High Court Kerala High Court

Raman vs State Of Kerala on 8 March, 2010

Kerala High Court
Raman vs State Of Kerala on 8 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1092 of 2006()


1. RAMAN, AGED 77, S/O.VELAYUDHAN, NANGOOR
                      ...  Petitioner
2. PUSHPAN, AGED 42, S/O.RAMAN,
3. VASU @ VASUDEVAN, AGED 35, S/O.RAMAN,
4. UNNIKRISHNAN, AGED 30 YEARS,

                        Vs



1. STATE OF KERALA,  THROUGH THE STATION
                       ...       Respondent

                For Petitioner  :SRI.S.RAJEEV

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :08/03/2010

 O R D E R
                 R.BASANT & M.C.HARI RANI, JJ
                      ------------------------------------
                Crl.A.Nos.1092 and 1738 of 2006
                      -------------------------------------
               Dated this the 8th day of March, 2010

                               JUDGMENT

BASANT, J.

i) Is there satisfactory evidence to prove that the

deceased suffered injuries at the hands of the 1st accused?

ii) Is there satisfactory evidence to prove that the 1st

accused had inflicted the stab injury on the deceased in

prosecution of a conspiracy between accused 1 to 5?

iii) Is the 1st accused or accused 2 to 5 entitled to the

benefit of doubt on the above questions?

iv) Is the plea of the learned counsel for the 1st accused

that the 1st accused is, at any rate, entitled to protection of the

first exception under Section 300 I.P.C acceptable?

2. These questions arise for consideration in these

appeals preferred by the 1st accused (Crl.A.No.1738/2006) and

accused 2 to 5 (Crl.A.No.1092/2006). The appellants/accused 1

to 5 have been found guilty, convicted and sentenced for

offences punishable under Section 120 B and 302 I.P.C. The 1st

Crl.A.Nos.1092 and 1738 of 2006 2

accused is convicted principally for the offence under Section

302 I.P.C; whereas accused 2 to 5 are found guilty, convicted

and sentenced under Section 120 B r/w 302 I.P.C.

3. They face a sentence of imprisonment for life. There

is a further direction that they must pay fine of Rs.50,000/- each.

Default sentence is also prescribed.

4. The prosecution alleged that accused 1 to 5, who are

the brother in law (A1), father (A2) and brothers (A3 to A5) of

the deceased, had animosity against the deceased. They

allegedly entered into a criminal conspiracy to murder the

deceased. In furtherance of the said conspiracy, the 1st accused

allegedly went to the house of the deceased. He allegedly took

objection against the conduct of the deceased in filing police

complaints against accused 2 to 5. There was an exchange of

words. The 1st accused got out from the house and walked

towards the gate in front. The deceased followed his brother in

law to light the torch and show him the way. Near the gate in

the courtyard of the house of the deceased, the 1st accused

allegedly stabbed the deceased with M.O1. The deceased was

shifted to the hospital immediately. He succumbed to the

injuries on the same night. The prosecution alleged that the 1st

Crl.A.Nos.1092 and 1738 of 2006 3

accused had committed the offence in furtherance of the

conspiracy which he had entered into with accused 2 to 5.

5. Investigation commenced with Ext.P1 F.I statement

lodged by PW1, the brother in law (wife’s brother) of the

deceased. On the basis of Ext.P1 F.I statement of PW1, Ext.P1(a)

F.I.R was registered by PW8. Investigation was completed and

final report was filed by PW22. Allegations were raised against

the 5 accused persons under Sections 447, 120 B and 302 I.P.C.

6. The case was duly committed to the Court of Session.

The learned Sessions Judge took cognizance of the offences.

Charges were framed against the appellants/accused 1 to 5.

They denied the charges levelled against them. Thereupon the

prosecution was directed to adduce evidence in support of its

case.

7. The prosecution examined PWs 1 to 25 and proved

Exts.P1 to P23. M.Os 1 to 3 were also marked on the side of the

prosecution.

8. In the course of cross examination and in the 313

examination, the accused persons took up a defence of total

denial. According to the 1st accused, he was not present

anywhere near the scene of the crime. He came to know of the

Crl.A.Nos.1092 and 1738 of 2006 4

death of the deceased – his brother in law, only on the next

morning when police personnel came to his house and took him

into custody. Accused 2 to 5 took up the stand that there was no

conspiracy whatsoever between them and accused 1.

