Partly allowed

Unnikrishnan @ Sibuttan v. State of Kerala

Kerala HC17 Aug 2018CRL.A/1041/2008

Case brief

AI extract

What is this about?

Appeal against convictions arising from a road accident found to be a deliberate collision staged to murder a business rival. The court upheld the convictions of the driver and the mastermind, acquitted several accused for want of proof of conspiracy or harbouring, and converted the death sentence to life imprisonment without remission for 25 years.

What did the court decide?

Death sentence of accused 1 set aside and modified to life imprisonment without remission for 25 years; convictions of accused 2, 3 and 6 confirmed; accused 4, 5, 7, 8 and 12 acquitted; State appeal p

Unnikrishnan @ Sibuttan Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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FRIDAY ,THE 17TH DAY OF AUGUST 2018 / 26TH SRAVANA, 1940

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CRL.A.No. 1041 of 2008

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AGAINST THE JUDGMENT IN SC 1/2006 of SESSIONS COURT, ALAPPUZHA DATED 17-05-2008

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APPELLANTS/ACCUSED 5 AND 12:

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1 UNNIKRISHNAN @ SIBUTTAN, S/O VENU, KADATHUKADAVIL VEEDU, NORTH OF THARUVANAKUNNU TEMPLE, WARD NO. VIII, CHERAI DESOM, PALLIPURAM PANCHAYAT, ERNAKULAM.

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2 SIBIN RAJ @ OOTTY KANNAN SO SIVANANDAN CHERAI CHEERANGATTU VEEDU, WARD NO IX,, PALLIPPURAM PANCHAYAT, CHERAI, ERNAKULAM.

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BY ADV. SRI.K.K.DHEERENDRAKRISHNAN

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RESPONDENT/COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM (CRIME NO. 227/2006, OF THE MARARIKULAM POLICE STATION)

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SPECIAL PUBLIC PROSECUTOR SMT. S AMBIKA DEVI (ATTROCITIES AGAINST WOMEN AND CHILDREN)

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OTHER PRESENT:

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 7.06.2018, ALONG WITH DSR NO.8/09 AND CONNECTED CASES, THE COURT ON 17/8/2018 DELIVERED THE FOLLOWING:

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C.R.

JUDGEMENT

Shaffique, J.

Crl.Appeal No. 96/12 has been filed by the State seeking enhancement of sentence of accused Nos.2 to 4, 6 and 7. All other appeals are filed by accused 1 to 8 and 12. DSR No.8/2009 relates to the death sentence imposed on the first accused.

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An accident occurred on 20.7.2005 at 1.45 p.m in the National Highway near Kanichukulangara Junction, Alappuzha District. Two vehicles were involved in the accident- a lorry bearing Regn.No.KRO 1760 and a Tata Safari car bearing No.KL-13-E/9180. According to PW1, the informant, the lorry was proceeding from north to south and the Tata Safari car from the opposite direction. Persons named Ramesh, Latha, Vijayadharan and Kuttikrishnan were travelling in the Tata Safari car, which was driven by Shamsudeen. The accident occurred due to the rash and negligent act on the part of the driver of the lorry. The injured Shamsudeen, Ramesh and Latha died on account of the injuries sustained by them and Vijayadharan (PW8) and Kuttikrishnan (PW6) were seriously injured. Crime No.227/2005 of Mararikkulam Police Station was initially registered on 20/7/2005 at 8.00 p.m alleging offences under Sections 279, 338 and 304 of Indian Penal Code. Ext.P129 is the FIR. In the FI statement (Ext.P1), PW1 stated that he is the brother-in-law of

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Shamsudeen who was working as a driver of Everest Chits at Cherai. The Managing Director, Sri.Ramesh's son's birthday was on the next day. Ramesh had gone to Karunagapally to bring his sister for which he had taken his Tata Safari car and it is while coming back in the said vehicle towards Cherai that the accident occurred.

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While the inquest of three of the deceased were being prepared, the members of the Panchayat doubted that it was not an accident, but the accident was deliberately created to do away Ramesh taking into account his growth in business.

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The Superintendent of Police, Alappuzha issued order dated 21/7/2005 (Ext.P214) referring to a petition from Deepuraj, son of Velayudhan wherein he alleged conspiracy behind the accidental death of Ramesh and two others within the jurisdiction of Mararikkulam police station. Therefore, it was decided to have the case investigated by a senior and experienced police officer. Accordingly, the investigation of the case was transferred to the Deputy Superintendent of Police, Crime Detachment, Alappuzha who was asked to take up the investigation of the case forthwith and to report compliance. Sri.P.A.Johnson (PW118), Deputy Police Superintendent, Crime Detachment, Alappuzha took up the investigation and filed a report dated 21/7/2005 (Ext.P215) to the Judicial Magistrate of First Class, Alappuzha. PW118 constituted a Special Investigation Team and based on the investigation conducted by them, a final report was filed before the Court implicating 13 persons as accused.

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Accused 1 to 10 were charged with offences under Sections 109, 120B, 212, 307 and 302 r/w S.34 of I.P.C. Accused 11 to 13 were charged for offences u/s 212 r/w S.34 I.P.C. 13^th accused was absconding.

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Before the trial court, prosecution relied upon the oral testimony of PW1 to PW118 and defence relied upon the deposition of DW1 to DW6. Prosecution produced Exts..P1 to P304 documents and the defence relied on Exts.D1 to D29. MO1 to MO27 were the material objects produced and identified.

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The trial Court acquitted accused 9, 10 and 11. Accused 5, 8 and 12 were found guilty u/s 212 of I.P.C. A5 was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 2,000/-, A8 was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 5,000/-, A12 was convicted and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of 5,000/-, A1 to A4, A6 and A7 were found guilty u/s 302 of I.P.C, A1 was imposed with death penalty and accused 2 to 4 were sentenced to undergo life imprisonment and to pay a fine of 10,000/- each, in default of which to undergo imprisonment for one year. A6 and A7 were sentenced to undergo imprisonment for life and to pay a fine of `5 lakhs each in default of which to undergo imprisonment for three years. A1 to A4, A6 and A7 were also sentenced to undergo imprisonment for 7 years, 5 years and 7 years respectively for offences under Sections 120B, 109 and 307 I.P.C. with separate fines and default sentence.

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This case was originally heard by a Division Bench of this Court and remitted back to the Trial Court to enable the prosecution to prove the call details produced in the case as it lacked certification as provided u/s 65B of the Evidence Act. After remittance, though the witnesses were summoned to provide necessary certification, they could not provide such certification since the call details were not available in the data base of the respective companies, as it is not stored for more than one year.

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Prosecution case

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8.1. Accused 6 and 7 are the Managing Directors of a chitty company by name Southern Himalaya Chits (P) Limited having its head office at Cherai in Ernakulam District. Ramesh, who was working as General Manager of the said company, resigned from the said post in January, 2004. Ramesh thereafter started a new chitty business in the name and style Everest Chits (P) Ltd., at a place known as Vedimara. His business flourished and he had about 7 branches which were all situated near the branches of Southern Himalaya Chits. On account of the aforesaid facts, there was enmity between both the parties which resulted in several cases. According to the prosecution, accused 6 and 7 by themselves as well as through their staff had threatened Ramesh and his employees on several occassions. Ultimately, accused 6 and 7 hatched a conspiracy with accused 3 and 4 to commit murder of Ramesh. Pursuant to such a conspiracy, third accused arranged accused 1 and 2

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who were goondas and hired assassins to commit the murder under the guise of a road accident.

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8.2. The 6^th accused had paid an amount of `50,000/- to the third accused who handed over the same to the first accused and with the said amount, accused Nos. 1 and 2 purchased lorry bearing Regn.No.KRO 1760. A sale agreement was prepared in the name of the 2^nd accused on 13/7/2005. With the funds provided by accused 6 and 7, 3^rd accused purchased a Qualis car bearing Regn.No.KL-07/AB 6339 on 16/7/2005. Accused 3 and 4 who were employees of accused 6 and 7 were watching the movements of Ramesh by following him in the newly purchased Qualis car. On 19/7/2005, Ramesh went to Ernakulam to become an accomplice in SC No. 686/2004 which was pending before the Additional Fast Track Court-II, Ernakulam. In the said case, accused 6 and 7 were accused Nos.1 and 2 and Ramesh was the third accused.

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8.3. On 20/7/2005, at about 9.30 am, Ramesh proceeded to Karunagapally along with PW6 Kuttikrishnan in his Tata Safari car bearing Regn.No.KL-13/E 9180 driven by Shamsudeen (another deceased) to bring his sister Latha to attend the first birthday celebration of his child on 21/7/2005. While coming back in the Tata Safari car, Ramesh was accompanied by his sister Latha, her father-in-law PW8, Vijayadharan and PW6 Kuttikrishnan along with Shamsudeen the driver. According to the prosecution, accused 3 and 4 were giving information over mobile phone to the first accused about the whereabouts of Ramesh by travelling in the

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Qualis car.

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8.4. Accused 1 and 2 were driving the lorry from north to south as per the instructions given to them by accused 3 and 4. They started from Ernakulam and was proceeding to Alappuzha. When the Tata Safari car in which Ramesh was travelling reached a place near Kanichukulangara, the lorry driven by the first accused came from the opposite direction and suddenly turned to the right side and ramped into the Tata Safari car causing a head on collision. In the process, Ramesh, Latha and Shamsudeen died and PW6 and PW8 suffered injuries. After the incident, accused 1 and 2 came out of the lorry and after a short while, they left the place by getting into a tanker lorry which was proceeding towards south.

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Learned senior counsel Sri.B.Raman Pillai appearing on behalf of accused 1 and 2 argued that a normal road accident has now been depicted as an accident to commit murder of Ramesh. It is argued that the prosecution has failed to prove any of the allegations and they have virtually cooked up a story and planted witnesses to give testimony in support of the prosecution case. First of all, there is no evidence to prove that accused 3 to 7 or any of them had paid any money to the 1^st or 2^nd accused to purchase a lorry and they had acquired the lorry. Further, there is no evidence to prove that A1 was driving the lorry and A2 was riding along with him at the time of accident as alleged by the prosecution. The evidence that had been adduced by the prosecution

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regarding the involvement of accused 1 and 2 is the oral testimony of PW2, PW6, PW7 and PW8. It is argued that, none of these witnesses have seen the accused nor did they have any prior acquaintance. PW2's version that he had seen the accused coming out of the lorry cannot be believed. Same is the situation regarding the evidence of PW7. He was sitting in his shop about 100 metres away from the scene of occurrence and he reaches the site only after hearing a sound. Both these witnesses are stated to have seen accused 1 and 2 only for a few seconds. They say that accused 1 and 2 thereafter waved a tanker to stop, climbed into the same and left the scene. PW6 and PW8 also cannot be believed. They were persons sitting inside the Tata Safari vehicle and therefore they could not have seen the accused at all who is alleged to have been in the lorry. They could never anticipate that the lorry will hit them to notice the driver. PW6 is alleged to be sitting on the front left side seat of the Tata Safari car whereas PW8 was sitting behind, on the rear seat. They could never have seen the accused at all. The presence of PW6 in the vehicle itself is doubtful. He had deposed to the Doctor who had examined him that he was travelling in a jeep. He did not suffer any major injuries. He was seen by the Doctor only by 3.20 pm on the said day and thereafter his presence was not seen at all. It is further argued that even assuming for the sake of argument that PW2 and PW7 had seen the driver and the person who accompanied him, unless a Test Identification Parade (TIP) is conducted, it is not possible to imply that

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they were involved in the accident. It is submitted that PW3 is also a planted witness who says that he had seen the accident and the accident happened since the lorry deliberately turned towards right and hit on the Tata Safari. However, he turned hostile as he did not identify accused 1 and 2 before court. It is submitted that without conducting a TIP, police had shown the accused to the witnesses who had identified them and therefore the identity of accused itself is not proved by the prosecution. It is further contended that the police had come to the site immediately after the accident. PW4 is the driver of the ambulance who had come to the scene immediately after the accident and four of the injured were taken in his vehicle. PW5 is a Police Constable who arrived at the scene immediately thereafter and Shamsudeen the driver was taken in the police vehicle to Medical College Hospital. The evidence of PW94, Sub Inspector of Police, clearly indicates that he was in the scene of occurrence until late in the evening and the police had not obtained the statement of any of the witnesses in the locality either PW2, PW3 or PW7 to indicate that the accident was a created one. Yet another argument raised was that certain samples were collected by the Scientific Assistant as evident from Ext.P79 on 21/7/2005 itself. But, there is no evidence to prove that those samples were sent for analysis and report was called for in that regard. PW91 is the Doctor who had issued Exts.P124 and 125 wound certificates on 29.7.2005, in respect of accused 1 and 2, after their arrest. In the said wound certificates, they had informed the Doctor

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that the injuries noticed by the Doctor happened on account of the lorry deliberately being hit on the Tata Safari car. According to the defence, the said statement recorded by the Doctor, amounts to confession, while in custody of the police and is not admissible in evidence. Further, the document had been concocted by the police by influencing PW91, the Doctor. Learned counsel for the accused 1 and 2 further argued that though it is stated that first accused was arrested on 29/7/2005 and they were produced before Court on 30/7/2005 at 3.30 p.m., according to accused 1 and 2, they were taken into custody much earlier which fact is proved by the fact that mother of the first accused had given a complaint stating that first accused is in the illegal custody of the police. It is also contended that PW15 deposed that the accused were seen in the police station on the 5^th day of accident. Yet another argument is that the recovery of mobile phone from the 1^st accused is not proved. PW63 and PW69, who were examined to prove that the phone was belonging to A1 and it was recovered from him after arrest, turned hostile.

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It is the common case of the counsel appearing for all the accused, that the CDR's cannot be taken as evidence in the case for want of certification, under Section 65B of the Evidence Act. Reliance is placed on the judgment in Anvar v. Basheer [2014 (4) KLT 104 (SC)].

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ACCIDENT

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First of all, it has to be considered whether the accident is a

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simple accident or, is it an accident created for the purpose of

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committing murder. Prosecution relies upon the evidence of PW2, PW3, PW6, PW8, PW98, PW106 and PW107 to prove that the incident was not a normal accident whereas it was an accident created for the purpose of endangering the life of Ramesh travelling in the Tata Safari car and in the process, three persons including Ramesh died and two of them were seriously injured. PW2 in his evidence has deposed that he is working as a Vehicle Supervisor in a factory at Maithara. By about 1.45 p.m, when he was coming back from his house after having noon meals in his motorbike proceeding towards north through the western side of the road, he saw a Tata Safari car overtaking him and a lorry hitting on the car. After the lorry had hit on the car, the axle of the lorry broke and he saw the wheel of the lorry detaching from the vehicle and the Tata Safari car got overturned. He along with a person named Hari and other persons ran to the scene. He deposed that the road was lying straight in south-north direction. There was no other vehicles on the road. The Tata Safari Car was proceeding through the western side of the road. Lorry came from north and without any necessity, it turned towards west and hit on the Tata Safari car.

