CASE NO.: Appeal (crl.) 784 of 1994 Appeal (crl.) 785 of 1994 PETITIONER: STATE OF KERALA Vs. RESPONDENT: P. SUGATHAN & ANR. DATE OF JUDGMENT: 26/09/2000 BENCH: D.P. Mohapatra & R.P. Sethi. JUDGMENT:
SETHI,J.
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Jealousy, on account of love affair of two men with one
woman, ultimately resulted in the death of one and upon
conviction, sentence to life imprisonment of the other in
the case out of which the present appeal has arisen. The
common beloved was Krishna Kumari, respondent No.2
(hereinafter referred to as “A2”) and one of her paramours
was Soman deceased whose decapitated head and headless body
were recovered from a river in Kerala. After completing his
post-graduation the deceased Soman was in the employment of
Canara Bank posted at Tirurangadi Branch. The other
paramour of the woman is P. Sugathan (hereinafter referred
to as “A1”) who, on the date of occurrence, was
Sub-Inspector of Police posted at Police Station, Ramankiri.
Upon trial A1 and A2 were convicted for the offences
punishable under various sections of the Indian Penal Code
including Section 302, and sentenced to imprisonments, the
maximum of which was the life imprisonment. The Accused
No.3 tried with them was convicted and sentenced for the
offences under Section 201 read with Section 34 of the IPC.
The conviction and sentence of A1 was upheld but the
conviction of the lady accused A2 under Section 302 IPC was
set aside. She was, however, convicted and sentenced under
Section 201 of the IPC. Feeling aggrieved, the State has
filed appeal No.784 of 1994 for setting aside the judgment
of the High Court and on proof of the existence of alleged
conspiracy, to convict and sentence to A2 as well. Against
his conviction and sentence under Section 302 and other
offences under the Indian Penal Code, the A1 has filed
Criminal Appeal No.785 of 1993 with prayer of acquitting him
of the charges. Both the appeals have been heard together
and are being disposed of by this common judgment. The
facts of the case are that deceased Soman had his college
education in the University College at Trivandrum (Kerala)
where initially he stayed with his elder sister who was
employed in the office of the Accountant General. After
about one and a half years he shifted to the college hostel
but continued visiting occasionally the house of his sister
PW4. Krishna Kumari A2 was, at that time, the domestic
servant of his sister. The acquaintance between Soman and
Krishan Kumari developed into love affair between the two.
After his post graduation he got a job in the Canara Bank
and was posted at Thirurangadi but his love affection with
Krishan Kumari A2 continued. He was married somewhere in
the year 1981-82 which resulted in the breaking of his
relations with A2. Thereafter A2 developed illicit
relations with A1 and started residing with him as his
concubine. In 1987 A1 was posted as Sub-Inspector of Police
at Ramankiri Police Station. Despite his having a wife
living and three children, A1 started living with A2 as her
husband in a rented house at Kalarcode. His legally wedded
wife and three children were, at that time, residing at
Alleppey in another house. Even though A1 and A2 had taken
a house on rent in Kalarcode, they normally used to stay in
the official quarters attached to Ramankiri Police Station.
Out of their illicit relationship they had got a son. In
early 1987 deceased Soman accidently came across with A2 and
is alleged to have revived his old intimacy and love affair.
Coming to know about the intimacy of his concubine, Krishna
Kumari and acquiring knowledge that Soman was making
attempts to re-establish his old relationship with Krishna
Kumari, A1 made up his mind to put an end to the intimacy by
causing his death. It was alleged by the prosecution that
A1 and A2 hatched a conspiracy to commit the murder of Soman
and in pursuance of the said conspiracy A2 met Soman at the
Haripad bus stand on the morning of 18th July, 1987 and took
him to the house taken on lease at Kalarcode. On 19th July,
1987 A2 allegedly using deceitful means is stated to have
taken Soman to the official quarters of A1 and sometime
after 10.30 p.m. they caused his death by suffocating him.