9. The court below on an anxious consideration of all the

relevant inputs sailed to the conclusion that the overt act of the

1st accused against the deceased has been satisfactorily

established. Relying on various other circumstances, the court

below came to the conclusion that the 1st accused had committed

the offence only in prosecution of the criminal conspiracy

between accused 1 to 5. Accordingly the court below proceeded

to pass the impugned judgment. The charge under Section 447

I.P.C was held to be not proved.

10. Before us, the learned counsel for the 1st accused –

Sri.K.A.Srijith, the learned counsel for accused 2 to 5 –

Sri.N.K.Unnikrishnan and the learned Public Prosecutor –

Sri.K.J.Mohammed Anzar, have advanced their arguments.

11. An appellate judgment is, and must be read as, a

continuation of the judgment of the trial court. The trial court in

its judgment has narrated the oral and documentary evidence

adduced on the side of the prosecution as also the documents

Crl.A.Nos.1092 and 1738 of 2006 5

relied on by the defence. The defence did not adduce any oral

evidence. Reliance was placed on Exts.D1 to D14. We are not

hence in this judgment proceeding to re-narrate all the pieces of

oral and documentary evidence as also the other materials which

are available in this case. Suffice it to say that we have been

taken exhaustively through all such oral and documentary

evidences and other materials relied on by the rival contestants.

Wherever necessary, in the course of our discussions, we shall

specifically advert to the relevant pieces of evidence.

12. The learned counsel for the appellants assail the

impugned verdict of guilty, conviction and sentence on the

following grounds:

i) The court below grossly erred in coming to the

conclusion that the deceased had suffered injuries at the hands

of the 1st accused;

ii) At any rate, the court below ought to have conceded

the benefit of doubt to the 1st accused;

iii) The conviction of the 1st accused under Section 302

I.P.C is not in any view of the matter justified;

Crl.A.Nos.1092 and 1738 of 2006 6

iv) The court below must have held that there is no

semblance of evidence to drive home the charge of conspiracy

against the appellants/accused 2 to 5 in Crl.A.No.1092 of 2006.

13. Contentions (i) to (iii) are urged by the learned

counsel for the appellant/1st accused; whereas contention (iv) is

advanced by the learned counsel for the appellants/accused 2 to

5. We shall initially consider the contentions advanced by the

learned counsel for the appellant/1st accused.

14. The prosecution placed heavy reliance on the oral

evidence of PWs 2 and 3. They are the occurrence witnesses.

They are the wife and minor son of the deceased. They along

with the deceased were occupying the house. The 2nd accused,

as stated earlier, is the father of the deceased. Accused 3 to 5

are his brothers. 1st accused is the husband of the youngest

sister of the deceased. According to the prosecution, there was

motive for the commission of the offence. The prosecution

relied on the evidence of PW17 and other witnesses to prove its

case of motive against the deceased. The oral evidence of PWs 2

and 3 was sought to be supported by the version given in Ext.P1

by PW1, the brother of PW2 after collecting the relevant

information from PW2. The prosecution further relied on the

Crl.A.Nos.1092 and 1738 of 2006 7

oral evidence of neighbours, who had come to the scene and who

had played their part in taking the deceased to the hospital,

about the dying declaration made by the deceased that he had

suffered injuries at the hands of the 1st accused.

15. The crucial question is whether the oral evidence of

PWs 2 and 3 can be believed. PW2 is the wife of the deceased

and PW3, the son of the deceased. The incident had taken place

at about 8.45 p.m. In fact, we find no serious dispute on the

question that the deceased had suffered injuries at about 8.45

p.m on 03.07.2001 in the courtyard in front of the house of the

deceased. PWs 2 and 3, the wife and son of the deceased, claim

to be the eye witnesses. They are the most natural and probable

witnesses who could have been present at the scene of the

crime. They have narrated in detail the sequence of events

which culminated with the planting of the stab injury on the

abdomen of the deceased by the 1st accused with M.O1.

