Abdulla Kunji @ Nadubail Abdulla v. Central Bureau of Investigation (CBI)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940 CRL.A.No. 680 of 2012 AGAINST THE JUDGMENT IN SC 156/2011 of IV ADDITIONAL SESSIONS COURT, ERNAKULAM DATED 29-03-2012 CP 7/2010 of CHIEF JUDL.MAGISTRATE, ERNAKULAM ## APPELLANT/ACCUSED NO.6 ABDULLA KUNJI @ NADUBAIL ABDULLA, AGED 50 YEARS, S/O.KUNHALI BARY, NADUBAIL HOUSE, PERLA.P.O., KASARGOD. BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.VIPIN NARAYAN SRI.P.M.RAFIQ ## RESPONDENT(S)/COMPLAINANT: CENTRAL BUREAU OF INVESTIGATION, TRIVANDRUM, REPRESENTED BY STANDING COUNSEL, CBI, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE INSPECTOR OF POLICE, CENTRAL BUREAU OF INVESTIGATION, TRIVANDRUM-695001. R1 BY SPL. PUBLIC PROSECUTOR SRI.SASTHAMANGALAM S. AJITHKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2018, ALONG WITH CRL.APPEAL NOS.712, 737, 885 AND 1155/2012, THE COURT ON 13/4/2018 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ============================== Dated this, the 13[th] day of April, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ These appeals have been filed by the accused who were convicted in Sessions Case No.156/2011. Crl.Appeal No. 1155/12 has been filed by the first accused, Crl.Appeal No.712/12 by the 4[th] accused, Crl.Appeal No. 680/12 by accused No.6, Crl.Appeal No.885/2012 by accused 8, 10 and 12 and Crl.Appeal No.737/12 by the 13[th] accused. 2. There were altogether 14 accused in the case of which accused 2 and 3 turned approvers and the Trial Court convicted accused 1, 4, 6, 8, 10, 12 and 13 and accused 5, 7, 9, 11 and 14 were acquitted. 3. The offence charged against the accused were u/s 120B r/w Sections 143, 147, 148, 149 r/w Sections 302, 201, 212 and 341 I.P.C. 4. The prosecution allegation was that on account of a Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:2:- political rivalry that existed between two political parties viz., the activists of CPI(M) and Congress (I) workers during April, 2009, accused 4 and 6 entered into a criminal conspiracy to commit murder of Abdul Basheer @ Jabbar. In pursuance of the said conspiracy, they arranged to carry out the crime through 7[th] accused, who arranged the 5[th] accused. Further, in October, 2009, accused 4 and 6 contacted the first accused through the 14[th] accused for identifying the deceased and he has to arrange persons to carry out the job and own the responsibility for the murder. First accused joined the conspiracy and agreed to identify the deceased to the gang of hired persons to commit the murder and also to provide fake persons to surrender before police as murderers. 5. Initially the investigation was conducted by the local police. Later, the case was referred to CBI for investigation and accordingly, CBI had filed final report against the accused. In order to prove the case, prosecution placed reliance on the oral testimony of PW1 to PW80 and Exts.P1 to P148. The material objects produced and proved were MO1 to MO28. The defence relied upon Exts.D1 to D47. Ext.C1 was marked as a Court exhibit. Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:3:- 6. Separate arguments were made by learned counsel for the accused in these appeals. There is no eye witness to the incident and the prosecution case mainly rests upon the circumstantial evidence. Ext.P5 is the First Information Statement given by PW3. FIS was given at 2.30 a.m on 4/11/2009. The allegation was that on 3/11/2009 at about 10.30 p.m, Moideen Kunji @ Moinji and certain others had murdered the deceased. He got information from a person named Abdulla who called him and informed that the deceased was attacked in a place near Ukkinadukka. He proceeded to the said place in his jeep. When he reached the place, he saw a red coloured vehicle bearing No.KA-21M/2319 an Indica car with its headlight on. The vehicle was also damaged. He did not see any person in the nearby area. He proceeded to the house of Abdulla who informed him that the incident happened near Ukkinadukka junction and somebody had called him. He along with Sadiq and certain other persons from the nearby locality went to that place. They saw Jabbar the deceased lying near a bushy area soaked in blood. At that time, some persons from the neighbouring houses came. They were Ashraf and Raheem. He went near the deceased and saw that he Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:4:- had injuries on his head and both the hands and leg. He asked for water. He got some water from the nearby house. He asked him what happened and he told him that Moinji and about five others had come in a car at about 10.30. They restrained him and inflicted injuries. He also told that deceased had gone to Kasargod and was coming back in the Indica car. He and others took the deceased in his jeep and proceeded towards a hospital at Kasargod. When the jeep started moving, Jabbar insisted that he should talk to Radhakrishnan master. Immediately someone sitting in the rear side took the phone of deceased and dialled to Radhakrishnan master and the phone was given to the deceased. He was talking to master. He did not hear what Master was saying. Till they reached Badiadukka, the deceased was talking to master. The jeep reached E.K.Nayanar Hospital. The staff examined him and asked them to take the deceased to Mangalapuram. He immediately took the jeep and proceeded to Carewell Hospital. When they reached there, Doctor on examining deceased told that he died. It was 11.10 p.m. According to him, Moinji and certain others had committed the act on account of some reason. He also had given the address of Moinji. Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:5:- 7. PW1 is the second accused who turned an approver. He is the brother of the first accused. He was referring to an incident by which, case was taken against him and his brother Moinji (A1) by the police and they had proceeded to Mysore on 5/10/2009. After two days, they came to Madikkeri where they stayed for twothree days. Thereafter they proceeded to a place by name Sulliya and then proceeded to Kasargode to see his lawyer. After seeing his lawyer, he came back to Madikkiri. When they reached Madikkiri, Moideen was also there. PW1 along with Moideen had gone to a place at Rancha at Karnataka. Razak and his brother-inlaw Razak was along with them. They proceeded in a Maruthi 800 car bearing No. KL-14/H2423. They had proceeded to Rancha as Moideen told them that they should go back home. When they reached Sulliya, Moideen said that they should proceed to Rancha and Shadeer also wanted to proceed to Rancha. Shadeer is the 14[th] accused. He understood that Shadeer wanted to go to Rancha to talk about the case and to meet Naduvil Abdulla Kunju and Sudhakaran Master who had offered to come there. He identified Sudhakaran Master, the 4[th] accused and Naduvil Abdulla, the 6[th] accused. He knew them. He deposed that Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 **==> picture [21 x 9] intentionally omitted <==** everybody knew them as they were members of CPM. When they reached Rancha and was standing in front of a hotel by about 3-3.30 afternoon, accused 4 and 6 came there. They came in a black Wagon R car. There were three persons sitting behind the car. He did not knew them at that time. He can identify one of them. He identified the 12[th] accused Mahesh. Moideen went along with them in the Wagon R car. He along with two other persons remained near the hotel. Moideen came back after 2– 2½ hours. After Moideen got out, the other vehicle of Abdulla went away. Moideen got into their car. They reached Madikkari. He also deposed that he knew Abdulla's Wagon R car bearing Regn.No.KL14/H 6812. On the way to Madikkari he asked Moideen about the case. He said they have arranged to take care of the case and accused 4 and 6 told him that “Jabbar നു ഒരു പണണി കകകൊടുക്കണണ". When he asked as to who will do it, he told him that Mahesh and persons along with him will do the same and Moideen need only identify Jabbar to them. He further clarified that all the details were mentioned to him at Madikkari and inside the car, he had only said “Jabbar നു ഒരു പണണി കകകൊടുക്കണണ". During night, on that Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:7:- day Moideen was sitting alone outside. He went towards him. At that time, all details were mentioned to him. He was told that if he shows Jabbar, he will get `5 lakhs and if at all there would be any case, some innocent people can be given as accused. After that Mahesh called in PW1's phone. He disconnected the phone and thereafter gave the number of Mahesh from his phone. Moideen called Mahesh. He did not hear what they were talking. Moideen's telephone number ended with the numbers 206. It was a new sim. After two days, they came to Madikkiri town. PW1 , Razak and his brother-in-law Razak went to have food. Moideen went into a shop and came back. Thereafter they came back. After 2-3 days, they again went to Madikkari town and again he saw Moideen proceeding towards the very same shop. He also went behind him. Moideen purchased two knives from the said shop. One knife was having 3/4[th] of handle length and it was bent on its tip with a wooden handle. Moideen also got a bill for buying the knives. When PW1 asked him why he had purchased the knives, he was told that it was to be given to Mahesh through Sudhakaran Master. He also identified the weapons which are marked as MO1 and MO2. He further deposed that from Madikkari town they Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:8:- came back to Shaji's house. They dropped both the Rasacks at Saaji's house and proceeded to Sulliya. PW1 was dropped at a petrol pump and Moideen went away. After some time, he came back and at that time, the knives MO1 and 2 were not in the vehicle. PW1 asked him as to what happened to the knives. He was informed by Moideen that the knives were kept aside. It will be a problem if Karnataka police sees them. They slept in the car at the petrol pump. Next day by noon Moideen went in the car. He came back with the knives. In the meantime, a telephone call came. Moideen was talking over telephone and he was told that Mahesh and others will come to Peruva. At about 9 p.m, PW1 and Moideen proceeded to Peruva. They saw a red Alto car. Two persons got out. Moideen went inside the car with the knives. From among the two persons who got down from the car, one was Basheer. He identified the 10[th] accused. Basheer got into the Maruthi 800 car in which they were travelling. Mahesh got into the Alto car. Mahesh and Moideen proceeded in the Alto car. PW1 and Basheer sat in the vehicle. At that time, vehicle of Kerala police came and Basheer asked him to move the vehicle to another place. He