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PW3, Haridas is a person working as peon in Silk Employees Cooperative Society. He had seen the incident which according to him was on 20/7/2005 at about 1.45 p.m. On that day, in order to take noon meals, he was proceeding towards Kargil hotel to collect water. He was standing on the western side of the road to cross the road. He saw a Tata

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Safari car coming from the southern side and proceeded towards north passing him. Immediately, a lorry which came from the northern side took a sudden turn and hit on the Safari car. The Safari car overturned. Lorry was lying there itself after the incident. PW3 was declared hostile since he did not identify A1 and A2.

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PW6, Kuttikrishnan deposed that on 20/7/2005 he was travelling along with Ramesh in the Tata Safari car. He was sitting in the front seat near the driver. Vehicle was travelling at the speed of 40 to 50 kms. When they reached about 300 metres north of Kanichukulangara junction, he saw a lorry coming in the opposite direction at a great speed. When it reached near their vehicle, the lorry suddenly took a turn towards right and hit on their vehicle with terrible force. On account of the force at which lorry hit the Tata Safari, vehicle overturned.

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PW8, Vijayadharan was also travelling in the vehicle on 20/7/2005. He also deposed that when they proceeded about 200 metres from Kanichukulangara junction, they saw a lorry coming in high speed from the opposite direction and it suddenly took a right turn and hit on their vehicle forcefully and thereafter he became unconscious.

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Learned counsel for accused 1 and 2 mainly contended that PW2 was a planted witness. In cross examination the witness stated that he along with the other persons had taken the injured to the ambulance and there was blood in his dress and that he had deposed to the police regarding the incident. Though the police had come to the site

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immediately after the incident, statement of PW2 was not taken. But during cross examination PW2 has clearly stated that after the injured were taken to the hospital, he had washed off the blood on his dress from the nearby house and proceeded to his work place and he came back from the factory only after 6 p.m. He also stated that police who had come to the scene has taken his statement but he does not remember whether it is a Sub Inspector or other officer. However, he states that he had given statement to the DYSP of Police. PW3's evidence was attacked by marking a contradiction Ext.D1. In Ext.D1, he has stated that he had seen the incident when he was walking through the road for taking water when he was coming to the National Highway from his office. Apparently it is not a material contradiction. In cross examination he also reiterated the fact that normally the lorry could not have hit the Tata Safari car. The lorry had hit the Tata Safari car since the driver had turned the vehicle towards the Tata Safari car and from the place where he was standing, the incident happened about 100 metres on the north western side.

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The evidence of PW6 is attacked mainly on the ground that he was not even in the vehicle at the time of incident. He had deposed to the Doctor who had seen him at 3.00 pm that he suffered injuries while he was travelling in a “jeep”. Learned counsel places reliance upon Ext.P123 wound certificate issued from Medical College Hospital, Alappuzha. In Ext.P123, the history and alleged cause of injury is

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recorded as “ജജീപപ്പിൽ സഞ്ചരപ്പികക്കും പപപോൾ പലപോറപ്പി ഇടപ്പിച്ചതപ്പിൽ വച at 13.20 p.m on 20/7/2005 കണപ്പിചകുളങ്ങര". In cross examination the suggestion is that he

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was not even travelling in the Tata Safari car whereas he was escorting the Tata Safari car and that he has seen the Doctor only at 3.20 p.m and he had gone to the hospital only for being a witness in the case, which he denied.

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PW8 is also cross examined by contending that he could not have seen the incident and he had not given any statement to the Doctor stating that it was a deliberate accident.

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Even though these witnesses were thoroughly cross examined, nothing has been brought out to discredit them. The accident occurred in broad day light and all of them including the injured who were travelling in the Tata Safari clearly states that the lorry had suddenly taken a right turn towards the west and hit on the Tata Safari car. There is no reason for us to disbelieve their version.

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The prosecution has also adduced expert evidence with reference to the accident. Ext.P18 is the fitness certificate of the lorry issued by the Assistant Motor Vehicle Inspector which is proved by PW15. The Assistant Motor Vehicle Inspector, PW98, who came to the site immediately after the accident, had taken note of the damage caused to both the vehicles. The report with reference to the Tata Safari car is Ext.P140 and the report with reference to the lorry is Ext.P141. He also

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opined that there was no mechanical defect to both the vehicles. But it is evident from the photographs produced in the case, Ext.P179 series, that the Tata Safari car was completely damaged. As far as the lorry is concerned, it suffered damages on the right side of the front wheel which broke out from the vehicle and the axle was also broken. The scene mahazar would indicate that the lorry was lying on the western end of the road beyond the road margin. The investigating officer further decided to have an expert opinion about the nature of accident. The tyre of the front right wheel of the lorry had a puncture (hole). A committee was formed consisting of three experts. Two such experts were examined as PW106 and PW107. Ext.P177 is the report. They opined that the front wheel tyre and tube of the lorry were damaged after the lorry hitting the Tata Safari car. They have also identified the tyre, tube, wheel, disc and the axle of the lorry as MO12 to MO15. During cross examination, the defence tried to build up a case stating that the material objects which were examined by them were shown by the Deputy Superintendent as that of the lorry. Suggestion was that the tube had bursted and the U clamp on two sides of the axle had broken in which event the control of the vehicle will be lost. According to the experts, the hole on the tyre was caused at the time when the lorry hit the Tata Safari car and that was the reason for the tube to have torn. There are two U clamps and their opinion is that both the U clamps will not be lost during run and if it should happen, it can only be after an impact. PW107 also opined that

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the accident similar to the one can happen only if the lorry had come in a great speed and hit on the Tata Safari car. From the nature of evidence adduced by PW106 and PW107 based on Ext.P177 report, it is rather clear that the damage to the lorry had occurred after the accident and the possibility of the lorry tyre getting bursted and an accident occurring or the accident happening due to some mechanical defect of the lorry has to be ruled out.

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Learned counsel for accused 1 and 2 points out that there were several marks on the road for which a scene mahazar has been prepared. Ext.P79 is the mahazar. He points out that in the scene mahazar, item No.1 is marked as a place where there was brake application and rupture of tyre mark. The tyre mark is seen 4 metres on the south western side which is marked as item No.2. From the said position, rupture mark was seen 5.40 metres on the southern side. The said portion is marked as item No.3. From the said position, 3.36 metres south west, there is a rupture mark which is marked as item No.4. From the said position, 5 metre towards south west, there is a mark of tyre, metal and tar which portion is marked as item No.5. From the said position, 4.10 metres towards south, there is a tyre mark which is marked as item No.6. From the said position, 6.10 metres south west is the scene of occurrence and the rupture of tyre mark seen in the said area is marked as item No.7. From the said position, 7.30 metres south west, the tar portion is ruptured which is marked as item No.8. From the said area, there is a tyre

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mark 5.40 metres on the south west which is marked as item No.9. From the said area 5.60 metres south west also, tar is seen ruptured which is marked as item No.10. Portions of the tyre marks, tar, metal etc had also been taken by the Scientific Assistant Dr.R.Vinod Kumar and packed as item Nos. 1 to 10. The vehicle is manufactured by TATA and the front side engine is touching the ground. The front two tyres and axle are seen separated from the vehicle. Front right side bumper, its upper level body and right mud guard are seen damaged, bent and torn. There is damage to bonnet, the left side bumper and its upper body. The diesel tank was found to be separated. The Scientific Assistant has also taken portions of the tyre and some paint from the front side of the vehicle which is also taken as item Nos. 11 and 12.

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The contention raised by the learned counsel for appellants is that going by the tyre marks which are noticed by the police in the presence of the Scientific Assistant, it is possible that the lorry had come in a zig zag manner which would have resulted in the accident due to some mechanical failure. Secondly, the samples which were collected were not sent for any analysis and no such report is forthcoming.

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The fact that there were some tyre marks and rupture on the road by itself is not indicative of the fact that the vehicle was coming in a zig zag manner. It is to be noticed that the damage to the road would occur after the actual hit. Before the lorry hitting the Tata Safari car , tyre marks of the lorry would be evident only if the driver had applied sudden

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brake. If the lorry driver just turned the vehicle towards the west (right hand side), while the Tata Safari car was proceeding towards north, there would not be any rupture marks, whereas rupture marks would appear from the impact point alone, as impact of the hit had taken their vehicle forward and the lorry was lying facing towards west, its front portion outside the tarred end of the road on the western side of the road. The Tata Safari was overturned and was lying a little away from the lorry.

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In so far as the factum of accident is not disputed and there is evidence to prove that such a collision had occurred and the vehicles involved were the aforesaid lorry and the Tata Safari, absence of examining the samples collected by the Scientific Assistant is not at all relevant either for the prosecution or for the defence. The prosecution is trying to establish the fact that the lorry deliberately hit on the Tata Safari car. The factum of the lorry hitting the Tata Safari car is not disputed, or it cannot be disputed. Hence, we do not think that the analysis of the samples collected by the Scientific Assistant would render any help to the defence. Even assuming that the said report is available, the same will not have any bearing on the facts to be proved by the prosecution nor will it be of any help to the accused.

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From the photographs produced in the case, we could see that the front right wheel of the lorry had rammed into the right front side of the Tata Safari and thereafter the lorry ran into the entire right hand portion of the Tata Safari thereby overturning the said vehicle. The

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impact of the hit was on the tyre of the lorry and it is during that process that a hole developed in the tyre of the lorry which caused tear on the tube as well. It is due to the said impact that the tyre and axle of the lorry fell apart.

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PW2, PW3 and PW6 to PW8 have clearly deposed to the fact that the incident was not an accident but a deliberate hit which is supported by the evidence of experts and their report viz., PW106 and PW107 and Ext.P177. Taking into consideration the aforesaid factual aspects, we are of the view that the lorry did not have any mechanical defect and the incident did not occur on account of any defect of the lorry, whereas it was a deliberate hit.

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RESULT OF THE HIT

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Immediately after the accident, the injured were taken to the Medical College Hospital, Alappuzha. PW78, Dr.Jameela examined Ramesh, Latha and Shamsudeen and they were declared dead. Exts.P95 to P97 are the death intimations issued by PW78 in respect of the deceased. Ext.P8 is the inquest report of deceased Ramesh. Ext.P21 is the inquest report of Latha and Ext.P22 is the inquest report of Shamsudeen. PW79, Dr.Valsala conducted autopsy on the dead body of Shamsudeen and Ext.P98 is the post-mortem certificate. He suffered 19 ante-mortem injuries and the opinion of the Doctor regarding cause of death is that the deceased died due to multiple injuries. Dr.Ajay who is examined as PW80 conducted post-mortem examination on the body of

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Ramesh and Latha. Ext.P99 is the post-mortem certificate issued after conducting autopsy on the dead body of Ramesh. Ramesh suffered 8 ante-mortem injuries and as per the opinion of the Doctor, the cause of death is due to injuries sustained to the head, trunk and left lower limb. Ext.P100 is the postmortem certificate in respect of Latha. She suffered 5 ante-mortem injuries and as per the opinion of the Doctor, the cause of death is due to the injury sustained to head and trunk. PW6 was examined by PW89 at 3.20 pm on 20/7/2005 and Ext.P123 is the wound certificate. The injury noticed is pain on right shoulder. X-ray examination showed that he sustained fracture at neck of scapula. Doctor while being examined before Court opined that the injury found on his body could be caused as alleged, i.e., due to an accident involving a lorry.

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PW8 has been examined by PW89 and Ext.P122 is the wound certificate. He suffered the following injuries:

¶111

“1. Quadriplegia with cervical spine injury.

¶112

2. Head injury with scalp lacerations.

¶113

3. Fracture both bones (R) forearm. On X-ray examination it was found that his X-ray of right forearm showed fracture both bones (R) forearm. CT scan of the head showed fracture maxillary sinces. His X-ray of cervical spine showed fracture C-6 vertebrae”.

¶114

Injury No.1 was stated to be very serious paralyzing four limbs with no control of passing urine or motion. After discharge from Medical College Hospital, he had undergone treatment in Amritha Institute of Medical

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Science and Research Centre, Kochi. Ext.P84 contains the treatment records. PW90 is the Doctor who had given evidence regarding the treatment given to PW8. His position during trial was that he was still in a paralytic condition. It is observed that he was brought in a stretcher before Court. PW89 also opined that the injuries could be caused due to an accident as stated by PW8.

¶118

INVOLVEMENT OF ACCUSED 1&2

¶119

The prosecution attempted to prove the ownership of the lorry with the first accused, and that the money to purchase the lorry was paid by accused 6 and 7. In order to prove that the lorry was purchased by A1, they placed reliance upon the evidence of PW12 to PW15 and PW17. PW17, Shaji deposed that he is the Proprietor of KBM Transport. He is involved in sale of vehicles and also transportation. He identified the first accused Unni. According to him, he is a driver at Island and he knew him on account of that. A1 had requested him to arrange purchase of a lorry during July, 2005 for the purpose of transporting junk. Since such vehicle was not available, he had informed the said fact to the first accused.

¶120

PW12 is the registered owner of vehicle KRO 1760. He deposed that the name of the lorry was Kallarackal which was his house name. He knew about the accident. After purchasing the lorry, he used it for 20 months. He thereafter sold it to one Makkar by way of an exchange. He had given `2,90,000/- along with the lorry to buy a Nissan Tipper Lorry

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from Makkar. On knowing about the accident, he called Makkar who told him that he had given the lorry to a broker at Kaloor Syamalan, He called Syamalan and he was told that a person from Palluruthy has purchased the same. In cross examination, when he was asked whether there was any document to show that he had sold the vehicle, he deposed that the document was an agreement with Makkar which was given to Inspector Sri.Johnson. Suggestion was that there is no material to prove the sale of the lorry to Makkar which he denied.

¶124

PW13 is Makkar. He deposed that he had purchased the lorry bearing No. KRO 1760 on 10^th July, 2005. He sold it to his brother Ahamed Kabir for `1,05,000/-. He had prepared an agreement for the same which he proved as Ext.P14. He knew that his brother had sold it to some other person. Later he had come to know that the vehicle was involved in the accident. In cross examination, the accused proceeded on the basis that Ext.P14 had been manufactured as per the directions of the police which the witness denied.

¶125

PW14 is Ahamed Kabir, brother of Makkar. He states that after purchasing the lorry KRO 1760, he sold it to two persons by name Ajith and Unni on 13/7/2005. They approached him with Syamalan who was conducting MS Autos at Kaloor. It was sold for 1,15,000/-. 50,000/- was received as advance. The money was paid by Unni.