Inherently and on broad probabilities we find absolutely no

reason to approach the testimony of PWs 2 and 3, eye witnesses

with any amount of doubt, distrust or suspicion. The oral

evidence of PWs 2 and 3 show, and the totality of circumstances

convincingly point to the acceptability of that version, that

Crl.A.Nos.1092 and 1738 of 2006 8

primarily the disagreement was between the deceased son and

the 2nd accused father. The 1st accused and accused 3 to 5 were

even allegedly not having any motive directly against the

deceased. It was the 2nd accused who had grievance about the

deceased. The dispute was essentially and basically between the

2nd accused and the deceased. What we intend to note is that if,

as contended by, the appellant/the 1st accused, he were not there

at all and the deceased had suffered at the hands of some others,

the probability of PWs 2 and 3 raising false allegations, not

against the 2nd accused, but against the 1st accused, is not found

to be probable or reasonable at all. In fact, we find no reason

whatsoever to reject the oral evidence of PWs 2 and 3. Of

course, there was strain in the relationship between the

deceased on the one hand and accused 2 (and consequently

accused Nos.1 and 3 to 5) on the other. This strain in the

relationship between the 1st accused and PWs 2 and 3 does not,

at any rate, persuade us to approach the evidence of PWs 2 and

3 with any amount of distrust.

16. The incident had taken place at about 8.45 p.m. On

that very same night at 11.30 p.m, Ext.P1 F.I statement had been

lodged by PW1 before PW8 and Ext.P1(a) F.I.R was registered.

Crl.A.Nos.1092 and 1738 of 2006 9

The contents of Ext.P1 F.I statement given by PW1 (after

collecting information from PW2) convincingly afford assurance

to the court for the oral evidence of PWs 2 and 3. The nature of

the injury suffered by the deceased described in Ext.P6 wound

certificate by PW18 and later in Ext.P12 postmortem certificate

by PW23 also affords convincing assurance for the oral evidence

of PWs 2 and 3 about the manner in which the deceased had

suffered the injuries. Nay it will be apposite straight away to

note that even in Ext.P6 wound certificate, we find the version

narrated to PW18 recorded, which version was given by one of

the persons who accompanied the deceased to the hospital at

9.15 p.m, that the deceased has suffered the injuries at the

hands of Prakashan, his brother in law , ie. the 1st accused. This

earliest version given to the doctor recorded in Ext.P6 within a

period of 30 minutes from the time of occurrence affords the

final assurance to the court for the oral evidence of PWs 2 and 3.

17. We have also the oral evidence of PWs 5, 7 , 10 and 11

that the deceased, who was absolutely conscious while he was

shifted to the jeep from the scene of the crime had lost

consciousness at some point enroute to the hospital, had stated

to them that he had suffered the injuries at the hands of the 1st

Crl.A.Nos.1092 and 1738 of 2006 10

accused. This dying declaration made by the deceased also

supports the oral evidence of PWs 2 and 3.

18. The evidence of PW6 further indicates that the 1st

accused was available near the scene of the crime at about the

time of occurrence. This piece of evidence also supports the oral

evidence of PWs 2 and 3.

19. We do also have the evidence of recovery of M.Os1 to

3 under Exts.P4 and P5 mahazars after arrest of the 1st accused

on the basis of the confession statements given by him to PW25.

That evidence tendered by PW25 and the recovery of blood

stained M.Os 1 to 3 on the basis of such confession statement

does also go a long way to afford assurance for the version of

PWs 2 and 3 about the complicity of the 1st accused. The medical

evidence shows that the fatal injury could have been inflicted

with a weapon like M.O1. We find no reason to doubt or discard

this evidence of recovery. To sum up, we entertain not a scintilla

of doubt about the acceptability of the oral evidence of PWs 2

and 3 about the manner in which the deceased suffered the fatal

injury found on his person.

20. The learned counsel for the appellant/1st accused has

advanced various contentions. He submits that sufficient light

Crl.A.Nos.1092 and 1738 of 2006 11

may not have been available at the scene. The scene mahazar as

well as the evidence of witnesses clearly show the distance

between the house, where a kerosene lamp was placed, and the

scene of the crime to indicate convincingly that light from that

source must have been available at the scene of the crime.

There is also the evidence that the deceased was carrying a

torch light when he accompanied his brother in law/1st accused

up to the scene where he suffered the injuries. Light from that

source was available for PWs 2 and 3 to see the incident clearly.