was told that Basheer has several cases in Kerala. They Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:9:- shifted the vehicle to another place. After 2-2 ½ hours, Moideen called him from Mahesh's number and asked him to come to Peruva. At Peruva they saw the Alto Car and Basheer got into the same. Moideen got into the Maruthi car. At that time, the knives were not there in the Maruthi car. In the meantime, Shadeer had called PW1 and asked for Moideen. He disconnected the phone. By midnight he proceeded to Mangalapuram. While proceeding to Mangalapuram, he got a call from Moideen. He informed Moideen that Shadeer had called him and told that Jabbar was seen in the top of Vindhya Textiles at Perla. After all the others left, Moideen and PW1 proceeded to Managalapuram. That day they stayed at a lodge. Next day morning, Moideen called Abdulla Kunji and Sudhakaran Master. They were having conversation. Moideen also called Shadeer. He gave the account number of Asma. He told that he does not have money for his needs. Shadeer collected `5,000/- from Abdulla and it was put in the account of Asma. They took the money at about 10-11 in the morning. Moideen took `4,000/- and they purchased a shirt and dhothi and stayed at Marakkandi during the night. They stayed in a relative's house that night. Next day also they stayed in another house. Asma and Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:10:- the children came on 3[rd] at 7 p.m. After Moideen's wife and children proceeded in a bus, Moideen told PW1 that Mahesh and his friends will come near Kanyana bar. PW1 proceeded in Moideen's car. A Santro car came. It was at 9 p.m. Moideen got into the Santro car. PW1 was asked to proceed to Marakkandi in his car. While proceeding to Marakkandi, he saw his friend Swagath Shereef and collected `100/-. When he reached Marakkandi, PW1 called Moideen. He was asked to have food. He proceeded to Adianadukka and had food. On that day he saw Mahesh. He was getting down from a vehicle and proceeded with Moideen in the car. He reached Marakkandi by 11-11.30. Moideen called him and asked him to come to Peruva. He came to Peruva. He saw Moideen there. Thereafter Moideen had driven the vehicle. Moideen asked PW1 to call Razak and told that Razak will come at Marakkandi. Razak is Saaji's husband. He was there at Marakkandi. He also got into the vehicle. Moideen told him that “ Jabbar നു പണണികകകൊടുത്തു പ്രശ്നമകൊയണി. ഇവണികടെ നണിൽക്കൻ പറണില്ല എന പറഞ. ". They proceeded to Bangalore. Rasak took ഞങ്ങൾ പപകൊയണി a bus to Bangalore. While proceeding, Moideen called three Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:11:- persons. Moideen was threatening them. He told ““Jabbar നു പണണി കകകൊടുത്തു. നണിങ്ങൾകണ പണണി തരുണ.”. PW1 asked who were they and he replied that they are Radhakrishnan Master, Sheikh Ali and Kuriyadath Abdulla. PW1 knew these persons as Radhakrishnan Master was a school master and belongs to Congress party and others were also Congress people. At Bangalore, he resided in his friend's room. Razak went back next day noon after having food. While they were proceeding to Bangalore, when they reached a place by name Maani, Shadeer called on phone and informed that Jabbar had died. Moideen did not say anything. From Bangalore they proceeded to Kolar. They stayed at a temple by name Gurgimoola Darga for a few days. Shadeer called Moideen and asked him to come to their place immediately. The case particulars will be taken care of by Abdulla Kunju and Sudhakaran Master and he need not worry. On 18/11/2009, they started from that place at 1.30 and reached Adiyanadukka at around 1-1.30 early morning on 19/11/2009. When they reached Adiyanadukka, police caught them. Police arrested them in the murder case of Jabbar. He further deposed that he was in judicial custody for Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:12:- quite a long time and in between Shadeer and Naduvil Abdulla had visited them. They had asked Moideen to name two other persons as accused and the intention was to give the names of innocent persons. He got bail after 72 days. He had given a statement to the Magistrate u/s 164 Cr.P.C. Ext.P1 is the said statement. He also deposed before the Chief Judicial Magistrate and the said statement is marked as Ext.P2. Based on Ext.P2, he was made an approver. He also identified the mobile phone used by Moideen as MO3. He also stated that they got bail after 72 days and Moideen conducted a press conference stating that three of them PW1, Abdul Razak and Bapu Kunju were innocent. Naduvila Abdulla and Sudhakaran Master were the persons responsible. CBI had read to them the statement recorded by the local police. It was understood that they have recorded various matters but had not recorded certain matters which he had mentioned. He had mentioned about the involvement of Naduvila Abdulla, Sudhakaran Master and Shadeer in the case. But the Circle Inspector Premraj told him that their name should not be mentioned. It is thereafter that he had given a statement Ext.P1 before the learned Magistrate. Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:13:- 8. PW2 who was the 3[rd] accused in the case is another approver He is Abdul Razak. His wife's name is Sajitha who is called as Saaji. They resided at Madikkari. His brother-in-law is Abdul Razak. During October-November, 2009, he was at Madikkari as his wife was pregnant. His permanent residence is at Kuthukkoli. He identifies Shadeer, Moideen Kunji, Sudhakaran Master and Naduvil Abdulla. Moideen Kunji is his relative. He testified that Moideen had come to Madikkeri at his wife's house in October, 2009. It was during the first week of October, 2009. He came along with his wife and children and his brother Ashraf (PW1). The day on which they came, he proceeded to his native place and came after 7-8 days at Madikkeri. At that time Moideen and his wife were there along with his children and PW1. They told him that they had gone to Mysore and had come back. Moideen told him that Moideen Kunju and Ashraf had 2-3 cases in Kerala and they could not go home. After he reached there, they stayed for a few days and thereafter Moideen told him that his wife and children should be sent back home to Sulliya and Ashraf has to go to Kasargod to take bail in a case and to sign necessary vakalath. They came to Sulliya in Moideen's Maruthi Car. PW2 was Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:14:- driving the vehicle. When they reached Sulliya, Moideen's wife and children were sent back home in a KSRTC bus along with Ashraf (PW1). They came back to Madikkeri and stayed there for a few days. Moideen later told him that he would like to to Javakkal Darga. He along with his brother-in-law Abdul Rasak,, Ashraf and Moideen Kunju proceeded to Javakkal. They stayed there for a day. Next day Ashraf and Moideen went to a bank. Thereafter they came back to Madikkeri and stayed there for a few days. One day morning Moideen said that he would like to go to Sulliya and PW2 and his brother-in-law should also accompany them. Accordingly, four of them proceeded in the Maruthi 800 car bearing No.KL-14/H 2423. When they reached Sulliya, Moideen informed them that they are not going to native place and they are going to Rancha. He informed them that Sudhakaran Master and Naduvil Abdulla Kunju will come there to talk about a case. He knew the 6[th] accused who is a native of his place and a Marxist party member. Sudhakaran Master the 4[th] accused is also a known person among the people in the locality who is the Area Secretary of Marxist party. Therefore, they decided to proceed to Rancha. They reached Rancha at 3 p.m. They waited for Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:15:- sometime. At that time, they saw a black Wagon R car having No.KL-14H/6812. He knew that car. It belonged to 6[th] accused. 6[th] accused was driving the car and the 4[th] accused was sitting on the left front side. Three persons were sitting in the back of the car whom he did not know. Car stopped by the side of the road. Moideen proceeded to the said car, got inside and proceeded towards Puthoor road. They waited and went to a nearby hotel to have tea. After 2-2 ½, hours 1[st] accused came in the same car and thereafter four of them went to Madikkeriyil. They asked Moideen as to what happened to the case and Moideen informed them that accused 4 and 6 have told him that they will take care of the case and they want a help and when they asked what help it is, he said “Jabbar നു ഒരു പണണി കകകൊടുക്കണണ". They reached Madikkeri at 7-7.30 p.m and stayed there for about 2 days. The town is half a km away. They proceeded to the town after two days. While three of them proceeded to have food, Moideen entered a shop by name Coorg Enterprises. After some time, Moideen came back and all of them proceeded to Medikkeri. Two days after that again they came back to the town and had food. Moideen got into the same Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:16:- shop which he had visited few days back. Ashraf accompanied him and after some time they came back. Moideen had a kit with him. It was in an elongated shape. He kept the same in the car in the front seat near the gear. It was a paper packet which had two handles. They knew that it were knives. Handles were wooden. They proceeded to his wife's house. He asked Moideen for what purpose he had purchased the knife. Moideen told him that “ഇത ജബകൊറണിനു പണണി കകകൊടുക് നകൊണ. നണിങ്ങൾ അറണിപയണ്ട ആവശശ്യമണില്ല.”. They dropped him and his brother-in-law at his wife's house. Thereafter, they had not come. He had called Moideen over phone. They had a case at Karnataka. Thereafter he deposed that he received a call from Moideen in Bapu Kunji's telphone and he was asked to proceed to Pallickaduth and he was told hat Ashraf was waiting there and he could not contact Ashraf. He should go there along with Ashraf and he should come to Peruva. That was about 11.30 p.m. He called his brother Azeez and asked him to be dropped at Marakkani. His vehicle did not have petrol and therefore from Bappu Kunji's phone he again called Moideen and told him that there is no vehicle. But Moideen told him that he should Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:17:- immediately come to Peruva along with Ashraf in the car. He caught hold of a lorry and in the lorry he reached near Marakkani near a church. He did not find any car and Ashraf was not seen. He waited there for some time. Then he thought of proceeding to a nearby relative's house. Then he saw a car near the church. The car came and stopped nearby. Moideen Kunju and Ashraf were in the car. It was a Maruthi 800 car. Moideen asked him to get inside the car. He was asked to drop them near Hassan. PW2 told him that he was not in a position to travel and he would not have proper dress. Moideen told him that “ജബകൊറണിനു ഞകൊൻ പണണി കകകൊടുത്തു. ഇവണികടെ നണിനകൊൽ പ്രശ്നമകൊകണ.”