¶126

PW15 is Syamalan who had identified accused 1 and 2. According to him, he knew them and he had arranged sale of lorry KRO

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1760 to them. A person named Antony whom he knew had called him and asked for a vehicle by giving around 1 lakh. Pursuant to the same, accused 1 and 2 had come to his office on 8th July. He made enquiries and arranged a vehicle and thereafter informed Antony. Accused 1 and 2 came on 13th morning at 10.00 am to his office. After half an hour, Antony also came. All of them together proceeded to Thodupuzha. The purpose was to visit one Nanappan's house. Though they examined a vehicle, they did not approve the same and thereafter they came back to Moovattupuzha. On enquiry, they understood that Kabir had a vehicle. They went and saw the vehicle. Kabir offered to sell the vehicle at 1,30,000/- which was later negotiated and fixed at 1,15,000/-. 50,000/- was given as advance and `65,000/- was to be paid within twenty days on which date the RC Book, certificate of fitness and permit will be given. Agreement was prepared in the name of Ajith (A2). He is a witness to the document which is marked as Ext.P15. Unni (first accused) along with Ajith came in the lorry. Unni drove the lorry. PW15 along with Antony and Nanappan also came back. Nanappan got down at Tripunithura and himself and Antony came to their office. After some time, accused also reached. After half an hour, accused 1 and 2 along with Antony proceeded to Palluruthy by road. In cross examination, the suggestion was that Ext.P15 was fabricated at the instance of the police, which he denied.

¶130

The prosecution further relied upon the evidence of PW45 and

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PW46. The accused 1 and 2 had taken the lorry to a temple for pooja and as per the testimony of PW45 and PW46, the vehicle was blessed and necessary fee had been remitted by the first accused. PW45 had identified the first accused also. According to the defence, the evidence of PW45 and PW46 were cooked up by the police as there was no such instance at all.

¶134

Despite the earnest attempts made by the learned counsel for accused 1 and 2 to argue that the aforesaid witnesses cannot be believed, all of them had withstood the cross examination and we have not come across any material omission or contradiction to discredit them. It is proved beyond reasonable doubt that the accused 1 and 2 was in search of a lorry and had acquired the lorry bearing No.KRO 1760.

¶135

An attempt had been made by the prosecution to prove that the amount spent by accused 1 and 2 for giving advance for the lorry was arranged from the money paid by 6^th accused.

¶136

According to the prosecution, the first accused was driving the vehicle at the relevant time and the second accused travelled with him. As already mentioned, accused 1 and 2 were involved in the purchase of the vehicle which fact is proved beyond reasonable doubt. The witnesses on the side of prosecution PW2, PW6, PW7 and PW8 had categorically stated in evidence that they had seen accused 1 and 2. PW2 deposed that he saw the driver and his helper sitting on the western side of the road. He identified them in court. He also deposed that he saw them

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waving to stop a tanker lorry coming from north, got into it and proceeded in it. In cross examination, he stated that he saw them sitting on the western side of the road after alighting from the lorry. PW6 and PW8 also identifies A1 as the driver of the lorry and A2 as the other passenger in the lorry. PW7 is a person who was the Proprietor of Kargil hotel and he knew the incident which happened at 1.45 pm on 20/7/2005. He was sitting in the counter of his hotel. He saw a red coloured Tata Safari car proceeding from south to north. When the vehicle reached near his hotel, it slowed down a bit and thereafter proceeded towards north. The vehicle was going through the western side of the road. Within 1½ minutes, he heard a sound. When he came down to the road, he saw the car upside down being hit by the lorry. He also deposed that he saw two persons alighting from the lorry and sat on the western side of the road, with their head down. They sat their for a second, immediately they got up went to the eastern side of the road, waved a tanker lorry to stop, got into it and proceeded towards south. He identified them as A1 and A2. Evidence of PW7 is attacked again alleging that he is a planted witness. In fact, he did not say that he had actually seen the incident. Immediately after hearing the sound, he had gone to the scene and saw accused 1 and 2.

¶140

The defence argued that PW2 and PW7 who were persons in the locality is alleged to have seen the accused only for a few seconds, and in the absence of conducting a Test Identification Parade, their presence

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in the lorry cannot be proved. Investigating officer had taken the accused to the witnesses, and shown them. Hence there is no sanctity in the dock identification. As far as PW6 and PW8 are concerned, they were sitting in the Tata Safari car and their testimony that they had seen accused 1 and 2 in the lorry is unbelievable. Further, the investigating officer had taken the accused to the witnesses, and they identified them.

¶144

The learned counsel for accused 1 and 2 placed reliance on some judgments, in support of his argument that, without conducting a TIP, the identification made by witnesses in court, after several years, cannot be relied upon as proof of their presence.

¶145

38.1. Kannan and others v. State of Kerala (AIR 1979 SC 1127) is cited to emphasise the requirement of conducting Test Identification Parade. In this case, the Apex Court held that where a witness identifies an accused who is not known to him in Court for the first time, his evidence is absolutely valueless unless there is a previous T.I .parade to test his powers of observations. The idea of holding of T.I. parade u/s 9 of the Evidence Act, is to test the veracity of the witness on his capability to identify an unknown person whom the witness may have seen only once. It is further held that if no T.I. parade is held, then it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.

¶146

38.2. In Laxmipat Choraria and others v. State of Maharashtra (AIR 1968 SC 938), the Apex Court held that the ability of

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a witness to identify the accused should be tested without showing him the suspect or his photograph or any data for identification.

¶150

38.3. Manzoor v. State of Uttar Pradesh [1982 SCC (Cri) 356]. In this case, the Apex Court held that if at the earliest opportunity, the witnesses did not mention any identifying features of the culprits, it is difficult to believe how they could identify the culprits two months later. That was a case in which the culprits were shown to the witness before conducting the TIP.

¶151

38.4. Mohanlal Gangaram Gehani v. State of Maharashtra

¶152

(AIR 1982 SC 839). In this case, it was held that as the witness did not know the accused before the occurrence and no test identification parade was held, the test is, power of identification. The accused was shown to the witness by the police officers. Thereafter, the witness identified the accused in Court. It is held that the evidence of the said witness becomes absolutely valueless on the question of identification.

¶153

38.5. Mohd. Abdul Hafeez v. State of Andhra Pradesh

¶154

[1983 SCC (Cri) 139]. In this case, the investigating agency did not conduct any test identification parade. When the victim came to Court, he gave evidence identifying the four accused who were sitting in the Court. It was observed that the incident occurred on 9/12/1978 and the evidence was recorded on 21/4/1979. There was a lapse of more than four months during which period it is not possible to believe that the witness had no occasion to see the accused. It is held that such

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identification would hardly furnish evidence against the accused.

¶158

38.6. Musheer Khan @ Badshah Khan and another v. State of

¶159

Madhya Pradesh (AIR 2010 SC 762). Paragraphs 22 23 and 27 being relevant, reads thus:

¶160

“22 . So far as identification by PW-3 is concerned, the Court must take into consideration the extremely limited opportunities which PW-3 had of seeing the accused persons.

¶161

23 . It is the prosecution case that A-4 and A-5 are hired criminals and are not persons of the locality. Prosecution has not also claimed that A- 4 and A-5 were known to PW-3 from before. From the evidence of PW-3 it is clear that PW-3 only had a fleeting chance of seeing A-4, A-5 and A-7 when they were obviously in a hurry to board the scooter and escape from the scene. Assuming that there was street light, as is the claim of the prosecution, it is obvious the accused persons were fleeing from the place of occurrence on the scooter. Therefore, excepting a fleeting glance PW-3 had very little chance of seeing A-4, A-5 and A-7”.

¶162

“27 . It may be pointed out that identification test is not substantive evidence. Such tests are meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. (See Matru Alias Girish Chandra vs. The State of Uttar Pradesh - 1971 (2) SCC 75 at para 17) : (AIR 1971 SC1050)”.

¶163

38.7. Krishnan Kumar Malik v. State of Haryana [2011 CRL.L.J.

¶164

4274 (SC)]. In this case, Apex Court held that dock identification in Court becomes meaningless when the accused was already shown to the witness at the police station.

¶165

38.8. OMA alias Omprakash and another v. State of Tamil

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Nadu (AIR 2013 SC 825). Paragraphs 31, 34, 35 and 41 reads thus:

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“31 . Evidently, the witnesses did not know the accused earlier, hence the accused could be identified only through a test identification parade which was not done in this case, so far as A- 2 is concerned. In this connection, we may refer to the judgment of this court in Mohd. Iqbal M. Shaikh v. State of Maharashtra (1998) 4 SCC 494 : (AIR 1998 SC 2864 : 1998 AIR SCW 1741) wherein this Court held that:

¶170

"If the witness did not know the accused persons by name but could only identify from their appearance then a test identification parade was necessary, so that, the substantive evidence in court about the identification, which is held after fairly a long period could get corroboration from the identification parade. But unfortunately the prosecution did not take any steps in that regard and no test identification parade had been held." 34 . Further, it is also held that:

¶171

"It was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification."

¶172

“35 . A-2, it may be noted, was not named in the FIR, nor any identification parade was conducted to identify him by the witnesses. It is rather impossible to identify the accused person when he is produced for the first time in the court i.e. after ten years since he was unknown to the witnesses. We are of the view that it is a glaring defect which goes to the root of the case since none of the witnesses had properly identified the accused”.

¶173

“41 . Article 141 of the Constitution of India stipulates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The reasons ascribed by the learned trial Judge are required to be tested on the bedrock of precedents in their conceptual and perceptual eventuality.”

¶174

38.9. Md. Sajjad v. State of West Bengal [2017 (1) KLD 260

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(SC)]. One of the issues considered by the Apex Court in the case was regarding identity of the accused. After referring to judgment in Lal Singh and others v. State of UP [(2003) 12 SCC 554], it was held that despite the fact that there was delay in holding the TIP, none of the concerned prosecution witnesses had given identification marks or disclosed special features or attributes of any of the four persons in general and the accused in particular. The identification parade was done 25 days after the arrest. Hence, it was held that identification simplicitor cannot form the basis or be taken as the fulcrum for the entire prosecution case. Conducting of a Test Identification Parade is not mandatory in all the cases.

¶178

It is trite that TIP is conducted only for investigation purposes which is not substantive evidence and it is only for helping the investigation, in order to ensure that the investigation is proceeding in the right direction, and TIP could be used to corroborate the dock identification. Though, absence of conducting a TIP is not fatal to the prosecution, in instances were the witnesses have seen the accused only for the first time in his life, and for a short time, if they could not give any identifying features, the investigating agency should resort to TIP. Each case of course, will depend upon its own facts. The main object of holding an identification parade during the investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be

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cited as eyewitnesses of the crime. However, as held by the Apex Court in Sampat Tatyada Shinde v. State of Maharashtra (AIR 1974 SC 791), the identity of the accused can be proved by circumstantial evidence also. In the case on hand also, the Investigating Officer ought to have conducted a TIP, to prove the identity of accused during investigation. But in this case there is another crucial circumstance, wherein the accused 1 and 2, themselves have admitted their presence, at the time of incident.

¶182

When accused 1 and 2 were taken to the Doctor for examination, they explained to the Doctor, how they suffred the injuries, noted in Exts.P124 and P125 wound certificates. PW91 is the Doctor who examined them. In the presence of the Doctor, accused 1 and 2 have explained the nature of injuries, and how the injuries have been caused and the statement of the first accused as recorded in Ext.P124 is as under: “20/7/2005, 1.45 pm നു കണപ്പിചകുളങ്ങര എൻ.എച് ച .ജങചങ്ഷനപ്പിൽ വച KRO 1760 പലപോറപ്പി KL13 E/9180 നമ്പർ കപോറപ്പിൽ മനപൂർവക്കും ഇടപ് പ പ്പിച്ചതപ്പിൽ വച.” In Ext.P125 statement of A2 to the Doctor, it is recorded as follows:- “20/7/2005, 1.45 pm കണപ്പിചകുളങ്ങര എൻ.എച് ച .ജങചങ്ഷനപ്പിൽ വച KRO 1760 പലപോറപ്പി KL13 E/9180 നമ്പർ കപോറപ്പിൽ മനപൂർവക്കും ഇടപ്പിച്ചതപ്പിൽ വച". Learned counsel for the appellants/accused 1 and 2 argued that there is

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overwriting in Ext.P124 and that apart, it amounts to a confession which is not admissible in evidence as per S.26 of the Indian Evidence Act. As far as overwriting is concerned, it is countersigned by the Doctor and it is only for including the word 'junction'. Further, he was examined before Court as PW91. He deposed that accused 1 and 2 had voluntarily given such a statement. If these statements are taken as evidence, the entire explanation of accused 1 and 2 that they have no knowledge about the accident, falls to the ground. They have in their 313 statement, denied all the facts including the fact that they were driving the vehicle at the time when the accident occurred.

¶186

In support of the argument that the statement of accused in Ext.P124 and Ext.P125 amounts to admission and not confession, the learned Public Prosecutor placed reliance upon the Full Court Bench judgment in State v. Ammini and Others (1987 (1) KLT 928). This was a case in which the two of the accused suffered injuries in their hand. They told the Doctor that the injury occurred while they were trying to silence the victim and holding her from wriggling off. The victim died due to administration of poison by force. The Full Bench held that it does not amount to a confession but is an admission of a fact, and if a fact is admitted, even if it is incriminating, but it does not by itself establish the guilt of the maker, it would not amount to confession within the meaning of S.24 to 26 of the Evidence Act. It will be useful to refer to paragraph 45 of the judgment in Ammini (supra) which reads as under:-

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“45 The admissibility is questioned on the ground that the statements are hit by S.26 of the Evidence Act which prohibits confession made by a person “whilst he is in the custody of a police officer”. What is prohibited is only “confession”, and the embargo is not extended to the statements which do not amount to confession. Admissions can be proved as against the person who makes it, and S.21 of the Evidence Act permits such admissions being proved. The contours of S.21 are not bounded by limitations of the person being in the custody of a police officer. There is no doubt that if the admission amounts to “confession” it transgresses into the forbidden field designed in S.26. What is a “confession”? Neither the Evidence Act nor other statutes on criminal law defines confession. Privy Council, way back in 1939 in Pakala Narayana Swami v. Emperor (AIR 1939 P.C. 47) made the endeavour to explain the word “confession” as used in the Evidence Act. Lord Atkin who delivered the famous judgment in that case stated thus: “The word “confession” as used in Evidence Act cannot be construed as meaning a statement by an accused “suggesting the inference that he committed” the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence: An admission of a gravely Incriminating fact, even a conclusively incriminating fact is not of itself a confession”.(emphasis supplied)

¶190

The Supreme Court adopted the aforesaid explanation as correct in Palvinder Kaur v. The State of Punjab (AIR 1952 SC 354). In Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119) Supreme Court considered the question of sever-ability of the accused’s confession while in custody, one exculpatory and the other inculpatory. In the context, Supreme Court found it worthwhile to adopt the same line of thinking about the contours of confession and the principles followed in Palvinder Kaur’s case were reaffirmed. The important decision on this subject, in view of the context in this case, is Kanda Padayachi v. State of Tamil Nadu (AIR 1972 SC 66). The subject dealt with in that decision is the admissibility of a statement made by an accused, in police custody, to a doctor regarding some minor injuries found on his person, to the effect that “it was the deceased

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who at about midnight on July 10, 1969 had caused the injury on his toe by biting him”. The Supreme Court made reference to the case law on the subject including Pakala Narayana Swami’s case and held that the statement in question did not amount to a confession, but only amounts to an admission of a fact “no doubt of an incriminating fact, and which established the presence of the appellant in the deceased’s room”. The dictum has been laid down in para 13 of the judgment which reads thus:

¶194

“It is thus clear that an admission of a fact however incriminating, but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of S.24 to 26 of the Evidence Act”.(emphasis supplied)

¶195

A Division Bench of this Court in Chandran v. State of Kerala (1987 (1) KLT 391) followed the same principle. When the statements attributed to the second and third accused in Exts. P22 and 36 respectively are judged from the above guidelines, we hold that, though incriminating, the statements do not amount to confession and hence they are not hit by S.26 of the Evidence Act”.