21. The learned counsel for the 1st accused contends that

at any rate, the entire version has not been spoken before the

court by PWs 2 and 3 honestly. He submits that something

untoward must have taken place at the scene where the

deceased must have suffered the injuries. Going by the version

of PWs 2 and 3 a sudden attack at the scene of the crime by the

1st accused against the deceased appears to be highly

improbable, argues the counsel. The argument that it is

extremely improbable that the 1st accused who did not indulge in

any overt act till he reached the spot of occurrence, suddenly

and without any provocation attacked the deceased does not

appeal to us at all. We find no merit in this contention. We are

Crl.A.Nos.1092 and 1738 of 2006 12

unable to pin point and state whether the 1st accused may have

come to the scene of the crime with prior deliberation and was

waiting for an opportune moment to inflict the injury on the

deceased. At any rate, the available indications do not at all

suggest any overt act or provocation on the part of the deceased

to justify the conduct of the 1st accused either for claiming

absolution from liability or mitigation.

22. We thus come to the safe conclusion that the deceased

had suffered the injuries at the hands of the appellant/1st accused

with M.O1 at the scene of the crime identified in Ext.P3 scene

mahazar. That injury, the evidence of PWs 18 and 23 show, was

sufficient in the ordinary course of nature to cause death. There

cannot be any doubt that it was an intentional infliction of injury.

There is absolutely nothing to suggest that the intention was not

to inflict the injury that was actually suffered. The offence is

hence culpable homicide defined under Section 299 I.P.C and

the same gets exalted to the offence of murder defined under

Section 300 I.P.C by the play of the third clause of Section 300

I.P.C. Though a contention is raised that the offence can slide

back again to the offence defined under Section 299 I.P.C by the

play of the first exception to Section 300 I.P.C, we find absolutely

Crl.A.Nos.1092 and 1738 of 2006 13

no material which can help the 1st accused to bring the case back

to Section 299 I.P.C for seeking protection of the first exception

to Section 300 I.P.C.

23. We do, in these circumstances, came to the conclusion

that the verdict of guilty and conviction of the appellant/1st

accused under Section 302 I.P.C is absolutely justified. The

lesser alternative sentence permissible under law – a sentence of

imprisonment for life alone, has been imposed for that offence.

The sentence also, we are satisfied, does not warrant

interference.

24. Having so confirmed the complicity of the 1st accused

for the principal offence of murder under Section 302 I.P.C

committed by him directly, we are now proceeding to consider

the challenge against the verdict of guilty, conviction and

sentence imposed on appellants/accused under Section 120 B

r/w 302 I.P.C. We have heard the learned counsel for the

appellants/accused and the learned Public Prosecutor in detail

on this aspect.

25. At the very outset, we must note that direct evidence

about conspiracy cannot be expected by any prudent mind

ordinarily. A criminal conspiracy by its very nature is hatched in

Crl.A.Nos.1092 and 1738 of 2006 14

secrecy and absolute confidentiality. If the evidence of an

accomplice or approver is not secured, the prosecution will not

normally be able to place evidence before the court of such

conspiracy between the criminals. While it is true that such

direct evidence of conspiracy cannot be expected ordinarily, it is

equally trite that the court must be really careful and cautious

before swallowing the allegations of conspiracy against the

indictees. Satisfactory evidence of existence of conspiracy must

certainly be placed before court to persuade a court to come to

the conclusion that the offence of criminal conspiracy has been

committed.

26. We have been taken through the entire evidence. We

must say that we are totally dissatisfied about the evidence of

the alleged conspiracy. We therefore requested the learned

Public Prosecutor to explain to us the specific circumstances on

which the prosecution wants to rely, to drive home its contention

that the 1st accused had committed the overt act against the

deceased or must have committed the overt act against the

deceased not on his own but because of a conspiracy hatched by

accused 1 to 5.

Crl.A.Nos.1092 and 1738 of 2006 15

27. We cannot also afford to ignore the fact that the

dispute after all was between the deceased and the 2nd accused,

his father. His other brothers accused 3, 4 and 5 and his brother

in law, the first accused, were also taking sides with the father in

the dispute between the 2nd accused and the deceased. A

convenient and ready inference of conspiracy between such

close relatives cannot, according to us, be readily drawn in the

facts and circumstances of this case. After all, a father and 3

brothers are alleged to have conspired with a brother in law to

commit the murder of the deceased, who is their

son/brother/brother in law. We are in agreement with the

learned counsel for the appellants/accused 2 to 5 that evidence

will have to be carefully and cautiously evaluated before sailing

to a conclusion that the 1st accused must have acted in

furtherance of a conspiracy hatched by accused 1 to 5 to do away

with the deceased.