. He got into the car. When they reached Maani, Moideen got a call and he talked over telephone. He asked him who it was. Moideen said it was Shadeer and Jabbar തടണിപപകൊയണി . He identifies Shadeer as A14. Then they decided not to go to Hassan and proceeded to Bangalore. On the way he was calling 2- 3 persons and they were threatened. He was telling “ജബകൊറണിനു പണണി കകകൊടുത്തു അപത പപകൊകലെ തകന നണിങ്ങൾകണ തരുണ ”. They reached Bangalore on 4[th] by noon and stayed in the room of Ashraf's Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:18:- friend. Next day, he came back to his native place. He was given `400/- which Moideen had taken from the nearby ATM. He reached Madikkeri on 6[th] early morning at 2 a.m. When he was getting ready to go to mosque, he was told that A4 and A6 are coming from Madikkeri to see him. When he came back from the mosque, his brother Azeez called him in his bother-in-law's phone. He was asked to come to the road. He came down to the road. A while Alto car was seen. Its number was 220. He saw Abdulla Kunju and Sudhakaran Master in the back seat. His brother Azeez and Cheku was also there. Though he invited them to his house, they asked him to get into the car. He got in the car. A6 was driving the car. A4 was sitting in the front. Car proceeded for about 1 km and stopped by the side of the road. He was asked as to where Moideen was and whether they could contact him. He told them that they are at Bangalore and they could not be contacted. He was asked to contact them the moment Moideen reaches Medikkeri and he was asked to inform Moideen that he need not worry. Immediately he has to surrender or else people will suspect A4 and A6. If he goes to jail, he need not worry and there are people in the jail to help him. That time, A6 got a phone. He Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:19:- disconnected it. He told him that Iku from central jail had called and everything is arranged in the jail and Moideen is to be told that everything is taken care of and he should not be afraid. He was thereafter dropped at his house. Next day on 7[th,] Shadeer called his brother-in-law Razak and informed that police knew about the fact that he had taken them to Bangalore and that he should immediately surrender before police and that he should not be involved in the case. A6 also talked to him and informed him about the same. He asked A6 not to make him an accused. He told him that it is true that he had taken Moideen to Bangalore and he should not be made an accused. He also told them that they had come to Rancha to conspire to murder Jabbar. Immediately they disconnected the phone. After CBI took over investigation, he had given a statement to the Magistrate as Ext.P3. Ext.P4 is the statement given by him to the Chief Judicial Magistrate to declare him as approver. He also deposed that the police had recorded the statement. It was read over by CBI and it was noticed that many matters which he has mentioned were not incorporated. 9. The purpose of examining PW1 and PW2 as approvers Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:20:- was for proving the involvement of the first accused in the crime and the involvement of accused 4, 6, 12 and 14. It is settled law that approvers' evidence requires corroboration. The main contention urged by the learned counsel for appellants is that there is no evidence to corroborate the testimony of PW1 and PW2 and their evidence by itself cannot be treated as corroborating to each other's evidence. 10. PW1 and PW2, the approvers have not participated in the crime. In the sense, they are not eye witnesses. They have only information which they understood and what was told to them by the first accused. Further, they have also deposed regarding the presence of 4[th] and 6[th] accused at Rancha on a particular day and the involvement of the first accused with them and the purchase of the knives MO1 and MO2. We shall deal with their evidence while considering the arguments raised on the question of conspiracy to commit murder. 11. Now coming to the actual crime, the eye witness to the crime is PW5. He has given in detail as to what happened on the fateful day i.e on 3/11/2009 from 8-8.30 onwards in the morning. What is relevant is the time when he along with the deceased Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:21:- were sitting in an Indica car at Ukkinadukka at Benputh road at about 10.35. He deposed that at the time Radhakrishnan Master came in his Wagon R car from Perla. He stopped his vehicle parallel to the Indica car. That was about 10.14 p.m. maximum. Deceased got down and was talking to Master. At that time, they saw a silver coloured Santro car coming from Perla slowly. The said car passed their vehicles. The vehicle was fully loaded with men. After some time, the said vehicle came back towards Perla. When the vehicle left, Master proceeded towards his estate at Benputhanadukka. Deceased came and sat in the driver seat. He along with the deceased were sitting in the car and they had a talk for about one or two minutes. At that time, Jabbar called Master in his phone and asked him whether he should wait and whether he was afraid of the Santro Car. Master informed Jabbar not to