¶196

The learned counsel for accused 1 and 2 having placed reliance

¶197

upon the judgments relied upon in Ammini (supra) and even in Ammini, contended that in all such cases there was no admission of guilt, whereas in Exts.P124 and P125, there is a definite statement that lorry was deliberately hit on the car, which amounts to confession.

¶198

But, we do not think that we can agree with the said submission. In the case on hand as well, accused had only informed the Doctor about the cause of the injury which, though incriminating, they admit their presence at the time of accident, in which event, it will not amount to a confession regarding the commission of crime viz., the murder, conspiracy etc, as they do not admit that they have committed the

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crime. Therefore, the evidence of PW91 read with Exts.P124 and P125, proves the fact that accused 1 and 2 suffered injuries on 20/7/2005 due to the deliberate hitting of the lorry into the Tata Safari car. When the aforesaid statement is taken as an admission of an incriminating fact, their presence in the scene of occurrence is proved. Therefore, the oral testimony of PW2, PW6, PW7, PW8 and PW91 read with Exts.P124 and P125 conclusively proves the involvement of the first and second accused in the crime.

¶202

Learned counsel for the appellants submitted that there is absolutely no evidence against the 2^nd accused. That the second accused was all along with the first accused for the purchase of vehicle, at the time when it was taken to the temple for pooja, and his presence in the lorry at the time of the accident, clearly proves that he entertained a common intention with the 1^st accused to commit a 'make believe accident' and therefore accused No.2 is responsible for every act committed by the first accused in furtherance of their common intention. If he had no such intention, he would not have travelled in the said vehicle and after the hit, both of them, together left the place.

¶203

Next question to be considered is the involvement of the other accused to the crime. Accused 1 and 2 have no previous connection, association or enmity whatsoever with deceased Ramesh and the defence has no such case. Therefore, it can be assumed that he had committed the crime on behalf of another person. According to the

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prosecution, the 3^rd accused and the 4^th accused together managed the commission of crime through A1 and A2 at the instance of A6 and A7. Prosecution alleges that a conspiracy was hatched up to do away with Ramesh, due to the enmity A6 and A7 had with Ramesh.

¶207

ENMITY BETWEEN HIMALAYA AND RAMESH

¶208

The prosecution tried to prove enmity between Ramesh and accused Nos.6 and 7, by placing reliance upon the oral testimony of PW9, PW10, PW16, PW21, PW70, PW82, PW83, PW84, PW85, PW88 and PW101.

¶209

PW9 is the widow of deceased Ramesh. She deposed about the enmity the owners of Himalaya Chitty Company had after the formation of Everest Chit Company. The Himalaya people had sent their henchmen to the different branches of Everest Chit Company and had committed acts of violence. She deposed that Ramesh was tortured both physically and mentally. In September, 2004, while Ramesh was travelling with his Manager in a motor cycle, Pradeep who is the uncle of 6^th accused and a local goonda Sri.Nazeer attempted to commit murder of Ramesh and in the process he suffered fracture to his hand and leg. A false complaint was filed by the 3^rd accused Saju who was working as Manager in the Himalaya Offset Press against Ramesh which was later referred as a false case. They had to shift their residence from their family house at Cherai due to the constant torture by the Himalaya group. They also pelted stones on the family house of Ramesh and Ramesh's mother had given a

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complaint to the police. Sajith and Bineesh, accused 6 and 7 had even threatened Ramesh's mother over telephone by stating that his days were numbered. Threatenings were made over telephone and therefore mother got the telephone connection disconnected without making payment of the telephone bills. Though they shifted to Vadakkumpuram, the torture continued. A few days before the date on which Ramesh was killed, Sajith had made a call to her over telephone and she was told that she will be made to hear his cry and Ramesh's head is at the edge of his sword. She also deposed that during those days her husband used to tell her that he would be killed by them, either by an accident to the vehicle or by bomb explosion. Since their vehicle a Tata Sumo could be easily identified, they purchased a Tata Safari car in the name of Sivan who is an associate of Ramesh. In fact, PW6 Kuttikrishnan had also stated in his evidence that after Ramesh left Himalaya Chitty Company and started Everest Chitty Company, owners of Himalaya Chit Company were on inimical terms with Ramesh.

¶213

PW8 has also given evidence stating that Ramesh and Latha had told him that there was threat from Sajith and Bineesh (A6 & A7), the Managing Directors of Himalaya Chitty Company. Ramesh had once told him that goondas of Himalaya Chitty Company had brutally manhandled him.

¶214

PW10 is Sivan in whose name Ramesh purchased the Tata Safari car. He turned hostile to the prosecution.

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PW16, Deepuraj is Ramesh's paternal uncle's son. He used to accompany Ramesh for his security. He deposed that, on 19/7/2005, he accompanied Ramesh in the Tata Safari car. They had with them PW10 and also an Advocate. They proceeded to the Fast Track Court at Ernakulam. Ramesh had gone to the Court to become an accomplice in a case in which A6 and A7 along with Ramesh were implicated as accused.

¶218

PW21 Harshad Hussain is an employee of Everest Chit Company. He deposed that accused 6 and 7, the Managing Directors of Himalaya Chitty Company had certain clandestine dealings and as Ramesh could not reconcile with the same, he left the company and started his own establishment in the name and style Everest Chitty Company. After forming the new company, there were severe threats to the life of Ramesh from the owners of Himalaya Chitty Company and several attempts were made by them to see that the establishment of Ramesh is somehow closed. He was also threatened by Bineesh over telephone and he was asked to leave his job in Everest Chitty Company. In 1-1½ years time, the company flourished and they had about 300 employees and `2 lakhs was paid as total monthly salary. Ramesh along with Sajith and Bineesh (A6 and A7) were accused in a case pending before the Fast Track Court Ernakulam and on the previous day of his death, he had gone to the said Court to become an accomplice in the said case. Accused No.3 and one Rafi had given a complaint against PW21 and Ramesh alleging that they were attacked by them. After investigation, the case

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was closed. He had also given a complaint before the Dy. Superintendent of Police about the unlawful activities of Sajith and Bineesh while he was convening a meeting of citizens at Paravoor.

¶222

PW82, T.A.Bose was working as a writer in the Munambam police station from June 2004 to January, 2006. He produced the petition register of Munambam police station which contained entries relating to petition No122/2004 and petition No.133/2005 which were marked as Exts.P105 and P107. Ext.P103 is the mahazar which he had attested. Ext.P104 is the petition No.122/2004 and Ext.P106 is the petition No.P133/2005. PW83 was working as a Police Constable in Njarackal police station in October 2005. He produced petition register for the year 2010 which is marked as Ext.P110. It was taken from him as per Ext.P108 mahazar and the petition registered as 69/2004 is produced which is marked as P109.

¶223

PW84 was the Sub Inspector of police of Muhamma police station on 13/8/2005. He accompanied the investigating officer to conduct search in the head office of Himalaya Chitty Company in Cherai. They have seized certain items and Ext.P111 is the search list in which he is an attestor. Ext.P112 is the passbook seized from the said office.

¶224

PW85 has retired from service as Sub Inspector of police. While he was working in Munambam police station, he registered crime No.27/2004 against Ramesh on the basis of a complaint filed by A3. Ext.P113 is the certified copy of the FIR. Complaint was filed by Abhilash,

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who was working as Manager of Himalaya Rice Agency on 31/5/2004 (Ext.P104) alleging that Ramesh and his friend Harshad had abused him. The complaint was taken on record in Ext.P105 petition register under Sl.No.122/2004. Ext.P105(a) is the entry relating to the same. On 2/6/2004, he registered crime No.98/2004 of the Munambam police station against Sajith, Bineesh (A6 and A7), Vipin Babu and Dileep Kumar for offences u/s 120B, 420, 511 r/w S.34 of IPC. Ext.P114 is the FIR. Compliant was filed by Ramesh before the Judicial First Class Magistrate Court, Paravoor which was forwarded to the Munambam police station. Ext.D11 is the certified copy of the refer report in crime No.98/2004. The 7^th accused had filed a complaint against Adv.V.A.Hakkim before the Munambam Police station. Certified copy of the FIR in crime No.288/2003 is marked as Ext.P116. Certified copy of the FIR in proceedings initiated against Ramesh u/s 107 Cr.P.C. is marked as Ext.P115.

¶228

PW88 K.M.Shamsudeen was working as Additional Sub Inspector of police of the North Paravoor police station from 16/6/2004 to 16/6/2006. He had registered crime No.473/2004 on the basis of FIS given by Ramesh while he was undergoing treatment in Don Bosco Hospital, Paravoor and Ext.P121 is the chargesheet filed before the Judicial First Class Magistrate Court, North Paravoor. The second accused in the said case is one Pradeep who was working in the Himalaya Company. Case was filed under Sections 143, 147, 148, 341, 324, 326 and 308 r/w S.149 of the I.P.C.

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¶230

¶231

PW101, P.K.Sabu was the Sub Inspector of police of Munambam police station from 3/5/2005 to 25/3/2006. He deposed that on 15/7/2005, he received a complaint from Mani, wife of Gopalakrishnan. Ext.P106 is the complaint and it was entered in the petition register Ext.P107 as Ext.107(a). The compliant was made against Abhilash and Sibin @ Ooty Kannan. He had gone to the house of Mani and found that the window panes were broken.

¶232

Evidence of PW9 further indicates the apprehension expressed by Ramesh. Ramesh feared that he would be killed either in an accident or in a bomb blast. She further deposed that Sajith had called her on one occasion and threatened her which indicated that Ramesh would be killed. Learned counsel for the 6^th accused emphatically contended that the said evidence is not believable. One contention is that she had not made any such statement at the time when the initial statement was recorded by the Circle Inspector of Police, which is an omission that amounts to a contradiction. But reading of her evidence would show that she had given such a statement to the Deputy Superintendent of Police. This is what she had deposed. “സക്കുംഭവക്കും നടകന്നതപ്പിനു കുറച ദപ്പിവസക്കും മുൻപച സജപ്പിതച എനന്ന പഫപോണപ്പിൽ വപ്പിളപ്പിച്ചപ്പിടച ഞപോൻ സജപ്പിതച ആനണനക്കും അവനന്റെ നപ്പിലവപ്പിളപ്പി നപ്പിനന്ന ഞപോൻ പകൾപപ്പികനമനക്കും അവനന്റെ തല എനന്റെ വപോളപ്പിനന്റെ തുമ്പതപോനണനക്കും

¶233

എപന്നപോടച പറഞ". In cross examination, she stated that Sajith called her

¶234

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one week before the incident and Sajith had not called her either before that or subsequently. When Ramesh died, the threat came to her mind. She states that she does not remember whether she had mentioned about the aforesaid incident to the Circle Inspector of Police but she was definite that she had mentioned the same to the Deputy Superintendent of Police. Again a question was asked without specifying whether it was a statement given to the Circle Inspector or Deputy Superintendent of Police that the fact that Sajith had telephoned her was not stated to the police. She categorically denied the same. According to her, she had mentioned the same to the police. Cross examination proceeded on the basis that she did not know the sound of Sajith but she reiterated that she could identify his voice and he specifically told that it was Sajith. From her oral deposition and the documentary evidence made available before this Court, it is rather clear about the enmity and the threat Ramesh had from Sajith (A6). Though the prosecution had a case that A6 and A7 had threatened the mother of Ramesh that Ramesh would be killed, Ramesh's mother was not examined to prove the said fact.

¶237

The aforesaid evidence would clearly indicate that there was enmity between the owners of Himalaya Group and Ramesh. Once the enmity is proved, we can only assume that they were not on cordial terms, but were on logger heads.

¶238

EVIDENCE OF CONSPIRACY

¶239

How was the conspiracy hatched up and who were the persons

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involved in it is the moot question. According to the prosecution, A6 and A7 made arrangements with A3 and A4 to arrange goondas/assassins to commit the murder and to make it believe that it was an accident, for which they paid `50,000/- to the third accused who handed it over to the first accused and the said amount was paid as advance for purchasing a lorry, which was involved in the crime. A6 and A7 paid money to the third accused for purchasing a new Qualis car to follow Ramesh and to know his movements.

¶243

Prosecution produced a statement of the bank account details of A3, Ext.P134, which was seized by the police as per Ext.P135 mahazar. It is a copy of print out of the account details of the 3^rd accused maintained by him in State Bank of India, Cherai. The said account would show that there was a credit of 2,25,000/- out of which he had paid 1,50,000/- by way of cheque to PW99, George Varghese. Account also shows that he had issued a cheque for `75,000/- on another date. The contention of the Prosecutor is that A3 did not have sufficient funds to purchase a Qualis car and the said amount was arranged by the Managing Directors of Himalaya Chits. The vehicle Qualis car itself was purchased for the purpose of following Ramesh, without them being identified, as Ramesh knew the vehicles owned by Himalaya group and its officers. The learned Prosecutor also placed reliance on the bank account details of A6 and Himalaya Group of companies. Ext.P130 is the print out of statement of account of the 6^th accused from 1/1/2005 to 17/8/2005. The print out of

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statement of account of the 7^th accused in the same branch is marked as Ext.P131. The current account of Himalaya Chit (P) Ltd account details from 1/1/2005 to 30/7/2005 is produced as Ext.P132. Ext.P133 is the mahazar under which the statement particulars of A3 was taken from SBI Cherai branch. The print out of the statement of accounts from 2/5/2005 to 28/5/2005 is marked as Ext.P134. PW95 had obtained all these details from the respective branches. The account details of the company would show that certain amounts had been withdrawn on 28/7/2005 and 29/7/2005. The ATM account details of A6 has been produced and the contention urged by the Public Prosecutor is that he had withdrawn 15,000/- continuously during July 2005 out of which 50,000/- was paid to the 3^rd accused who in turn paid it to the first accused.