At this stage one Prasannan, who later became the approver
and Mohanan accused No.3 are stated to have joined the
conspiracy, earlier hatched by A1 and A2. The dead body of
Soman was removed by A1 and A2 with the help of Prasannan,
the driver of the boat. They carried the dead body from the
Police quarters to the boat and thereafter the approver, as
per the directions of the A1, drove the boat in the Pamba
River to some distance. When the boat reached quite at a
distance in the river, A1 cut off the head from the body of
the deceased with a knife supplied by the approver. The
head was thrown in the river. The boat again proceeded
further. A1 caused many penetrating injuries on the abdomen
of the headless body and pushed it also into the waters of
Pamba River, apparently with the object to destroy the
evidence. As after 18th July, 1987 Soman did not return to
his house, his father started inquiring about his
whereabouts. Soman’s mother, wife, sister and in-laws who
were at Thiruvananthapuram were contacted over the telephone
to convey the news of his missing and also to ascertain as
to whether by any chance, he had reached there. Finding no
clue of the missing Soman, all his relations reached to his
family house and intensified his search. On 20th July, 1987
an FIR in a man-missing case Crime No.254/87 was registered
at Kayamkulam Police Station. On 22nd July, 1987 PW2 Mathew
found a headless body floating in the Pamba River. He
contacted the Police at Pulimcunnu Police Station, where on
the basis of his statement Crime No.75/87 was registered.
PW56 who was investigating Crime No.75/87 conducted a search
of A1’s official quarters at Ramankiri on 25th July, 1987
and prepared Exhibit P-29, a search list. He deputed two
police constables to guard the quarters. The investigation
of Crime No.75/87 and Crime No.254/87 were clubbed together
by the orders of the Dy.Superintendent of Police. DIG,
Crime Investigation directed the Dy.Superintendent of
Police, Crime Branch to take up the investigations of the
case who after taking over, verified the investigation
conducted by the former investigating officers and searched
the houses of PW1, PW8. Accused No.3 surrendered on
1.8.1987 before the investigating officer. A1 and A2 were
also arrested on that day. Various articles were seized and
super-imposition test on the dead body was conducted. On
21st August, 1987 Prasannan who was arraigned as Accused
No.4 expressed his willingness to make a confessional
statement which was recorded by the Judicial Magistrate on
27th August, 1987 after giving him necessary statutory
warning. Thereafter an application was filed before the
Chief Judicial Magistrate, Alappuzha submitting that
Prasannan was willing to give a full and true disclosure of
the whole circumstances within his knowledge regarding the
commission of the crime and he may be made an approver.
After perusing his confessional statement, the Chief
Judicial Magistrate summoned Prasannan PW1 and recorded his
statement. He was tendered pardon under Section 306 of the
Code of Criminal Procedure. The Judicial Magistrate, First
Class, Ramankiri committed the accused to the Court of
Sessions. The order of committal was challenged by the
accused persons on the ground that PW1, who accepted the
pardon had not been examined under Section 306(4) of the
Code of Criminal Procedure before commitment of the case to
the Court of Sessions. The High Court vide order passed in
Cr.M.P. 327/87 quashed the committal order and directed the
Magistrate to proceed afresh in accordance with law and
comply with the provisions of Section 306(4)&(5) of the Code
of Criminal Procedure. The accused persons were granted an
opportunity to cross-examine the approver at the time of
recording of his statement under Section 306. The statement
of the approver was recorded as per the directions of the
High Court and all the three accused again committed to the
court of Sessions to stand trial for various offences under
the Indian Penal Code. The prosecution examined 63 persons
as witnesses in the case and the accused produced 6
witnesses in their defence. As noted earlier, the Trial
Court convicted A1 and A2 and sentenced them to undergo
rigorous imprisonment for three years under Section 193, 5
years rigorous imprisonment under Section 201, 6 months
under Section 342 and imprisonment for life under Section
302 read with Section 120B of the IPC. All the sentences
were to run concurrently. Accused No.3 was sentenced to
undergo rigorous imprisonment for one year under Section 201
read with Section 34 IPC. The High Court relied upon the
testimony of the approver but found on facts that the
prosecution has failed to prove the conspiracy between A1
and A2 before the murder of Soman and acquitted her for
offences under Section 302 and 120B, IPC. However, she was
found to be guilty of the offence punishable under Section
201 IPC and sentenced to the period of imprisonment she had
already undergone by that time which was treated as
sufficient in the circumstances of the case. Dr.Jose
Varghese, learned Advocate appearing for the appellant-
State urged that the High Court committed a mistake of law
in holding that the criminal conspiracy between A1 and A2
for murdering deceased Soman has not been proved. According
to him there was sufficient evidence in the form of various
circumstances brought on record to prove the existence of
conspiracy. The conduct of A2, the factum of her posting
some letters got written from the deceased before his
murder, inducement by her to the deceased to come at the
residence of A2 and her active participation in destroying
the dead body are stated to be sufficient circumstances
which would lead to irresistible conclusion of the existence
of conspiracy. Criminal conspiracy is defined under Section
120(A) of the Indian Penal Code as under: “Definition of@@
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criminal conspiracy. When two or more persons agreed to do,
or cause to be done.