wait and asked them to proceed further. He further deposed that he took a 'U' turn of the vehicle toward Perla and at that time the Santro car was coming from Perla side in great speed. It came and hit on the driver seat of the Indica car. The door on the driver seat got jammed and it could not be opened. The cabin light of the Santro car was on. He could see two Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 **==> picture [27 x 9] intentionally omitted <==** persons sitting on the front seat, and on the left seat, it was the first accused. He uttered to the others “കകകൊകത്തെടെകൊ കകകൊകത്തെടെകൊ ”. A fair lean person was sitting in the left side. He identified him as the 10[th] accused. The Santro car reversed a little. Deceased immediately said to flee from the place. PW5 went out of the left side door and Jabbar followed him. When he got down, a tall fellow was coming towards him with a chopper. Somebody was calling his name as “Mahesh” and he was told that the person is wearing the red coloured shirt. Deceased was wearing a red coloured shirt. The tall fellow uttered the names of others as Ravi, Yesu and asked them to come soon and that they will take care of the deceased. When he looked back, he saw a person coming with a chopper. The person who came first was calling for Ravi and Yesu. He identifies the 12[th] accused Mahesh, the 8[th] accused Ravi and the 13[th] accused Yashwanth Kumar. PW5 ran towards Perla side just behind Jabbar. When they reached highway, he looked back and he saw three of them chasing Jabbar. He ran for about 25 metres and looked back. He saw that Jabbar has crossed the highway and running towards the acacia tree and three of them Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:23:- following him. He heard Jabbar crying out as “യകൊ അളകൊ യകൊ അളകൊ". PW5 went to the house of his friend Mehrooz which was roughly 300 metres away. From the moment vehicle hit on the Indica car, Jabbar was crying aloud. PW5 informed the matter to Mehrooz and his mother. They said that they are afraid and cannot come. He identified MOs 1 and 2 and the iron rod MO10. The shirt which Jabbar was wearing was marked as MO4 and his pant MO5. PW5 further deposed that he thereafter called Radhakrishnan Master but he could not get connection. He called a taxi driver Anvar and informed him about the situation and that he was asked to come and collect it. He also mentioned him the place where Jabbar was attacked. Thereafter Master called PW5 and he informed Master about the situation and he told Master that he does not know where Jabbar was. At that time Anvar came and they proceeded to hospital. When they reached there, it was informed that Jabbar was dead. He further deposed that they proceeded to Carewell hospital as somebody informed Anvar that Jabbar was taken to the hospital. He further deposed that his statement was not read over to him. Several matters which he has not mentioned have been incorporated. According to him, he had not seen first Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:24:- accused inflicting a blow on Jabbar. He had given a statement to the Magistrate u/s 164 Cr.P.C. which is marked as Ext.P7. He was the witness to the Test Identification Parade (TIP) conducted at the Sub Jail and he had identified the accused. There were 10-30 persons and from among them he had identified the accused, whom he had seen. 12. The next witness who had seen the deceased for the first time was PW66. PW66 is a person residing in the neighbourhood where Jabbar was lying. He deposed that he heard a cry and he along with his brothers proceeded to the place from where they heard the noise. They saw the deceased in a pool of blood. The deceased asked for water. They went home and gave water. Deceased was saying that he should be taken to the hospital, but he did not involve in the matter to avoid further controversy. 13. The next person to reach the place of occurrence was PW3. He deposed that one Baliga Abdulla had called his father by about 11.00 pm on 3/11/2009. His sister Rasheeda attended the phone. Since their father was not there, he was asked to attend the phone. He was informed that the deceased was attacked near Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:25:- Ukkanadukka. He informed the matter to his brothers, his sister and mother. He took a jeep and proceeded to Ukkanadukka. When he was proceeding from Ukkanadukka to Benputhadukka, he saw an Indica car with its headlight on facing Perla Badiadukka road. He went and checked up, but nobody was there. He therefore went to the house of Baliga Abdulla and informed him that nobody is seen. Baliga Abdulla is a CPI(M) member and a known person. He asked PW5 to check up once again. PW5 asked him also to accompany him. Accordingly he along with his son Sadique came along with PW5. Another person by name Samad also came there. When they were about to go, his brother called him and told that he heard Jabbar calling “god”. His brother Nazar was following him in a bike. He was calling from Ukkanadukka junction. All three of them proceeded to the said place. Sadique had a torch. They proceeded to the place where Nazar had pointed. Among the acacia trees and in a lower level from the road, they saw Jabbar lying there severely injured. Jabbar was lying 10 feet down the main road. He was severely injured. He called him as Jabbar. All the