¶247

Ext.P132, the certified extract of an account maintained by Southern Himalaya Chitties Pvt.Ltd from 1/1/2005 to 30/7/2005, would show that there had been substantial withdrawals as well as deposits in the account and during the relevant month, i.e, July 2005, there were some deposits and withdrawal of 9 lakhs on 29/7/2005 and 5 lakhs on 30/7/2005. Similarly, accounts of various other sister concerns have also been produced. It could also be seen that separate accounts were also being maintained in the name of other institutions of the same group. Ext.P130, the statement of account of 6^th accused Sajith N.S., maintained with Federal Bank under customer ID No.13633 from 1/1/2005 to 17/8/2005, would show that in the month of July, 2005, there were

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substantial withdrawals and deposits. The prosecution has a contention that the 6^th accused had drawn cash through his ATM from the aforesaid account, 15,000/- each on most of the days which was utilized for payment to the 1st accused through the 3rd accused for purchasing the lorry. But, if we look at the statement of account from 1/1/2005 onwards, it could be seen that several amounts 10,000/-, 12,000/-, 15,000/-, `5,000/- etc., were being withdrawn periodically from the said account through ATM and cash deposits were also correspondingly made. Therefore, withdrawal of some amounts during July, 2005 by itself cannot be characterized as an abnormal feature of the account to infer that the money had been paid for purchasing lorry. Ext.P131, the statement of account of Bineesh K.M. with customer ID 13634 maintained with Federal Bank Ltd from 1/1/2005 to 17/8/2005, also shows a similar state of withdrawal and deposit, including that of July, 2005. Therefore, nothing turns out from the said statement of account and it may not be possible for us to arrive at a conclusion that either accused No. 6 or 7 had taken money from their accounts and paid to the first accused through the third accused.

¶251

EVIDENTIARY VALUE OF CALL DATA RECORDS

¶252

Now, we shall consider whether the CDRs produced in the case can be treated as substantive evidence for want of certification. In Anvar v. Basheer [2014 (4) KLT 104 (SC)], a three Judge Bench of the Apex Court had occassion to consider the evidentiary value of electronic

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records produced as secondary evidence. The Apex Court was considering an election petition. As evidence in the said case, electronic records were also produced. One of the issues that arose for consideration was regarding admissibility of electronic records. After referring to various provisions under the Evidence Act especially a newly introduced Section, S.65B, it was held at paragraphs 13 to 17 as under:-

¶256

“13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Ss.59 and 65A, can be proved only in accordance with the procedure prescribed under S.65B. S.65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-s.(2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions u/S. 65B(2). Following are the specified conditions u/S.65B(2) of the Evidence Act:

¶257

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

¶258

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

¶259

(iii) During the material part of the said period, the computer was

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operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

¶263

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

¶264

14. Under S. 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

¶265

(a) There must be a certificate which identifies the electronic record containing the statement;

¶266

(b) The certificate must describe the manner in which the electronic record was produced;

¶267

(c) The certificate must furnish the particulars of the device involved in the production of that record;

¶268

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and

¶269

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

¶270

15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

¶271

16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to

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Section 45A - opinion of examiner of electronic evidence.

¶275

17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements u/S.65B of the Evidence Act are not complied with, as the law now stands in India”.

¶276

However it was clarified that the principle laid down applies only to secondary evidence of the electronic records but if an electronic record as such is used as primary evidence u/s 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in S.65B of the Evidence Act.

¶277

Learned Public Prosecutor on the other hand placed reliance upon a subsequent judgment of the Apex Court in Shafhi Mohammad v. State of Himachal Pradesh [2018 (2) KHC 80 (SC)], wherein Anvar (supra) was also considered. One of the issues that had arisen for consideration in the said case was whether videography of the scene of crime or scene of recovery should be necessary to inspire confidence in the collection of evidence. In the said case, reference was made to a 3 Judge Bench judgment in Tomaso Bruno v. State of Uttar Pradesh [(2015) 7 SCC 178] wherein it was held that electronic evidence is admissible and the provisions u/s 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. It was further held that if the electronic evidence is authentic and relevant, the same can certainly be admitted subject to the Court being satisfied about its authenticity and the procedure for its admissibility may depend upon the

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fact situation such as whether the person introducing such evidence is in a position to furnish certificate u/s 65B(h). At this juncture, it would be apposite to quote paragraphs 11 to 15 of Shafhi Mohammad (supra), which reads as under:-

¶281

“11. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. Primary evidence is the document produced before the Court and the expression “document” is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

¶282

12. The term “electronic record” is defined in Section 2(1)(t) of the Information Technology Act, 2000 as follows:

¶283

“electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;”

¶284

13. The expression “data” is defined in Section 2(1)(o) of the Information Technology Act as follows:

¶285

“data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;”

¶286

14. The applicability of procedural requirement under Section

¶287

65-B(4) of the Evidence Act of furnishing certificate is to be

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applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(h) is not always mandatory.

¶291

15. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies”.

¶292

Learned Public Prosecutor also placed reliance on Sonu @ Amar

¶293

v. State of Haryana (2017 KHC 6474), wherein the Apex Court held at paragraphs 26, 27, 30, 31 and 32 as under:-

¶294

“26. That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B (4) of the Indian Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. In Gopal Das v. Sri.Thakurji, AIR 1943 PC 83, it was held

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that:

“xxxxxxxxx”

27. It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.”

¶300

“30. Section 294 of the Cr. P.C. 1973 provides a procedure for filing documents in a Court by the prosecution or the accused. The documents have to be included in a list and the other side shall be given an opportunity to admit or deny the genuineness of each

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document. In case the genuineness is not disputed, such document shall be read in evidence without formal proof in accordance with the Evidence Act. The judgment in Shaikh Farid’s case is not applicable to the facts of this case and so, is not relevant.

¶304

31. The Effect of Overrule

¶305

Electronic records play a crucial role in criminal investigations and prosecutions. The contents of electronic records may be proved in accordance with the provisions contained in Section 65B of the Indian Evidence Act. Interpreting Section 65B (4), this Court in Anvar’s case held that an electronic record is inadmissible in evidence without the certification as provided therein. Navjot Sandhu’s case which took the opposite view was overruled.

¶306

32. The interpretation of Section 65B(4) by this Court by a judgment dated 04.08.2005 in Navjot Sandhu held the field till it was overruled on 18.09.2014 in Anvar’s case. All the criminal courts in this country are bound to follow the law as interpreted by this Court. Because of the interpretation of Section 65B in Navjot Sandhu, there was no necessity of a certificate for proving electronic records. A large number of trials have been held during the period between 04.08.2005 and 18.09.2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anvar’s case has to be retrospective in operation unless the judicial tool of ‘prospective overruling’ is applied. However, retrospective application of the judgment is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage. Attempts will be made to reopen cases which have become final.”

¶307

In the case on hand, the electronic records which are produced

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are the call details of a few mobile telephone numbers. The attempt of the prosecution is to prove the close nexus between accused 1 and 2 with accused 3 and 4 as well as the 6^th accused to prove the aforesaid fact. Apparently, the call record details are not certified in terms of S.65B(4). But there is seal and signature of the officer who had given the said call detail records. Though it was argued by the learned counsel for the accused that there are certain patent errors in the call detail records (CDR), we do not think so. Of course, in some of the call detail records, the incoming and outgoing calls are shown separately. In one of the CDR, the time of call is not in serial order. But these are all infirmities which normally occur depending on the data which are being prepared in an excel sheet and it is always possible for creating different formats in a computer as per the requirement. But the witnesses are very categoric when they stated that they cannot manipulate the call detail records which are fully computerised and apparently the billing is made based on the said records. The officers who had produced these records were also examined before Court and the documents were marked without any objection. The main thrust of cross examination against them was regarding certification u/s 65B. None of the accused has a case that the documents are fabricated for the purpose of the case. When it is held by the Apex Court in Shafhi Mohammad (supra) that S.65B is only procedural, we are of the view that interest of justice requires that the said CDR's are received in evidence, in the absence of which prosecution

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may not be in a position to prove the case. There is another reason for receiving the call detail records in evidence. When this matter was heard earlier, this Court found that there was no certification for the CDR's and the matter was remitted back for obtaining due certification. The concerned authorities had reported before Court that such details are not available for certification as the same has been deleted from the data base after one year. Therefore, this is a case in which it is impossible for the prosecution to obtain certification from the competent authorities and to discard such evidence which had already been proved before Court without any objection will amount to miscarriage of justice.

¶314

Learned Public Prosecutor also submitted that the State Government has filed an application before the Apex Court in Anvar's case (supra) seeking clarification regarding the applicability of the judgment as there are several cases in which copies of electronic records were produced without certification on the basis of the judgment in State (N.C.T. Of Delhi) v. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600]. But, in so far as the matter is pending for such a long time and the accused are suffering the sentence, it is all the more necessary that the case should be heard at the earliest without the matter being dragged. Though the application was filed before the Apex Court, there is no stay of the present proceedings and therefore we thought it necessary to consider the case without even waiting for the decision of Apex Court to be taken in that regard.

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¶317

CALL DATA RECORDS

¶318

We shall therefore analyse the evidence of CDR's to gather, how it will render any assistance to the prosecution case. PW111, PW112 and PW113 were the witnesses who have been summoned to prove the telephone particulars of the accused.

¶319

PW111 is the legal officer of Reliance Infocom. Ext.P183 is the application and identification proof submitted by the applicant at the time of allotment of mobile connection. The number was 0484 3283659 which was later converted to 9349283659. PW63, Sri.Surendran had given the application and the connection was taken in his name.

¶320

Ext.P184 is the customer application and identification proof of mobile phone no. 9349295559. The application was submitted by one Sanal P.C. The initial number was 0484 3295559 which was converted to 9349295559. The reference number in Ext.P184 was 0484 22363601.

¶321

Ext.P182 is the CDR's of the number ending 3659 from 2/7/2005 to 22/7/2005. According to the prosecution, the number 9349283659 was used by the first accused and the number 9349295559 was used by the second accused. The landline of the second accused was 22363601. PW111 also deposed that from Ext.P182, it could be seen that on 20/7/2005, between 7.51 am to 1.37 p.m, eight calls came from telephone number 9447648404 (A3's number).

¶322

PW112 has proved Ext.P185 which is an application submitted by one Sarojini with identification proof for mobile connection

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9447648404. She submitted the application for issuance of the sim card to her son Saju which is marked as Ext.P185(a). According to the prosecution, Saju is A3.

¶326

PW112 further proves Ext.P186 the application, electoral identity card and other documents of Abhilash N.A., Cherai relating to mobile connection No.9447764556. According to the prosecution, this relates to the number used by the 6^th accused.

¶327

PW112 also produced and proved Ext.P187 the application and identification proof for providing mobile connection no.9447178271. The application is submitted by Girish Kumar P.B. According to prosecution, this phone is used by the 4^th accused. Girish Kumar is PW56 and according to the prosecution, he sold the mobile phone to the 4^th accused.

¶328

Ext.P188 is the application and identification proof submitted by Unnikrishnan relating to mobile No.9447716342. The local reference in the application is that of Bineesh K.N., Kalathil House, Cherai and the landline number is shown as 2489984 and the reliance mobile No. is shown as 9349224556. He also proved the application and identification proof submitted by one Sibinraj relating to mobile connection no.9447797554 which is marked as Ext.P189. The local reference shown in the application is Himalaya Group.

¶329

PW113 is the Vigilance Officer of BSNL. He had given the address details of five mobile numbers as per letter dated 4/8/2005.

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¶331

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Ext.P190 is the said letter. He also proved Ext.P191 in respect of the mobile connection to Girish Kumar having number 9447178271. He deposed that as per the request of Superintendent of Police, he had given the call details of connection nos. 9447178271 and 9447648404. Ext.P190 is the call details of mobile connection No.9447648271 and Ext.P192 is the call details of mobile No.9447648404 for the period from 1/7/2005 to 20/7/2005.

¶333

Prosecution case is that the telephone details of the third accused would show that he was constantly keeping in touch with the first accused. Ext.P192 is the call details of the 3^rd accused from which it is evident that 3^rd accused was contacting the first accused from 2/7/2005 to 20/7/2005. There is also evidence to show that on one occasion the 2^nd accused had called the first accused from his land line. According to the prosecution, the entire conspiracy was hatched up by accused No.3 at the instance of accused 6 and 7 to do away with Ramesh. Prosecution also placed reliance upon other call record details to prove that the 6^th accused was regularly in touch with the third accused by using the telephone of PW103. According to them, before and after committing the criminal act, accused 1 and 2 were constantly in touch with the third accused and the 3^rd accused in turn with the 6^th accused. Learned Public Prosecutor also placed reliance upon details of other telephone records which had been used by other accused as well.

¶334

The facts being so, it will be useful to analyse the said facts to

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understand its importance, and the nature of evidence the prosecution intends to prove. According to the prosecution, the 3^rd accused was in close contact with the first accused and it was through the third accused that accused 6 and 7 had arranged the commission of the crime.