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit
an offence shall amount to a criminal conspiracy unless some
act besides the agreement is done by one or more parties to
such agreement in pursuance thereof.
Explanation–It is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely
incidental to that object.” Section 120B prescribes the
punishment for criminal conspiracy which by itself is an
independent offence, punishable separately from the main
offence. The offence of criminal conspiracy can be
established by direct evidence or by circumstantial
evidence. Section 10 of the Evidence Act introduces the
doctrine of agency and will be attracted only when the court
is satisfied that there is reasonable ground to believe that
two or more persons have conspired together to commit an
offence or an actionable ground, that is say, there should
be a prima facie evidence that the person was a party to the
conspiracy before his acts can be used against the
co-conspirators. This Court in Bhagwan Swarup Lal Bishan
Lal vs. State of Maharashtra [AIR 1965 SC 682] held that
the expression “in reference to their common intention” in
Section 10 – is very comprehensive and it appears to have
been designedly used to give it a wider scope than the words
“in furtherance of” in the English law; with the result,
anything, said, done or written by a co- conspirator, after
the conspiracy was formed, will be evidence against the
other before he entered the field of conspiracy or after he
left it. Anything said, done or written is relevant fact
only “as against each of the persons believed to be so
conspiring as well for the purpose of proving the existence
of the conspiracy as for the purpose of showing that any
such person was a party to it”. It was further held: In
short, the section can be analysed as follows: (1) There
shall be a prima facie evidence affording a reasonable
ground for a Court to believe that two or more persons are
members of a conspiracy; (2) if the said condition is
fulfilled, anything said, done or written by any one of them
in reference to their common intention will be evidence
against the other; (3) anything said, done or written by
him should have been said, done or written by him after the
intention was formed by any one of them; (4) it would also
be relevant for the said purpose against another who entered
the conspiracy whether it was said, done or written before
he entered the conspiracy or after he left it; and (5) it
can only be used against a co-conspirator and not in his
favour.”
We are aware of the fact that direct independent
evidence of criminal conspiracy is generally not available
and its existence is a matter of inference. The inferences
are normally deduced from acts of parties in pursuance of
purpose in common between the conspirators. This Court in
V.C. Shukla v. State [1980(2) SCC 665] held that to prove
criminal conspiracy there must be evidence direct or
circumstantial to show that there was an agreement between
two or more persons to commit an offence. There must be a
meeting of minds resulting in ultimate decision taken by the
conspirators regarding the commission of an offence and
where the factum of conspiracy is sought to be inferred from
circumstances, the prosecution has to show that the
circumstances giving rise to a conclusive or irresistible
inference of an agreement between the two or more persons to
commit an offence. As in all other criminal offences, the
prosecution has to discharge its onus of proving the case
against the accused beyond reasonable doubt. The
circumstances in a case, when taken together on their face
value, should indicate the meeting of the minds between the
conspirators for the intended object of committing an
illegal act or an act which is not illegal, by illegal
means. A few bits here and a few bits there on which the
prosecution relies cannot be held to be adequate for
connecting the accused with the commission of the crime of
criminal conspiracy. It has to be shown that all means
adopted and illegal acts done were in furtherance of the
object of conspiracy hatched. The circumstances relied for
the purposes of drawing an inference should be prior in time
than the actual commission of the offence in furtherance of
the alleged conspiracy.