others also came down and called him. Then he said, you are late, and he was asked to get some Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:26:- water. He asked Sadique to collect some water and Sadique brought some water and PW3 told him that nothing has happened and he will be taken to hospital. When he was given water, Jabbar asked them not to pour water into his nose. He drank water. At that time, Rahim, Ashraf and Shareef came. PW3 asked him who had done it and Jabbar told him that Nilagiri Moinji and four five persons had done it. He identifies first accused as Nilagiri Moinji. Jabbar then asked him whether he has a jeep or car. He told that he has a jeep. He asked PW3 to call Badiadukka Ikku. He did not have his number. The idea was to bring a better vehicle. PW3 told him that they have no time and took him in the jeep. They took him in the jeep and he was laid in the platform with his head near the driving seat. Blood was oozing from his wounds. PW3 was driving the vehicle. In addition to him, Samad, Rahim and Ashraf were sitting in the front seat. Shareef was sitting behind. When the vehicle proceeded a little, as the vehicle was slanting, Raheem was asked to sit behind with Jabbar's head on his lap. He did so. Vehicle proceeded towards Kasargod. When they reached Arinjuri, Jabbar asked for more water. They stopped near a house. They did not get water as nobody opened the house. Jabbar said it Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:27:- is getting delayed and will proceed. They moved forward. That time Jabbar said that he wants to talk to Radhakrishnan Master. Jabbar's phone was ringing in his pocket. Initially, they did not take it. When Jabbar told that they should call Radhakrishnan Master, his phone was taken from his pocket. Jabbar asked to call Radhakrishnan Master and that the number is same. Rahim dialled the number and it was given to Jabbar. Two three times it got disconnected. Jabbar was speaking in Tulu language. PW3 heard him clearly. He was saying that Moinji and four-five persons have inflicted injuries on him and while doing so, they were saying that this would happen if you play with Sudhakaran Master and Naduvil Abdulla Kunji. When they were talking they were mentioning the name of Yesu, Mahesh and Ravi. PW3 further deposed that he knew Naduvil Abdulla and he identifies him as A6. He also knew Sudhakaran Master whom he identifies as A4, He stated that Jabbar again asked for water. When they reached Karimbila, they stopped in front of a house. Samad and Ashraf came back with a mug of water and water was given. He drank about 3/4[th] of the mug and the balance water was poured on his head. Thereafter they proceeded 6 kms and reached Santhi Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:28:- Nursing Home. Nobody got up and therefore they proceeded to Kasargod. In between they stopped at E.K.Nayanar hospital. A person asked them to take Jabbar to Carewell hospital or to Mangalapuram. He took Jabbar to Carewell Hospital. They took him in a stretcher inside the hospital. At that time Radhakrishnan Master and others came and went inside. Doctor came out and declared that Jabbar was dead. It was 12 midnight. PW3 informed the matter to his brother Shareef. In the meantime Circle Inspector Premraj came. He called PW3 who narrated the incident to him. At that time, a phone came for Radhakrishnan. He came to the Circle Inspector. They heard the first accused speaking over phone in the loudspeaker. Phone was given to Circle Inspector. Everyone could hear the call. Moinji said that he had taken the hands and leg of Jabbar and that next he will take him, Sheikh Ali and Kuriyadukka Abdulla. After that Mahin asked him to show the Sub Inspector the place of incident. He proceeded to the police station along with Mahin and he went along with the SI and shown the place. He further deposed that his statement was recorded and that he had not given a copy of the First Information Report. The First Information Statement was marked as Ext.P5. He further Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:29:- deposed that when CBI read over the FIS to him, he understood that several details were not mentioned and Abdulla Kunji's and Sudharkaran Master's name were not seen. He had not given the address and age of Nilagiri Moinji as he did not know. He also said that he had heard Jabbar talking to Radhakrishnan Master and the contrary statement in Ext.P5 is not correct. He also stated that the time of death 11.10 is not correct. That was the time when Jabbar was found out at the place where he suffered injury. He further deposed that Jabbar's phone was given to him by his brother Shareef and the next day Shareef had given it to Badiadukka police station. Thereafter he had not seen the mobile phone. 