¶338

According to the prosecution, the mobile used by the first accused was having the number 9349283659. The application and identification proof submitted by the subscriber Sri.Surendran (PW63) is marked as Ext.P183. Prosecution has a case that the aforesaid mobile phone was sold by PW63 Surendran to the first accused. PW63 Surendran turned hostile to the prosecution. He was cross examined by the prosecution. He deposed that he used the mobile phone for about 4- 5 months. He admitted having given his photo identity card for acquiring the mobile number. However, he further stated that his father-in-law had taken away his mobile phone when they had a quarrel and the money paid for taking mobile connection was paid by his father-in-law. He knew that the mobile phone was not in the possession of his father-in-law. He does not know whether it was lost or sold. In further cross examination, he identifies the signature in a photocopy of sale document dated 22/12/2003 (Ext.P76) regarding transfer of mobile phone with connection No.0484 3283659. However, he stated that he had not given it to the police and he was asked to sign in a white paper. He further admitted that he had gone to Alleppey Crime Detachment office on 8/10/2005 at 10.30 am and signed the mahazar. He admitted his signature in the

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mahazar which is marked as Ext.P75. He also admitted the signature in the photocopy of sale document Ext.P76. Exts.P74(a) is the portion of 161 statement of PW63 given to the police in which he stated that during the previous month of kumbha , he saw Unni at Vattakkeri temple festival. At that time, he was having a mobile which he had sold. Similarly, Ext.P74(b) is also a statement u/s 161 wherein he states that his mobile bearing no.0484 3283659 was sold by him to Unni belonging to Palluruthy for `500/- and the said mobile is with the first accused (pointing to the first accused) and that he had sold the mobile to Unni. He also stated that the phone which was shown to him before Court and the phone which he had was of the same model. According to the prosecution, PW63 had identified the first accused and the first accused had purchased the mobile phone belonging to PW63 and it had the number 9349283659. Though the learned counsel for accused 1 and 2 had contended that there is no evidence to prove that first accused was using mobile number 9349283659, the fact remains that the said mobile was recovered from him at the time of his arrest. Despite the earnest efforts made by learned counsel for accused to contend that the arrest was not on the date specified by the police, we cannot agree with the said argument. PW15's evidence which had been relied upon by the learned counsel may not be of much use. PW15 was only stating that he had seen the accused five days after the accident in the police station. At the relevant time, whether they were in custody of the police or the

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police had arrested them is not known. Even otherwise, the five days mentioned by PW15 could be only an approximate number of days and may not be accurate. Therefore, we are of the considered view that the arrest of accused 1 and 2 had taken place on 29/7/2005. That apart, after the arrest, when body search was conducted, the mobile phone was recovered from the first accused. It is therefore not open for the 1^st accused to contend that he was not in possession of the mobile phone at the relevant time. Of course, the evidence adduced by the service provider indicates that the mobile phone was purchased by PW63 who has turned hostile. When the mobile phone is recovered from the accused, it is for him to explain under what circumstances the mobile phone came into his possession. Taking into consideration all these facts, we are of the view that the said mobile phone belongs to the first accused.

¶345

In regard to the ownership of mobile phone belonging to the third accused, it is clear from the evidence of PW112 that the said mobile phone was taken in the name of his mother with specific instruction that it is to be used by the third accused. He deposed that on 20.7.2005 from 7.51 am to 1.37 p.m., the subscriber received 8 calls from a number 9447648404. The said mobile number is in the name of Sarojini, mother of the 3^rd accused as evident from Ext.P185 and the deposition of PW112. Sarojini had issued a letter Ext.P185(a) requesting the mobile agency to provide the sim to the third accused. Therefore, prosecution has proved

¶346

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that, A3 was using mobile bearing No.9447648404. Though the said mobile phone is not traceable, it is in evidence that the said mobile phone was used by the third accused.

¶349

According to the prosecution, accused No.12 was using the mobile No.9447797554 and PW103 was using the mobile No.9447764556. We do not think it necessary for us to consider the ownership of the other mobile phones as there is not much material to indicate about the telephone details regarding the calls between members of a business group. Even if they have called each other, it can only be considered as calls generated for business purpose and no inference can be made for the purpose of dragging them into a conspiracy purely based on CDRs. Therefore, the ownership of other mobile phones are not at all material in considering the facts involved in the present case.

¶350

PW111, the legal officer of the Reliance Infocom, Kerala Circle produced Ext.P182, the call detail records of the A1's phone from 2/7/2005 to 22/7/2005. It contains the details of phone calls received by the said subscriber. The call details Ext.P182 would show that from 2/7/2005 until 20/7/2005, the first accused received several calls from the third accused.

¶351

From Ext.P182 CDR of the first accused, it is evident that the third accused had called him thrice on 2/7/2005, twice on 3/7/2005, five times on 4/7/2005, twice on 5/7/2005, twice on 6/7/2005, thrice on

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8/7/2005, twice on 9/7/2005, once on 12/7/2005, four times on 13/7/2005, five times on 15/7/2005, ten times on 16/7/2005 , once on 17/7/2005, 17 times on 18/7/2005, four times on 19/7/2005 and eight times on 20/7/2005. On 20/7/2005 itself, calls were made at 7.51 am, 7.56 am, 8.58 am, 1.19 p.m, 1.27 p.m, 1.31 p.m, 1.32 pm and 1.37 p.m. During the questioning of first accused, he denied having contact with third accused. When he was asked regarding the telephone calls on 20/7/2005 which generated from the number 9447648404, his answer was that the witness was lying on instructions from Dy.SP. To the next question, he had denied all the calls which generated from the number ending 8404. Ext.P192 is the CDRs relating to the mobile phone used by third accused ending with number 8404. It starts from 1/7/2005 to 20/7/2005. This document also shows the location. The calls which generated from A3 to A1's number are also matching. Coming to the date 20/7/2005, it could be seen that the mobile phone was used at Cherai at 7.44 a.m, at 9.03, it was at Paravur, 9.10 at Varapuzha, 9.26 near Amritha Hospital, 10.01 Nettoor, 10.13 Aroor, 10.50 at Cherthala, 12.12 Kuthiyathodu, 12.25 again at Aroor 13.01 at Kuthiyathodu, 13.03 at Pattanakkad, 13.08 at Cherthala, and from 13.19 to 13.37 when consecutive calls were made to the number of A1, the location was shown as 8403, but the name of the place is not shown in the document. At 13.41, it is at SL Puram, 13.46 again at SL Puram and at 3.41, it is stated to be at Kallarkode. From the aforesaid document, it is rather

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clear about the numerous calls that A3 was making on the said day, out of which 8 calls were made to the first accused. In the 313 statement of third accused, he even denied that his mother had given an application as Ext.P185 to obtain the mobile connection number ending with 8404. He also denied that an application was given as Ext.P185(a) to provide the sim card in his name. To a pointed question that on 20/7/2005 between 7.15 am and 1.37 p.m he had made eight calls from his mobile number to the number ending 3659 (number of first accused), his answer was that it was edited and forged. Yet another question was with reference to the location of the calls made between 1.27 p.m and 1.37 which was generated from his number to the third accused, during which time the calls were made from Maithara, 3^rd Sector tower area, which according to him was not correct. Therefore, close nexus between third accused and first accused is evident from the CDRs aforesaid. 83. Prosecution alleges that mobile number 9447178271 was being used by the 4^th accused. PW112 had produced the application and identity proof of Abhilash N.A as Ext.P186 in relation to mobile No.9447764556. He had also produced the application and identity proof of Gireesh Kumar P.B. as Ext.P187 relating to mobile connection No.9447178271. Similarly the application and identity proof of Unnikrishnan is marked as Ext.P188 which relates to mobile connection No.9447716342. The application and identification cards in relation to mobile No.9447797554 is marked as Ext.P189.

¶358

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¶360

According to the prosecution, PW56 had sold the mobile phone with number 9447178271 to the 4^th accused for an amount of `3,500/-. Carbon copy of a sale deed dated 15/1/2005 is marked as Ext.P69. PW56 admitted his signature in mahazar dated 10/10/2005 by which the sale deed was recovered by the Dy.SP, Crime Detachment. Though PW56 denied having purchased the said mobile phone, evidence had been adduced by PW112 by producing the application with identify proof consisting of the attested copy of electoral identity card and signed terms and conditions by PW56, which is marked as Ext.P187. Ext.P193 are the call details of the said number. Ext.P193 contains call details from 1/7/2005 to 20/7/2005. This also contains the location from where the mobiles were used. One peculiarity in this CDR is that the time at which the mobile phones were used is not in serial order, whereas it is jumbled. Learned counsel for the accused tried to emphasise that the said fact itself would show that the CDR was manipulated. However, we do not think so. When printouts are taken in excel format, it comes in different formats and the formats can be changed, but the entries cannot be manipulated. As on 20/7/2005, the location of the said number could be seen at 8.15 Cherai, 9.02 Parur, 10.06 Nettoor, 10.43 Cherthala, 11.06 Cherthala, 12.47 Aroor, 12,58 Kuthiyathode, 13.41 ie 1.41 pm SL Puram, 1.44 pm SL Puram, 6.30 p.m Kuthiayathode, 2.58 p.m Valappad. Evidence would show that the A4 was also at the same route through which A3 was proceeding on the said day.

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¶363

On an evaluation of the CDR's and the evidence let in by the prosecution through the service providers, the only fact that is proved is the constant communication between the 1^st and 3^rd accused, between 1^st July, 2005 and 20^th July, 2005, particularly on 20^th July, 2005 in or about the time of accident, there were frequent calls from A3 to A1, and there is evidence that A3 and A4 was in or near the place of accident.

¶364

Though it is contended by learned Public Prosecutor that the timing of the calls between A1 and A3, tallies with the calls generated from the mobile phone taken by PW103, which was in fact used by accused No.6, we do not intend to presume the involvement of accused 6 and 7 merely because of the fact that they were contacting A3. Third accused according to the prosecution is the Manager of Himalaya Offset Press and is an employee of Himalaya Group, and we do not find anything wrong in the Directors of the company or any other employee calling A3 or A3 calling them.

¶365

That apart, the prosecution tries to establish the conspiracy hatched by accused 6 and 7 through accused 3 and 4 by placing reliance upon the subsequent conduct of the accused, meeting of the accuseds' together in hotels at various places, their abscondence etc.

¶366

OTHER CIRCUMSTANCES

¶367

PW51 deposed that he has seen the first accused along with accused 3, 4 and 5 on 21/7/2005. He is a waiter trainee in a hotel at Amalanagar, Thrissur by name Krishna Holiday Village. He used to supply

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food for those who orders food from their rooms. He was on duty on 21/7/2005. He had given food to the persons residing in room nos. 111 and 112. There were four persons each in those rooms. He can identify those persons. He had identified four persons. Three of them are in the box. He identified accused 1, 3 and 4. According to him, a person who was there in the room was not in the box. They stayed there for a day and after one week, police brought one person. After another week, he saw another person also.

¶371

PW73 is a trainee waiter of Krishna Holiday Village. He joined the hotel on 1^st April, 2005. His duty is from 11 am to 11 pm. He was on duty on 26/7/2005. He had provided room service in room nos. 109 and 111. Two persons were occupying each of the rooms. He could identify those persons and three of them were in the box. He identified them as accused 3, 4 and 5. The other person who was with him was not in the box. They had come on 26/7/2005 by around 2 pm. Persons who resided in room No.111 vacated by around 7 p.m.

¶372

Having said so, we shall now consider the involvement of the other accused as separate arguments were raised by learned counsel appearing on either side. That apart, State has preferred an appeal inter alia contending that the sentence given to accused 2 to 4, 6 and 7 was not commensurate with the crime committed by them. Learned Public Prosecutor argued that they were part of the conspiracy and therefore, when death penalty had been imposed on the first accused, the other

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conspirators should be given the very same punishment or even such punishment that they should remain in prison for atleast a period of 30 years without any remission.

¶376

Adv. Sri.C.P.Udayabhanu appeared for 3^rd accused. According to the learned counsel, though the prosecution attempted to prove conspiracy at about 8 am in Cherai beach, two witnesses who had been examined to prove the said fact turned hostile. It is argued that it is the deceased Ramesh who was on loggerheads with the 3^rd accused and Ext.P113 is a complaint filed by A3 against the deceased and another person. It is further contended that the phone which is alleged to be used by the third accused is in the name of his mother Sarojini. The only other material is the factum of his stay at Krishna Holiday Village and Sivas Hotel, Ooti on 21/7/2005 and 29/7/2005 respectively. Learned counsel further argued that A3 is only an employee of one of the sister concerns of Himalaya Chits and the fact that he had called A6 and A7 are not at all relevant. Prosecution alleges that A3 had paid `50,000/- to A6 for which there is no evidence. The telephone call details cannot be relied upon for want of certification.

¶377

Sri.Adv.Rajit appeared on behalf of the 4^th accused. The 4^th accused is a Chief Field Officer of Himalaya. It is argued that there is absolutely no evidence against the 4^th accused apart from the fact that the 4^th accused happened to travel along with accused 5 and 6. It is argued that there is absolutely no evidence to implicate 4^th accused

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other than the fact that he was seen along with accused 3, 5 and 12 on 23/7/2005 and along with accused 3, 6 and 7 on 29/7/2005 in different hotels. He was arrested along with 5^th accused on 20/8/2005.

¶381

Learned counsel Sri.J.Jose appearing for accused No.6 argued that there is absolutely no material to implicate the 6^th accused in the conspiracy. Court below committed serious error in relying upon the evidence of PW9 to infer enmity and even going to the extent of treating the apprehension expressed by Ramesh to his wife PW9, as a statement under section 32(1) of the Evidence Act. He relied upon the judgment in Pakala Narayana Swami v. The King-Emperor (AIR 1939 Privy Council 47). In this case, the Privy Council was considering a question regarding the admissibility of a statement made by an accused person to a police officer during his investigation and recorded u/s 162 of the Criminal Procedure Code. There was a divergent view in certain earlier judgments which were addressed by the learned counsel. The facts of the case would disclose that the body of a deceased man was found in a steel trunk in a third class compartment at Puri. The body had been cut into seven portions and the medical evidence revealed that the man had been murdered. The body was identified after a few days. The prosecution produced several letters written by wife of accused to the deceased. On 20^th March 1937, a few days before the body was found, the deceased received a letter, the contents of which were not proved. But it was an invitation for him to meet the accused's wife at

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Berhampore. Wife of the deceased said that on that day her husband showed her a letter and said that he was going to Berhampore since the accused's wife had written to him and asked him to go and receive the payment which was due. It was the prosecution case that by the time the wife of the accused had borrowed substantial amounts from the deceased. That evidence was objected to, but it was admitted as falling under the provisions of Section 32 (1) of the Indian Evidence Act. The admission of the said evidence was one of the grounds of attack by the accused. The deceased left his house on 21^st March in time to catch the train for Berhampore and on 23^rd March, his body was found in the train at Puri. It was held by the Privy Council as under:-

¶385

“ A variety of questions has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, and that the "circumstances" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction : general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the

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transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction" is a phrase, no doubt, that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant; facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence though, as for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition for the admissibility of the evidence is that "the cause of the declarant's death comes into question". In the present case the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on March 21, or March 22, and his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on March 20 or 21 that he was setting out to the place where the accused lived, and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted.”

¶389

Learned counsel also argued that, Ramesh had several enemies and pinpointing Directors of Himalaya Group was totally unjustified and lacked evidentiary support.

