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
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Crl.A.Nos.1092 and 1738 of 2006
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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