In Kehar Singh vs. State [AIR 1988 SC 1883] it was
noticed that Section 120A and Section 120B IPC have brought
the Law of Conspiracy in India in line with English Law by
making an overt act inessential when the conspiracy is to
commit any punishable offence. The most important
ingredient of the offence being the agreement between two or
more persons to do an illegal act. In case where criminal
conspiracy is alleged, the court must enquire whether the
two persons are independently pursuing the same end or they
have come together to pursue the unlawful object. The
former does not render them conspirators but the latter
does. For the offence of conspiracy some kind of physical
manifestation of agreement is required to be established.
The express agreement need not to be proved. The evidence
as to the transmission of thoughts sharing the unlawful act
is not sufficient. A conspiracy is a continuing offence
which continues to subsist till it is executed or rescinded
or frustrated by choice of necessity. During its
subsistence whenever any one of the conspirators does an act
or series of acts, he would be held guilty under Section
120B of the Indian Penal Code.
After referring to some judgments of the United States
Supreme Court and of this Court in Yash Pal Mittal v. State
of Punjab[1977 (4) SCC 540]; Ajay Aggarwal vs. Union of
India [AIR 1993 SCW 1866], the Court in State of Maharashtra
v. Som Nath Thapa [AIR 1996 SC 1744] summarised the
position of law and the requirements to establish the charge
of conspiracy, as under:
“The aforesaid decisions, weighty as they are, lead us
to conclude that to establish a charge of conspiracy
knowledge about indulgence in either an illegal act or a
legal act by illegal means is necessary. In some cases,
intent of unlawful use being made of the goods of services
in question may be inferred from the knowledge itself. This
apart, the prosecution has not to establish that a
particular unlawful use was intended, so long as the goods
or service in question could not be put to any lawful use.
Finally, when the ultimate offence consists of a chain of
actions, it would not be necessary for the prosecution to
establish, to bring home the charge of conspiracy, that each
of the conspirators had the knowledge of what the
collaborator would do so, so long as it is known that the
collaborator would put the goods or service to an unlawful
use.”
In the backdrop of the legal position relating to the
offence of criminal conspiracy, it has to be seen as to@@
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whether the prosecution proved beyond doubt that A2 had@@
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agreed with A1 to cause the death of deceased Soman in the
manner alleged in the charge-sheet. The circumstances
relied upon by the prosecution to prove the existence of
conspiracy were enumerated by the Trial Court as under:
“(1) The accused 1 and 2 had a revengeful motive to
murder.
(2) Soman was last seen in the company of accused 1 and
2.
(3) The dead body of the deceased was removed from the
quarters of the first accused to the M.L. Pattam boat on
the night of 20.7.1987 and the body was dismembered and
thrown into the rivers.
(4) The hairs collected from the quarters and the boat
were found to be similar with the scalp hairs collected at
the time of post-mortem examination, on scientific
examination.
(5) The deceased was made to write two inland letters
postdating them so as to make it appear that Soman was alive
on the date of those letters.
(6) Recovery of MO3 on the basis of the information
furnished by the first accused”.
To prove the first circumstance, the prosecution relied
upon the testimony of PWs 4, 15, 16, and 49. PW4 is the@@
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elder sister of the deceased, PW15 is a clerk in the New@@
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Bank of India, PW16 is a clerk in the Pathiyoor Branch of
Canara Bank and PW49 is the Circle Inspector of Kayamkulam
who was a classmate of the deceased Soman. From their
statements it could be gathered that Soman was having
intimacy with A2 for some time in his student days and their
relationship broke down after his marriage. Some months
prior to the incident, he came across A2 and made attempts
to revive the old intimacy. Such an evidence would not, in
any way, prove that A1 was aware of the revival of the
intimacy between erstwhile lovers. No motive for the
commission of the offence of murder could, therefore, be
inferred from the existence of such a circumstance which is
in no way directly related to be the occasion of death. The
mere fact that Soman had told PW49 that Krishna Kumari A2
had invited him to her house on 18th July, 1987 cannot be so
stretched to hold that such invitation was in furtherance of
the alleged conspiracy hatched between A1 and A2. There is
no evidence worth any value to show or suggest that A2 was
averse to the revival of intimacy with the deceased or that
she had shared the secret of her love affair and its revival
by the deceased, with A1 with whom she was living as his
wife, though without marriage. The Trial Court was,
therefore, not justified in holding that the prosecution had
proved that A1 was aware of the revival of intimacy with the
deceased and A2. Even if he had known about the intimacy
there was no cause or occasion for A2 to agree with him to
commit the crime of murder. The termination of earlier
relationship between A2 and the deceased could also not be a
cause for her to share a common intention of committing the
crime particularly when she was happily living with A1 and
out of illicit relationship they had, a son was born who was
living at the time of the occurrence. The circumstances
that Soman was seen in the company of A1 and A2 would only
prove the death of the deceased when he was with the
aforesaid two accused persons but that by itself was not
sufficient to hold that A1 and A2 had agreed to kill him
before he came at their residence on 19th July, 1987. There
was commotion in the quarters of A1 on the night of 19th
July, 1987 is a fact established along with the fact that
there were screaming of some woman at that very time. The
screaming of the woman not only suggest the presence of A2
but her reluctance to share the common intention to kill the
deceased or on seeing him being killed, to be horrified.