28. What are the circumstances? The learned Public

Prosecutor relies on the following circumstances to drive home

the case of criminal conspiracy advanced by the prosecution.

i) Motive – That there was strain in the relationship

between the deceased on the one hand and the 2nd accused, his

Crl.A.Nos.1092 and 1738 of 2006 16

father, on the other. Accused 1 and 3 to 5 were obviously taking

sides with the father, the 2nd accused.

ii) The 1st accused did not have any such compelling

motive against the deceased to perpetrate the overt act on his

own against the deceased. The 1st accused must have been

instigated by some others and those others could not have been

anyone other than accused 2 to 5.

iii) Accused 2 and 3 had told witnesses like PWs 2, 5 and

7 that arrangements have been made for final resolution of all

conflicts and that all such conflicts will be over within a short

period of time.

iv) PWs 5 and 10 were told by the 2nd accused that he had

given his youngest daughter in marriage to the 1st accused to

meet the challenge of the deceased.

v) PW6, a neighbour, had earlier on that night at about 8

to 8.30 p.m seen the 1st accused moving to the house of the 2nd

accused.

vi) Even though there was a commotion after the

deceased suffered injuries and many local inhabitants had come

to the scene, no one from the houses of accused 2 to 5 which are

Crl.A.Nos.1092 and 1738 of 2006 17

situated close to the scene of the crime had come to see the

deceased.

vii) Accused 2 to 5 had not gone to the hospital nor had

they attended the funeral of the deceased.

29. Thus according to the prosecution this is a case where

the charge of conspiracy is attempted to be established by

circumstantial evidence. No direct evidence of conspiracy is

available. The learned counsel for the appellants wants to

remind this Court about the axiomatic principles relating to

appreciation of evidence in a case resting on circumstantial

evidence. It is not necessary for us to advert to precedents on

this point. The law is well established and trite that in a case of

circumstantial evidence, the burden rests heavily on the

prosecution to establish all circumstances satisfactorily by

cogent evidence. Such circumstances must be strong links and

together they must constitute a strong chain. Such strong chain

of circumstances must unerringly point to the guilt of the

accused and must rule out satisfactorily any hypothesis of

innocence of the accused. This burden on the prosecution must

be discharged by the prosecution satisfactorily before a finding

Crl.A.Nos.1092 and 1738 of 2006 18

adverse to an indictee can be entered on the basis of

circumstantial evidence.

30. We now proceed to consider the circumstances. The

first circumstance relied on by the prosecution is the motive. It

is true that we have evidence to show that accused No.2 had

disputes with the deceased. This dispute related to cutting down

of trees standing in a property which the 2nd accused had given

to the deceased. It is also indicated that the deceased had a

grievance that his youngest child had suffered disablement on

account of some overt act committed by the 2nd accused. It is

further alleged that the deceased had leased out land to PW17 to

carry out bitter guard cultivation in that property. Earlier it was

PW17 who had cut down the trees as authorised by the

deceased. The prosecution has a further case, though that case

is not substantiated by any documentary evidence summoned

from the police station that on the complaint of PW17, accused 2

to 5 were compelled to report before the police station on every

day. All these together can only establish a strain in the

relationship between the deceased and the 2nd accused and

consequently between the deceased and accused 1 and 3 to 5.

But at any rate, we are of the opinion that such strain in the

Crl.A.Nos.1092 and 1738 of 2006 19

relation between the deceased on the one hand and accused 1 to

5 on the other cannot by any stretch of imagination be held to be

a sufficient and convincing proof to conclude that there was

criminal conspiracy between such close relatives to do away with

the deceased. Motive is established. But we must say that such

motive as to justify a ready inference of criminal conspiracy

between such close relatives to murder such a close relative is

lacking.

