 committed default in repayment of the loan which prompted the appellant to re-possess the said auto rickshaw. On 25.3.1999 at about 12 noon the appellant called Shiju @ Kunjumon (A-1), Salim Joseph (A-2) and Ratheesh @ Kannan (A-3) in the office of City Auto Finance, Moovattupuzha and hatched a criminal conspiracy to seize the said auto rickshaw from the possession of PW-4 by hook or by crook. A1 to A3 were engaged in the profession of vehicle seizure. In pursuance of the conspiracy entered into between A1 to A4, on 31.3.1999 at about 08.15 p.m., A1 approached the deceased, who was driving the said auto rickshaw at that time in the area of Government Hospital, Mudakkayom to hire the same for a trip to Anakuzhy for which the deceased agreed. Manoj (PW-1) a friend of the deceased was present. A1 got into the said auto rickshaw 4 along with A2 and A3. Thereafter, the deceased sharing the driver's seat along with Manoj (PW-1) drove the said auto rickshaw towards Anakuzhy through the Erattupetta-

Pathampuzha public road. When they reached the area of Poonjar-Thekkekara Panchayat the accused asked the deceased to stop the said auto rickshaw. As directed, the deceased stopped the said auto rickshaw. A3 caught hold of the collar of PW-1 who was sitting along with the deceased in the driver's seat and pulled him out. Meanwhile, A1 with intent to murder the deceased caught hold of him by his neck and with a knife stabbed him on the left side of his chest and his right armpit. Simultaneously, A2 with a knife stabbed the deceased repeatedly on the outer aspect of his right arm and on the inner aspect of his inner forearm and below right buttocks and pushed him out of the said auto rickshaw. Resultantly, the deceased fell on the road.

Thereafter, the accused-assailants fled away from the scene of occurrence. The police reached at the spot upon information given by PW-1 on phone and removed the 5 deceased to the Pala Taluk Hospital where he was declared dead.

On completion of investigation, charge-sheet was filed against the appellant and A1, A2 and A3. The prosecution, in support of its case, examined as many as 13 witnesses (PW-

Therefore, there is nothing on record to establish meeting of minds between the appellant and the other accused.

11. In the result, the impugned judgment and order of the Kerala High Court confirming the conviction and sentence awarded to the appellant under Section 324 read with 13 Section 120B of the IPC by the trial court will have to be, therefore, set aside and is accordingly set aside. However, we make it clear that the order passed by the trial court directing the appellant to pay a fine of Rs.1,50,000/- is not set aside, in view of the statement made by his counsel, which we have quoted hereinabove. The fine amount, if not already paid, should be deposited in the trial court within a period of three months so that the trial court can take necessary action.

12. The appeal is allowed in the aforesaid terms. The appellant is on bail, his bail bond is discharged.