Similarly, statements of PWs12, 13 and 17 can be taken to
have proved the presence of Soman at the Haripad bus stand
on 18th morning, but not sufficient to hold that A2 was a
conspirator with A1. The factum of the deceased having been
made to write two post-dated inland letters has not been
proved on facts. The Trial Court itself noticed, “no doubt,
there is no material on record to show that Exhibit D-2 was
a letter written under compulsion”. Exhibit D-2 and D-11
were not proved in the Trial Court. Exhibit D-2 is not
written on an inland letter. Such a weak circumstance, much
less proved on facts, could not be held to be sufficient to
infer the agreement between A1 and A2 to commit the murder
of deceased Soman. The alleged circumstances relied to show
the existence of conspiracy are such circumstances, which
even when believed, cannot be held to have proved, beyond
reasonable doubt, involvement of A2 in the commission of the
crime of murder. The High Court, while giving A2 the
benefit of doubt rightly held as under:
“Now we will proceed to consider whether there was any
conspiracy between accused 1 and 2 for causing death of
Soman. The mere fact that Soman was persuaded to go to the
quarters is not sufficient to show that 2nd accused had any
intention to finish her paramour off. PW49 (Circle
Inspector of Police) was a friend of Soman. He deposed that
Soman had told him once that 1st accused is in possession of
the letters and photos sent by Soman and that Krishnakumari
would get them from 1st accused and the krishnakumari had
invited Soman to visit her on 18.7.1987. This night, at the
most, show that Krishnakumari would have really intended to
revive her old connection with Soman. Learned Additional
Public Prosecutor contended that as 2nd accused had ventured
subsequent to the death of Soman, to post the letters
written by Soman, the conduct is reflective of a plot
hatched by her and 1st accused together. The said conduct
need not necessarily be reflective of that. In the same
manner as 1st accused drafted PW1 and 3rd accused he would
have secured the services of 2nd accused subsequent to the
murder.
One circumstance in the above context is relevant as it
has a tendency to absolve 2nd accused from the charge of
criminal conspiracy. When some of the neighbours heard a
commotion on the night of 19.7.1987, they rushed to the
police quarters. PW23 said that it was a female sound and
the word overheard indicated that the female was crying
aloud. It is indicative of 2nd accused witnessing some act
which 1st accused would have perpetrated on the deceased and
on seeing it she would have cried aloud. Then again PW1
said that while he was taking 2nd accused to Changanacherry
her countenance had a grieving look.
We are inclined to think, from the aforesaid
circumstances, that she was only a victim of intimidation
and coercion in doing what 1st accused would have commanded
her to do. We are, therefore, giving her benefit of doubt
in regard to the charge of criminal conspiracy.”
After perusing the whole record, scanning the evidence
of the prosecution witnesses and hearing lengthy arguments
from both sides, we are satisfied that the High Court was
right in holding that charge of criminal conspiracy against
A2 had not been proved beyond doubt. She was, therefore,
rightly acquitted of the charge under Section 302 read with
Section 120B of the IPC. However, as she was found to have
actively participated in causing disappearance of the dead
body of the deceased knowing and having reason to believe
that his murder has been committed by A1, was convicted and
sentenced under Section 201 of the IPC.