31. The prosecution relied on the circumstance that the

1st accused did not have any motive against the deceased. On a

plain reading of Ext.P1, this assertion cannot be readily

accepted. According to the learned counsel for the appellant, a

specific deviation from and transformation of the prosecution has

taken place after Ext.P1 to make it appear that the 1st accused

had no motive against the deceased. This is contrary to the

specific assertion in Ext.P1. The prosecution now wants to

contend that the 1st accused had no motive and that the overt act

of the 1st accused must have been committed by him only at the

instigation of accused 2 to 5. The learned counsel for the

appellant/accused 2 to 5 contends that this theory of absence of

motive for the 1st accused is not justified by Ext.P1. In any view

Crl.A.Nos.1092 and 1738 of 2006 20

of the matter, the theory that the 1st accused did not have any

motive at all and that consequently he must have acted at the

instance of accused 2 to 5 against the deceased cannot also be

readily swallowed. The evidence of PWs 2 and 3 suggests that

the appellant/1st accused had gone to the house of the deceased

in an attempt to broker peace between the deceased on the one

hand and accused 2 to 5 on the other. The behaviour of the

deceased was not very encouraging to that mission of the 1st

accused. If on that score the 1st accused entertained a grudge

against the deceased, there is nothing artificial or unnatural

about it. The ready inference drawn by the prosecution, on the

basis of the alleged absence of motive for the 1st accused, does

not in these circumstances appear to us to be reasonable or

acceptable.

32. The third and the fourth circumstances relate to the

alleged statements made by accused 2 and 3 to certain

witnesses. The statement is only that the dispute shall be settled

within a short period of time. The other alleged statement is by

the 2nd accused that he had given his youngest daughter in

marriage to the 1st accused only to make use of him against the

deceased. The marriage of the 1st accused took place long prior

Crl.A.Nos.1092 and 1738 of 2006 21

to the incident – 5 to 6 years earlier, according to PW5 and 2 1/2

years earlier, according to PW2. Whatever that be, the case of

the prosecution that the 2nd accused gave his youngest daughter

in marriage to the 1st accused, only for the purpose of wreaking

vengeance on his son, the deceased, about 2/6 years prior to the

incident, is again something which does not appeal to us as

worthy of credence and instant acceptance. When one son on

the one hand and the father along with other sons on the other

are engaged in a bitter dispute and well meaning neighbours

enquire about it, it is only reasonable for the righteous

disputants to assure such well meaning neighbours/relatives that

all the disputes will be settled shortly. It would be perverse,

from such statement to assume that the accused had given

expression of their intention to liquidate the deceased by

entering into a criminal conspiracy. The third and fourth

circumstances also do not appeal to us as sufficient, satisfactory

or convincing.

33. The fifth circumstance relied on by the prosecution is

that PW6 had seen the 1st accused proceeding to the house of the

2nd accused. There is dispute as to whether PW6 had originally

said only that the 1st accused was seen moving northwards;

Crl.A.Nos.1092 and 1738 of 2006 22

moving in the direction of the house of the 2nd accused or moving

to the house of the 2nd accused. Whatever that be, we find no

crucial significance to that conduct as it is the admitted case at

all hands that the wife of the 1st accused had given birth to their

second child and she was available in the house of the 2nd

accused. Even if it be accepted that the 1st accused had gone to

the house of the 2nd accused on that evening, that cannot, by any

stretch of imagination, be reckoned as a crucial and vital

indication of the alleged criminal conspiracy between accused 1

to 5 to do away with the deceased.

34. We now come to circumstances 6 and 7. They can be

dealt with together. After the incident, the persons from the

house of accused 2 and 3 did not go to the deceased to attend on

him. They did not participate in the functions relating to

cremation. This is the crux of the allegation. The 2nd accused

along with accused 4 and 5 resides in one house and the 3rd

accused along with his family resides in another house nearby.

The location of their houses can be understood clearly from

Ext.P7 sketch and Ext.P3 scene mahazar. The grievance is that

no one from the house of accused 2 and 3 went to attend on the

deceased when he was known to have suffered the injuries at the

Crl.A.Nos.1092 and 1738 of 2006 23

hands of the 1st accused. The learned counsel for the appellant

argues, and we find merit in that argument, that significantly

there is no evidence to show that accused 2, 3, 4 and 5 were

present in either of these two houses at the relevant time. No

witness significantly makes such an assertion at all. Who were

the others available in the house of accused 2 and 5? There is no

contention that the other family occupants of the houses were

also the conspirators. The mother of the deceased was also

available in the house of the 2nd accused, it is asserted. She had

also not gone to the scene of the crime, it is stated. In the facts

scenario available in this case a ready inference that it was

because of the contumaciousness that none from the house of

accused 2 and 3 went to the scene of the crime, cannot also

readily be swallowed.

35. We must also note that there was strain in the

relationship between the deceased and the other members of the

family. They may not have anticipated that the injury would turn

out to be fatal. To draw an inference of conspiracy from that

circumstance, according to us, would be too artificial, unreal and

puerile.