¶390

Adv. Sri.P,Sanjay appearing for accused 7 and 8, while reiterating the arguments of the 7^th accused contended that the materials necessary for inferring conspiracy has not been established in

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the case. PW9's testimony against him is only hearsay and she has no case that A7 had called her at any point of time. 8^th accused had been charged with harbouring. He is the brother of the 7^th accused and they have surrendered themselves before the police. They were residing in the property owned by them, which will not amount to harbouring. He also placed reliance on the judgment in Kehar Singh and Others v. State (Delhi Administration) [(1988) 3 SCC 609], wherein it is held as under:-

¶394

“ Coleridge, J., while summing up the case to jury in Regina v. Murphy (173 Eng. Reports 508) pertinently states:

¶395

“I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, ‘Had they this common design, and did they pursue it by these common means — the design being unlawful?’ ”

¶396

It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable.

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Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.

¶400

Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition:

¶401

“Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties ‘actually came together and agreed in terms’ to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was ‘a tacit understanding between conspirators as to what should be done’.” I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an

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appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard”.

¶405

Another judgment which is relied upon is Sanjiv Kumar v. State of H.P [(1999) 2 SCC 288]. Paragraph 19 reads thus:-

¶406

“19. Coming to the question of charge under Section 120-B I.P.C. to establish a conspiracy between accused Sanjiv Kumar and accused Kamlesh, apart from the relationship, namely, Sanjiv was the nephew of Kamlesh, the prosecution evidence is totally silent to establish a criminal conspiracy between them for committing the murder of deceased Rajesh. The offence under Section 120-B is an agreement between the parties to do a particular act. There is not an iota of material to establish the alleged agreement between accused Sanjiv Kumar and accused Kamlesh. In the absence of such evidence, the mere fact that Sanjiv Kumar was the nephew of Kamlesh cannot be held to be sufficient to lead to an inference of conspiracy. Association of Sanjiv Kumar with Kamlesh being a relation is not enough to establish that both of them entered into a conspiracy to kill deceased Rajesh. In the aforesaid premises, the learned counsel appearing for the respondent-State was right in his submission that the charge of conspiracy cannot be sustained. We, accordingly, set aside the conviction of accused Sanjiv Kumar as well as of accused Kamlesh under Sections 302/120-B of the Indian Penal Code.”

¶407

Eighth accused, according to learned counsel is the brother of the 7^th accused. They were staying with A9, who was acquitted. A8 and A9 stands in the same position. The house in which they were staying was at Pothamada, Pollachi Taluk and it belonged to PW104, who had agreed to sell the property to A8 as per Ext.P174. It is argued that evidence in the case discloses the fact that all their 42 branches were

¶408

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rampaged and they had to flee. He placed reliance on the judgment in Sujith v. State of Kerala (2007 (4) KLT 487) to contend that the ingredients of offence of harbouring against the accused is not made out.

¶411

Accused 5 and 12 appeared through Adv.K.K.Dheerendrakrishnan. He also placed reliance upon the judgment in Sujith v. State of Kerala (2007 (4) KLT 487) to contend that the offence of harbouring was not made out.

¶412

It is the common contention of the accused that PW118 the officer who conducted investigation was having an axe to grind against the accused and he had deliberately roped the accused to seek vengeance against them. This argument is also fallacious. The contention of the learned counsel for appellants is that PW118 was working in the local police station at Cherai and was helping Ramesh. This prompted them to file a complaint before the High Court and when the matter came up before High Court, PW118 was already transferred and therefore no orders were passed. The question to be considered is not whether PW118 had an axe to grudge against the accused, whereas, the question is whether the evidence produced before Court can be accepted in order to find the guilt of the accused. Further, there is no material to indicate that PW118 was biased in any fashion while conducting investigation into the case.

¶413

Yet another contention urged by the learned counsel appearing

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for accused 6 and 7 is that they were roped in as accused at the instance of PW116, in connivance with Adv.Abdul Hakkeem who formed an action council against them and had given wide publicity to their involvement in the crime. It is true that an action council had been formed under the leadership of Adv.Abdul Hakeem. He had also filed a case implicating accused 3, 6, 7 and 8 which was later on referred after investigation. In this case our endeavour is to see whether there is legal evidence to implicate the accused, rather than acting on the public opinion in the matter. There is no material whatsoever to indicate that the investigating officers were acting to the tune of the aforesaid Abdul Hakeem. In the absence of any such material, the said contention has no legal support and is only to be rejected.

¶417

INVOLVEMENT OF ACCUSED 3 TO 8 AND 12

¶418

As far as the involvement of 3^rd accused is concerned, prosecution story is that accused 6 and 7 arranged the 3^rd accused and the 4^th accused to engage accused 1 and 2 to commit the crime. To prove the involvement of 3^rd accused, prosecution mainly relies upon a few facts. The 3^rd accused is an employee of Himalaya Offset Press and he was not attending office for about a month prior to the incident. He was only drawing a salary of `4,500/- per month. However, he purchases a Qualis car on 13/7/2005. The bank account details of the 3^rd accused would show that he is not possessed of sufficient funds for acquiring the

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vehicle. His accounts have been marked as Ext.P134 and is seized as per Ext.P133 mahazar. His accounts would show that there is a credit entry of 2,25,000/- immediately before purchase of the car. Prosecution however examined PW99 who deposed that he was given 1,50,000/- by way of a cheque and the account also show that 75,000/- was also paid by way of a cheque to another person. The person who had sold the vehicle to the 3rd accused has been examined as PW41 who deposed that for transferring the vehicle, 3rd accused had paid him 3 lakhs in cash. Evidence further indicates that subsequently 3^rd accused had taken a hire purchase for the said vehicle. According to the prosecution, this vehicle was purchased to ensure that Ramesh would not know that it belongs to Himalaya Group.

¶422

Yet another fact which has been highlighted by the prosecution to implicate the 3^rd accused is the CDRs of his mobile phone number which would show that he was in regular contact with the first accused from 2/7/2005 onwards till 20/7/2005 and he was in continuous contact with the first accused on 20/7/2005 immediately before the accident. After the accident, first accused was seen with the third accused and fourth accused in a toddy shop at Poimana. Thereafter, the first accused was seen with the third and fourth accused on 21/7/2005 at Krishna Inn. Prosecution also has a case that A6 had withdrawn more than `50,000/from his account through ATM and handed over to the third accused to be paid to the first accused for purchasing the lorry and it is with the said

¶423

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¶425

amount that the first accused purchased the lorry from PW14.

¶426

Another important factor is A3's presence at Krishna Holiday Village Inn along with A1. Further, A3 was also absconding and moving from one place to another to avoid arrest by the police.

¶427

The prosecution therefore proved the following facts:-

¶428

(i) That from the call records Ext.P182 and 192, it is evident that 3^rd accused was in regular contact with the first accused from 2^nd July 2005 onwards.

¶429

(ii) Immediately before the accident on 20/7/2005, the third accused was contacting the first accused at regular intervals.

¶430

(iii) PW51 a trainee of Krishna Holiday Village Inn, saw A1 along with A3 and A4, on 21.7.2005, after the incident.

¶431

We have already come to the conclusion that first accused was responsible for the accident and it was a deliberate hit. Accused 3 and 4 were seen along with the first accused on the very next day at Krishna Holiday Village Inn. The phone calls between the 1^st and 3^rd accused in July, 2005, coupled with the constant calls between them on 20^th July, 2005, coupled with the fact that A1 and A3 were seen together on 21.7.2005, proves the strong nexus between them. Otherwise, there is no reason why the first accused is seen along with the third accused and there is no valid explanation for the same in the 313 statement. It is settled law that conspiracies are secretly planned and it is difficult for the prosecution to produce direct evidence. The Apex Court in

¶432

Crl.Appeal No.1041/2008 & conn.cases

¶433

¶434

E.K.Chandrasenan v. State of Kerala (1995 Crl.Law Journal 1445)

¶435

(SC) while rejecting the plea of the accused that the direct evidence of conspiracy was not available, held that, in such cases, it is only circumstantial evidence which helps in proving the conspiracy. In other words, conspiracy is to be inferred from the presence of proved circumstances pointing out the one and only hypothesis of the existence of a conspiracy to commit any unlawful act or illegal act. In the case on hand, the intention to commit the crime of murder had arisen out of an enmity between the two groups. The circumstance by which 6^th accused had informed PW9 that he is going to do away with Ramesh and within a week Ramesh is murdered itself is a strong circumstance to indicate that Ramesh would be murdered. Ramesh also feared that he will be done away with. The fact that assassins were used to carry out the object through the 3^rd accused proves a clear instance of conspiracy. From the materials now placed on record, the clear nexus between A3 and A1 is evident and A3 cannot therefore wriggle out of the finding of guilt by the trial Court.

¶436

As far as the 4^th accused is concerned, he is a person working for Himalaya Group of Companies. He is the Chief Field Officer. According to the prosecution, accused 3 and 4 were engaged by accused 6 and 7 to arrange the murder by an accident. We have already come to the conclusion that the 3^rd accused was involved in the conspiracy and had made arrangements to commit the murder. The prosecution proceeds on

¶437

Crl.Appeal No.1041/2008 & conn.cases

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¶439

the basis that 4^th accused was absconding along with the other accused and he along with the third accused had arranged the crime. The 4^th accused was seen along with the 3^rd accused in various hotels after the incident for which there is enough proof. His call records had been produced as Ext.P193. He submits that there was only one call from the 4^th accused to the first accused and that was on 4/7/2005, which by itself is not enough to implicate the fourth accused in a conspiracy to commit murder. It is submitted that his presence along with the 3^rd accused cannot be inferred from any of the circumstances. Learned counsel points out that merely for the reason that A4 was absconding, by itself is not a circumstance to prove his involvement in the crime. He also placed reliance on the judgment in Rahman v. State of Uttar Pradesh [Laws (SC) 1971 8 1] wherein the Apex Court held so. It is true that merely for the reason that the 4^th accused was absconding does not make him as a person involved in the crime. According to the prosecution, accused 3 and 4 were travelling together on 20/7/2005 and the 3^rd accused was calling the first accused. Therefore, according to the prosecution 4^th accused was very much participating in the conspiracy and he along with 3^rd accused was responsible for arranging the 1^st accused to commit the crime. It is trite that when an act is done in secrecy, it may not be possible for the prosecution to establish the entire circumstances. This is a case where the investigating officer has examined more than 100 witnesses to prove the prosecution case. But still it is seen that majority

¶440

Crl.Appeal No.1041/2008 & conn.cases

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¶442

of the witnesses have turned hostile to the prosecution. According to the learned Public Prosecutor, the accused were responsible for ensuring that the witnesses turns hostile as a result of which the prosecution could not establish the case in the manner in which they investigated. Still it is contended that available evidence would clearly show the involvement of 4^th accused in the crime. But, we do not find any material to connect the 4^th accused to the crime. What was his actual role in the crime is not evident from the materials placed on record. There is no evidence that he was travelling along with A3 on 20.7.2005 and it is with his connivance that A1 and A2 were arranged to commit the crime. Therefore A4 has to be given the benefit of doubt.

¶443

As far as 6^th accused is concerned, the question is whether the conspiracy alleged by the prosecution in order to commit murder has been proved or not. If there are sufficient materials to prove conspiracy among the accused, the fact that Ramesh was having enmity with others may not be relevant. Evidence of PW9 clearly indicates the motive and intention of A6 to commit murder. She, in her evidence had clearly stated that A6 had threatened her and informed her that Ramesh will be done away with. It is after a week from the said incident that Ramesh was murdered. Learned counsel argues that there is no proof that 6^th accused had telephoned PW9, as his voice could not be identified by her, as even according to her she was hearing the voice of A6 over phone for the first time. But she has categorically stated, that the caller identified

¶444

Crl.Appeal No.1041/2008 & conn.cases

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¶446

himself as A6, and she even narrated what he has actually spoken. Having gone through her evidence, and the attending circumstances, we do not think that there is any reason to doubt her testimony. Of course the 6^th accused had taken pains to ensure that he does not get involved directly with the crime for which he had arranged 3^rd accused to deal with the first accused. Therefore involvement of the 6^th accused as the chief conspirator is proved by his own conduct, as spoken to by PW9. It is evident from the deposition of PW9, that A6 had the motive and intention to commit murder of Ramesh, and his criminal mind could not resist the temptation to inform PW9 in advance, that her husband would be killed. His association with A3 is proved by the fact that, A3 is an employee of Himalaya Offset Printers, and there is evidence to prove receipt of salary by A3. The fact that A3 did not have the finacial capability to purchase a Qualis car is proved from his bank statement. A3's close association with A1 during July, 2005, clearly proves the agreement between them. The following when read together, i.e, the enmity between Himalaya and Ramesh, A6 informing PW9 that Ramesh will be killed, A3 being an employee of Himalaya, the close contact A3 had with A1, commission of make believe accident, would, without any iota of doubt, establishes the conspiracy to commit murder, and A1 and A2 ensured that the job is done.

¶447

But it is relevant to note that there is no such evidence against the 7^th accused except for the fact that he was absconding. Learned counsel for the 7^th accused submits that the 7^th accused had to abscond

¶448

Crl.Appeal No.1041/2008 & conn.cases

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¶450

and move with his family in view of the fact that people in the locality were in an agitated mood and there was large scale protest against them at the residential place as well as at their branches and the police was finding it difficult to control the mob. A7, of course is a partner of A6 in their business. Learned Public Prosecutor vehemently argued that the statement of PW9, that Ramesh had told her that he will be killed by the owners of Himalaya Group either in a bomb blast or in an accident amounts to a statement admissible in evidence u/s 32(1) of the Evidence Act. According to her, the said statement forms part of the “transactions relating to the death” of Ramesh.

¶451

S.32(1) reads as under:-

¶452

“32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. —Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—

¶453

(1) When it relates to cause of death. —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question”.

¶454

Crl.Appeal No.1041/2008 & conn.cases

¶455

¶456

There is no dispute about the fact that PW9's information was directly from Ramesh. He apprehended death. His apprehension was that members of Himalaya Group will commit his murder. He also apprehended that his murder will be either by way of a bomb blast or an accident. In Pakala Narayana Swami (supra), which has been followed in a long line of judgments, it has been held that if a statement should be treated as one under section 32(1), the same should relate to the transactions leading to the death of the deceased person. In Patel Hiralal Joitaram v. State of Gujarat [(2002) 1 SCC 22], the Apex Court held that “there need not necessarily be a direct nexus between “circumstances” and “death”. It is enough if the words spoken by the deceased refer to any circumstance which has connection with any of the transactions which ended up in the victim's death. The words “statement as to any of the circumstances” are by themselves capable of expanding the width and contours of the scope of admissibility. When the word “circumstances” is linked to transaction which resulted in his death”, the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of this subsection. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all, the endeavour should be how to include the statement of a dead person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the Court has to consider how far it is reliable. Once the test of reliability is found positive, the Court has to consider the utility of that statement in the particular

¶457

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case.”