Shri C.N. Sree Kumar, learned Advocate appearing for A1
in Criminal Appeal No.785 of 1994 submitted that conviction
and sentence of appellant being essentially based upon the
testimony of PW1 was not legal and valid. According to him
PW1 was not a reliable witness and that there were major
discrepancies in his deposition. We are not impressed with
this argument. Prasannan PW1 has been proved to have been
validly granted the pardon under Section 306 of the Code of
Criminal Procedure and the accused-appellant afforded
sufficient opportunity of cross-examining him both in the
committal as well as in the Sessions Case. He has withstood
the cross-examination and proved the factum of the death of
the deceased by A1 and the destruction of his body by all
the accused-persons. An accomplice is a competent witness
and a conviction can be based upon his testimony if it is
otherwise corroborated in material particulars. Both the
Trial Court as well as the High Court have found on facts
that the death of Soman was a case of homicide for which A1
was responsible. PW1 was the driver of a boat in which
personnel of Ramankiri Police used to undertake their
journey. On the date of occurrence a young man accompanying
A2 came to the room of A1. Despite there being defects in
the boat, the witness was asked by A1 to arrive at 12o Clock
in the night on the west side of NSS School and threatened
that if he did not come A1 will finish him. He was inquired
as to whether there was a knife in the boat to which he
replied in the affirmative. A1 told the witness to sharpen
the knife. At about 12o Clock in the night he took the boat
to the place earlier notified by A1. Accused No.3 was
accompanying him. Accused No.3 slept in the boat and the
witness went to inform A1 who was sitting on the side wall
of his quarter, along with A2. The young man whom the
witness had seen a day earlier was lying dead there with one
armless baniyan and underwear. A1 told the witness to carry
dead body. The witness, A1 and A2 together carried the dead
body to the half wall. The witness was told by A1 to go to
the boat and bring Mohanan Accused No.3. The witness and A1
kept the dead body inside the fence. The witness, Accused
No.3 along with A1 kept the dead body on the platform and
kept it upside. The dead body was kept in the boat and the
witness asked to start it. After reaching one kilometer
distance A1 told the PW1 to stop the boat. A1 got the knife
from PW1. He held the head by hairs of the deceased and
started cutting his throat neck by his knife. After
chopping off the head A1 threw it in the river. Thereafter
he started cutting the stomach of the dead body and pushed
away it into the river. The knife was also thrown into the
river. In this process A1 was also injured and he got his
leg injury dressed next day in Lurd Hospital. After being
told by some people that a headless human body was seen
floating in the river, PW1 went to the quarters of A1 to
enquire about it. He was told not to worry and not to tell
anybody whatever had happened. The whole of the deposition
of PW1 is the vivid explanation of the manner in which the
offence was committed by A1 in the presence of A2 and A3.
There is no reason to disbelieve the statement of PW1.
Besides his ocular testimony there is sufficient
corrorborative evidence which connects A1 with the
commission of the crime of murder of the deceased Soman.
Learned counsel appearing for A1 could not refer to any
alleged weak link to the circumstances relied upon by the
courts below to show that the testimony of PW1, an approver,
had not been corroborated. The High Court was, therefore,
right in observing:
“While considering PW1’s evidence, one broad aspect has
to be borne in mind. In a waterlogged area like Ramankari
transportation is possible only by boat or canoe. If a
crime was committed by a Sub Inspector, the most likely
means of conveyance which he might hackney is a boat. If
there was any boat attached to the Police Station available,
its crew would be the likeliest persons on whom the culprit
may resort for help for disposing of the dead body. There
is no dispute that “M.L. Pattom” boat was so attached to
Ramankari Police Station. PW.38 is the owner of the boat
and he said PW1 was the driver of the boat. So, there is
very strong possibility that PW1’s boat would have been
utilised for disposing of the body if 1st accused was the
culprit.”
We are not satisfied with the submission of the learned
counsel for the appellant that the conviction of his client
is solely based upon the testimony of witness PW1 and his
deposition is not corroborated in material particulars. The
circumstantial evidence produced in the case is sufficient
to connect the accused with the commission of the crime. It
does not lead to any other inference than the one of his
involvement in the crime. We do not feel any reason to
disagree with the findings of the Trial Court as well as the
High Court in so far as involvement of A1 in the commission
of crime of murder is concerned.
There are no merits in both the appeals which are
accordingly dismissed.