Crl.A.Nos.1092 and 1738 of 2006 24

36. Similar is the grievance about accused 2 to 5 not

attending the funeral of the deceased. We have evidence to

show that after the incident, there was an attack on the house of

the 2nd accused. Bad blood had been created considerably. The

relatives of PW2 along with some others had allegedly attacked

the house of the 2nd accused as is evidenced from the oral

evidence of PWs 1 and 2. At least there was such an allegation.

The conduct of accused 2 to 5 and the other close relatives

keeping away from the house of the deceased must be

understood realistically in this admitted context. The 1st accused

had caused the injuries. There was strain in the relationship of

the deceased and his father/brothers. The 1st accused was

friendly with accused 2 to 5. Rightly or wrongly there was a

perception that the 1st accused was instigated by accused 2 to 5.

The house of accused 2, 4 and 5 was attacked shortly after the

incident allegedly by the men/relatives of the deceased. It is in

this context that the failure of accused 2 to 5 to attend the

funeral has to be considered. We are of the opinion that

circumstances 6 and 7 cannot also in the facts scenario of this

case lead to a ready inference of complicity of accused 1 to 5 for

Crl.A.Nos.1092 and 1738 of 2006 25

the offence of criminal conspiracy punishable under Section 120

B I.P.C.

37. The 7 circumstances relied on by the prosecution have

not been established satisfactorily. Those circumstances, even if

they are held to be proved, cannot be held to justify a safe

inference of culpability for the offence of criminal conspiracy to

cause the death of the deceased. In this view of the matter, we

are satisfied that the appellants/accused 1 to 5 are entitled to the

benefit of doubt on the allegation of criminal conspiracy raised

against them. The challenge raised by the counsel for the

appellants/accused 2 to 5 must hence succeed. We

unhesitatingly concede to accused 2 to 5 the benefit of doubt.

38. In the result:

A) i) Crl.A.No.1738 of 2006 is allowed in part;

ii) The verdict of guilty, conviction and sentence

imposed on the appellant/1st accused for the offence of

criminal conspiracy punishable under Section 120 B r/w

302 I.P.C is set aside.

iii) His conviction for the principal offence of

murder punishable under Section 302 I.P.C and the

Crl.A.Nos.1092 and 1738 of 2006 26

sentence of imprisonment for life imposed on him

thereunder are upheld;

B) i) Crl.A.No.1092 of 2006 is allowed;

ii) Accused 2 to 5 are found entitled to the benefit

of doubt for all charges levelled against them. They are

consequently found not guilty and acquitted of all the

charges levelled against them;

iii) The 2nd accused is stated to be on bail already.

If the further detention of accused 3 to 5 is not necessary

in connection with any other case, they shall forthwith be

released from custody.

39. The Registry shall communicate this direction

forthwith to the court below as also the prison authorities.





                                       (R.BASANT, JUDGE)




                                     (M.C.HARI RANI, JUDGE)

rtr/

Crl.A.Nos.1092 and 1738 of 2006         27




                  R.BASANT & M.C.HARI RANI, JJ
                       ------------------------------------
                 Crl.A.Nos.1092 and 1738 of 2006

————————————-
Dated this the 8th day of March, 2010

GIST OF THE JUDGMENT

xxxxxxxxxxxxxxxxx

In the result:

a) i) Crl.A.No.1738 of 2006 is allowed in part;

ii) The verdict of guilty, conviction and sentence

imposed on the appellant/1st accused for the offence of

criminal conspiracy punishable under Section 120 B r/w

302 I.P.C is set aside.

iii) His conviction for the principal offence under

Section 302 I.P.C and the sentence of imprisonment for life

imposed on him thereunder are upheld;

b) i) Crl.A.No.1092 of 2006 is allowed;

Crl.A.Nos.1092 and 1738 of 2006 28

ii) Accused 2 to 5 are found entitled to the benefit

of doubt of all charges levelled against them. They are

consequently found not guilty and acquitted of all the

charges levelled against them;

iii) The 2nd accused is stated to be on bail already.

If the further detention of accused 3 to 5 is not necessary

in connection with any other case, they shall forthwith be

released from custody.

The Registry shall communicate this direction to the court

below as also the prison authorities.

(R.BASANT, JUDGE)

(M.C.HARI RANI, JUDGE)

rtr/

Crl.A.Nos.1092 and 1738 of 2006 29