¶460

108. In Sharad Birdhichand Sarda v. State of Maharashtra,

¶461

[(1984) 4 SCC 116] a three Judge bench of the Apex Court held as under:

¶462

“21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:

¶463

(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

¶464

Crl.Appeal No.1041/2008 & conn.cases

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(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

¶467

(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

¶468

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

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Crl.Appeal No.1041/2008 & conn.cases

¶470

¶471

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”

¶472

From the evidence of PW9, we can only infer that Ramesh had an apprehension that he will be murdered by Himalaya people, which cannot apparently be treated as a statement coming u/s 32(1). At best prosecution can rely upon such statement only to prove the enmity with them and the fear he had. Court below was therefore not justified in treating the said statement as one coming u/s 32(1). The Court below further observes that even if the evidence of PW9 relating to the statement made by Ramesh to her does not strictly come within the purview of S.32(1), it could be relevant u/s 11 of the Evidence Act. She also placed reliance on the Full bench judgment in Narayanan v. State of Kerala [1992 (1) KLT 500 (FB)] wherein it was held that S.6 and 11 of the Evidence Act are not controlled by S.32. Even if a statement will not come within the purview of S.32, it would be relevant u/s 11 of the Evidence Act. Court below observed that the statement made by the deceased had a more proximate relation with the circumstances leading to the death and therefore the statement made by deceased Ramesh to PW9 is relevant and admissible in the case to prove the involvement of accused 6 and 7 in the alleged commission of murder.

¶473

S. 11 reads as under:-

¶474

Crl.Appeal No.1041/2008 & conn.cases

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¶476

“11. When facts not otherwise relevant become relevant.— Facts not otherwise relevant are relevant—

¶477

(1) They are inconsistent with any fact in issue or relevant fact;

¶478

(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.”.

¶479

In fact, the aforesaid provision clearly indicates an altogether different

¶480

contingency. Even in Narayanan (supra), the Full Bench after observing that S.11 is not controlled by S.32, observed that the statement can as well be brought within the umbrella of S.14 and on facts it was held that “Hence in our view, PW1's evidence that deceased told her that he would come back for lunch cannot be excluded from evidence under law.” In our view, the said statement of Ramesh by which he had expressed an apprehension regarding his fear would only prove the fear Ramesh as well as PW9 entertained during the relevant time. Therefore, the finding of the Court below that accused 6 and 7 can be roped in to have conspired to do away with Ramesh, does not gain support from either of the aforesaid provisions. That apart, in this case the actual crime is committed by hired assassins at the instance of another person. Accused 6 and 7 can be ropped in only if conspiracy is proved. We have already held the role of A6 in the crime and the material on which, we have found him guilty. As far as A7 is concerned, the prosecution could not establish such an involvement beyond reasonable doubt, and merely for the reason that A6 and A7 are partners, by itself may not be enough to

¶481

Crl.Appeal No.1041/2008 & conn.cases

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implicate A7, with conspiracy to commit murder. Hence A7 is to be acquitted giving him the benefit of doubt.

¶484

Now coming to the other accused viz., 5, 8 and 12, they were convicted on the allegation that they harboured the accused. “Harbour” is defined u/s 52A of the Indian Penal Code as under:-

¶485

“ 52A. “Harbour ”.—Except in section 157, and in section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word “harbour” includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means or conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension.”

¶486

S.212 reads as under:

¶487

212. Harbouring offender.—Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment;

¶488

if a capital offence .—shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine;

¶489

if punishable with imprisonment for life, or with imprisonment .—and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

¶490

and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.

¶491

“Offence” in this section includes any act committed at any

¶492

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place out of 3[India], which, if committed in 3[India], would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in [India].]

¶495

(Exception)—This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender.”

¶496

It is settled law that for convicting a person u/s 212 of I.P.C., it

¶497

has to be established that an offence had been committed and there must be an offender. There must be harbouring or concealment of the offender by the accused or the accused knows or has reason to believe that such harboured or concealed person is the offender and there must be an intention on the part of the accused to screen the offender from legal punishment. As against the 5^th accused, the evidence is that he was staying with accused 3 and 4 in Hotel Krishna Holiday Village on 21/7/2005 and 26/7/2005. He was also staying with the 3^rd accused at Hotel Vyduriya where the room was taken in his name. He was also staying with the 4^th accused at Hotel Ambadi. The Sessions Court proceeded on the basis that since A5 was staying in various hotels with A3 and A4 knowing that they are offenders in the crime, it amounts to harbouring.

¶498

As far as 8^th accused is concerned, he is the brother of 7^th accused and they were living together with their wives along with the 9^th accused in a property which they agreed to purchase from PW104 at Pothamade in Tharmapathy. They were arrested by PW100 on 30/9/2005.

¶499

Crl.Appeal No.1041/2008 & conn.cases

¶500

¶501

A12 is the relative of A6. He was also an employee of Himalaya Company. Allegation against him is that he was staying along with A3 to A5 on 26/7/2005 in Hotel Krishna Holiday Village. He also stayed with accused 6 and 7 in the quarters of PW31. His vehicle was seen parked in hotel Gateway, Coimbatore where accused 6 and 7 stayed on 28/7/2005. He was frequently contacting accused 3 and 4 over mobile phone. Sessions Court found that the same was enough to prove harbouring.

¶502

But, it is relevant to note that in the case on hand, in order to prove harbouring, the prosecution has to establish that accused 5, 8 and 12 knew that the other accused were offenders to the crime. As already found by us, the commission of the offence of murder was by accused 1 and 2 and the other accused had been roped in as conspirators and abettors to the crime. The conspiracy, even according to us, had been chartered out in high secrecy. Only a few people knew about it. Even from the evidence, we could not arrive at a conclusion that accused 4 and 7 were involved in the conspiracy. The 3^rd accused had been found guilty for being part of the conspiracy and for abetting the crime based on the conversation he had with the first accused as evident from the CDRs. The 6^th accused has been found to have conspired with the 3^rd accused when he made a statement to PW9 that Ramesh will be done away with. Therefore, when everything had been done in a discreet manner, it may not be possible for accused 5, 8 or 12 to know whether they were actual offenders or not. The police were on their look out and

¶503

Crl.Appeal No.1041/2008 & conn.cases

¶504

¶505

the accused camouflaged themselves on the ground that there was an agitation against them and all their branches had been rampaged.

¶506

In order to fasten liability to a person u/s 212 I.P.C., the prosecution will have to establish various ingredients including the fact that accused knew that the person whom they have harboured or concealed was an offender. But for the fact that the accused in the case had been roaming about and staying in one place or other by itself is not enough to prove that they were offenders and the intention of the person harbouring was to screen them from legal punishment.

¶507

The 5^th accused is only a driver and prosecution case is that he had taken room in his name and was travelling along with accused 3 and 4. A driver is always at the beck and call of the employer. He has to act according to the employer's wishes. Merely for the reason that he had stayed along with 3^rd accused in a hotel and a room was taken in his name by itself, does not mean that he was harbouring the offender. Further as on 21/7/2005 or 27/7/2005 when the 5^th accused was seen along with 3^rd accused, there was nothing to indicate that the 3^rd or 4^th accused had committed any crime at all. They were roped in as accused at a later stage by the police and therefore the said allegation of harbouring by 5^th accused is baseless and court below committed serious error in convicting him. His conviction is liable to be set aside and he is entitled for aquittal.

¶508

8^th accused is the brother of the 7^th accused. Since we have

¶509

Crl.Appeal No.1041/2008 & conn.cases

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¶511

already found that prosecution had failed to establish the case against the 7^th accused beyond any reasonable doubt, there is no reason why the 8^th accused should be convicted on the allegation that he was harbouring the 7^th accused.

¶512

As far as the 12^th accused is concerned he is a relative of the 6^th accused. The allegation is that 10^th accused had made arrangements for the residence of accused 6, 7 and 12 in the house of PW31. Apparently, they were residing in some other place and it was not the place of the 12^th accused. A person can be convicted for the offence of harbouring only if he conceals the said person with the intention of screening him from legal punishment. This man has travelled with accused 6 and 7 and the premises in which they resided does not belong to him. Therefore he cannot be made responsible for harbouring. Of course, supply of conveyance of means or assisting a person by means also would amount to harbouring. In this case, there is no other material to indicate that the 12^th accused had done anything to assist the accused. Therefore, we do not think that the 12^th accused can be convicted for the said offence.

¶513

D.S.R.NO.8/2009

¶514

The next question is with regard to the death sentence reference. Learned Public Prosecutor submitted that persons like the accused shall not be permitted to go scott free by just giving a punishment for life imprisonment. The 1^st accused being a hired assassin

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Crl.Appeal No.1041/2008 & conn.cases

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is a menace to the society. This is a unique case in which the murder has been committed by camouflaging the same as a regular accident. If the investigation did not proceed in the right direction, the case would have been treated as a regular accident. Therefore this is a fit case, in which the death penalty requires confirmation. This is one among the rarest of rare cases as enunciated by the judgments of the Apex Court which requires death penalty to be given. A business rivalry had led to a situation, wherein the rival in business, as well as two innocent persons died and one of them fatal injuries and the another minor injuries. The evidence adduced by the prosecution clearly indicates that he is a known gooda, whose name appears in the goonda list of police station. Such a person is a menace to the society and if they are let off after giving remissions, he will continue the very same act and will continue to be a menace to the Society. She also referred to various judgments relating to instances where death penalty had to be imposed.

¶518

A three Judge bench of the Apex Court in Machhi Singh v. State of Punjab [(1983) 3 SCC 470] held at paragraphs 32 to 38 as under:-

¶519

“32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the

¶520

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¶521

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shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of selfpreservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

¶523

I. Manner of commission of murder

¶524

33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

¶525

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

¶526

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

¶527

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

¶528

Crl.Appeal No.1041/2008 & conn.cases

¶529

¶530

II. Motive for commission of murder

¶531

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

¶532

III. Anti-social or socially abhorrent nature of the crime

¶533

35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

¶534

(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

¶535

IV. Magnitude of crime

¶536

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

¶537

V. Personality of victim of murder

¶538

37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a

¶539

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¶540

¶541

position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

¶542

38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:

¶543

“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

¶544

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

¶545

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

¶546

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

¶547

In yet another judgment in Sushil Sharma v. State (NCT of Delhi) [(2014) 4 SCC 317], it was held that there can be no hard and fast rule which the Court can follow while considering whether an accused should be awarded death sentence or not.

¶548

Crl.Appeal No.1041/2008 & conn.cases

¶549

¶550

Therefore, the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any criminal antecedents, whether there is any possibility for his reformation and rehabilitation or is it a case where reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are various factors which the criminal court will have to examine independently in each case. It is also observed that the decision to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of Court in the facts and attendant circumstances of each case.

¶551

In this case, 3 factors stand against the 1^st accused. One is that he had committed the act as a hired assassin. Secondly, the act was committed camouflaging it as an accident. Thirdly, along with the targeted person, two other innocent persons were killed. Taking into account these factors and the circumstances emanating from the case, we are of the view that this is a case which could be termed as an instance falling within the parameters laid down in Machhi Singh (supra). But each case has to be considered on its own facts. In this case prosecution could not establish the entire case as projected by them, probably on account of the fact that the accused could win over some of the witnesses. Several witnesses turned hostile to the prosecution. Therefore to arrive at the guilt of the accused, we had to make certain

¶552

Crl.Appeal No.1041/2008 & conn.cases

¶553

¶554

inferences based on proved facts. But still 1^st accused is not a person who should be given life imprisonment and thereafter, let off after giving remissions by the Government. 125. In Swamy Shraddananda (2) v. State of Karnataka, [(2008) 13 SCC 767], a three Judge Bench of the Supreme Court, held as under:

¶555

“ When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years’ imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years’ imprisonment would amount to no punishment at all.

¶556

93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends in penology.

¶557

Crl.Appeal No.1041/2008 & conn.cases

¶558

¶559

94. In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.”

¶560

The Constitution Bench of the Supreme Court in Union of

¶561

India v. Sriharan (2015 KHC 4778) held that life imprisonment in terms of Section 53 read with Section 45 I.P.C. means the entirety of life of the prisoner, unless it is curtailed by remissions validly granted under Section 432 Cr.P.C. or Article 72 or Article 161 of the Constitution. It was held that a special category of sentence, instead of death, can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and it can be put beyond the application of remission.

¶562

In the case on hand, despite the gruesome nature of accident, giving death penalty is not proper. He was suffering imprisonment since the date of arrest, without any parole. After considering the nature of crime, we are of the view that the sentence has to be converted to imprisonment for life, but with a condition that the accused should not be given any remission for a period of 25 years.

¶563

STATE APPEAL

¶564

Crl.Appeal No. 96/12 has been filed by the State seeking enhancement of sentence of accused Nos.2 to 4, 6 and 7. According to the learned Public Prosecutor, though not death penalty, the accused

¶565

Crl.Appeal No.1041/2008 & conn.cases

¶566

100

¶567

requires enhanced punishment as held in Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767]. From the evidence which we have discussed, 6^th accused is the king pin or master mind behind the whole episode. He along with his stooges and hired assassins has done away with a business rival, as well as two innocent persons. He also requires to suffer the very same sentence as that of the 1^st accused. Hence, appeal filed by the State is allowed to the extent of directing that the 6^th accused shall not be entitled for remission without suffering imprisonment for a minimum period of 25 (twenty five) years.

¶568

In the light of the above findings, we dispose of the Death Sentence Reference and Criminal Appeals as follows:-

¶569

(i) In Crl.Appeal No.2203/2008 and DSR No.8/2009, sentence of the appellant/ 1^st accused under Sections 120B, 109, 302, and of 307 I.P.C. is confirmed. We set aside the death sentence imposed on him and modify the sentence to imprisonment for life. We further direct that the accused shall not be given any remission till he completes imprisonment for a period of 25 (Twenty five) years. (ii) Crl.Appeal Nos. 1815/2008, 391/2010 and 1070/2008 filed by the appellants/ accused 2, 3 and 6 are dismissed, confirming their conviction and sentence under Section 120B, 109, 302, and of 307 I.P.C.

¶570

(iii) Crl.Appeal No.96/2012 filed by the State is partly allowed,

¶571

Crl.Appeal No.1041/2008 & conn.cases

¶572

101

¶573

directing that the 6^th accused shall not be given any remission till he completes imprisonment for a period of 25 (Twenty five) years.

¶574

(iv) Crl. Appeal Nos.743/2009, 1041/2008, 2548/2008 and 1044/2008 are allowed, setting aside the conviction and sentence of appellants/accused 4, 5, 7, 8 and 12. They are acquitted. Bail bond of accused 5, 8 and 12 are cancelled. Accused 4 and 7 shall be released forthwith, if their confinement is not required in any other case.

Sd/-

A.M.SHAFFIQUE

Judge

Sd/-

P.SOMARAJAN