14. PW4 is Radhakrishna Nayak known as Radhakrishnan Master. He deposed that on 3/11/2009, he came back from Bangalore and reached Perla by about 7.30-8.00. He tried to contact Jabbar during the morning itself. He contacted Jabbar several times in the morning. Jabbar's mobile number was 9745374607. Jabbar had other numbers which he had saved in his phone. During the relevant time PW4's mobile numbers were 9447417306 and 9745112239. He had a Karnataka sim which was 9739606798. He further deposed that he had to pay wages to his Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:30:- workers in the estate and for that purpose he contacted Jabbar and requested for `5,000/-. Jabbar offered to pay him directly and he told PW4 that he was at Ukkinadukka. PW4 proceeded in his car to Ukkinadukka. When he was about to reach, Jabbar called and informed him that he was in a red Indica car in Benputhadukka road. It was about 10.30 p.m. PW4 proceeded to Benputhadukka road. He was coming from Perla road. He entered Benputhadukka road. At that time, he saw a Scorpio vehicle leaving the place. He stationed his vehicle parallelly to the Indica car facing Benputhadukka. Jabbar got down from the driver seat of Indica car and they were standing on the back side of his car. They saw a Santro car coming from the side of Ukkinadukka. It was a fully loaded car with full of people. It passed on. After a little time, the Santro car came back and proceeded towards Ukkinadukka. Jabbar paid him the money. He took it and proceeded towards the estate which is en-route Benputhadukka. When he was about to reach the estate, he received a call from Jabbar asking him whether he should wait and whether he is afraid of any vehicles. PW4 asked them to leave as Subair (PW5) was also in the car. He paid the money to the estate writer. That Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:31:- was about 10.45 p.m and thereafter he went back to his house. On the way back, he saw the Indica car with headlight on in the Benputhadukka towards Ukkinadukka road. He stopped near the car and sounded his horn. There was nobody in the car. He tried to ring Jabbar in his mobile. He assumed that Jabbar would have gone on the top of the rock for having food. Proceeding on that basis, he went home. On the way, when he reached Thudiadukka, Subair called him. He took the phone. But, whatever Subair said was not audible. He was driving the vehicle. He thought it was a range problem. Therefore he called back Jabbar in his phone. He rang several times and nobody took it. By the time he reached home, he called Subair and Subair told him that Santro car came back and attacked them. He escaped. The persons in the Santro car had attacked them and Jabbar is not seen. At that time his brother Somasekharan came near. His brother told him that Jabbar is lying wounded. He asked his brother to come to Kumbala with necessary money. If he is serious, he has to be taken to Managalapuram and he proceeded to the place of occurrence. He also called his relative Ananthakrishnan. He asked him to come near Badrampalla bus stand. By the time, he reached the road, he Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:32:- received a call from Jabbar's telephone. It was 11.10 p.m. When he took the phone, it got disconnected. He called back and talked to Jabbar. He had talked in Tulu language. Jabbar told that “ . . . പനരകത്തെ കണ്ട കകൊർ തണിരണിച്ചു വന ആക്രമണിച്ചു കമകൊയണി ഉണ്ടകൊയണിരുന Sudhakaran Master ഓടുണ നടുവണിൽ Abdulla Kunji പയകൊടുണ എതണിർത്തെകൊൽ = കളണിചകൊൽ ഇതകൊണ ഗതണി എന കവടണിയവർ പറഞ എന പറഞ . call cut ആക്കണി ". He called again for some time, it was busy. Thereafter he got him. He asked him who else where there and Jabbar said Ravi, Mahesh and Yesu. He heard them talking to each other. Again the call got disconnected. He tried again. Somebody else took the phone. PW4 was proceeding towards Ukkinadukka. Ananthakrishnan got into the car. He proceeded to Carewell hospital and understood that Jabbar was dead. At that time, he received another call. It was first accused Moinji. Moinji told “ ജബകൊറണിനു പണണി കകകൊടുത്തു. അടുത് Shekkali യണ കറണിയടുക്ക Abdulla യണ നനീയണ ആണ.” He was also abused and he disconnected the phone. At that time, the Circle Inspector Sri.Premraj came to the place. Moinji again called. He put the phone in the loudspeaker Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:33:- and gave it to Sri.Premraj. Moinji said the same thing. By the time, the phone got disconnected. He mentioned the entire matters to the Circle Inspector on the same day. One Vinod had recorded the entire thing. He does not know what was recorded by the police. They did not read it to him. He identifies A1, A4 and A6. He also stated that A4 and A6 had political rivalry against Jabbar. He also stated that when there was a Kerala March by the KPCC President, there was a conflict between members of Congress and CPM. They were throwing stones against each other. On the same day, Congress members threw stones at the house of Sudhakaran Master who was the CPM Area Secretary. He along with Jabbar was proceeding with the march. Next day, CPM members destroyed the Vindhya textiles belonging to his brother Somasekharan. He further deposed that police had taken case without including A4 and A6 as accused against which members of the Youth Congress including Jabbar conducted a protest strike. He further deposed that if Jabbar was alive, they had thought that Congress party will have a march over their party. He also narrated certain other incidents to narrate that the local CPI(M) member has an axe to grind against Jabbar. Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:34:- 15. PW6 is Abdul Rahman who was also in the jeep in which Jabbar was taken to the hospital. He turned hostile. PW7 D.Ashraf deposed that he knew the accused. He identified accused Nos.3, 5, 8, 9, 10, 11, 12 and 7. He turned hostile to the prosecution. PW8 is Mohammed Ashraf. He identified accused Nos.5, 9, 8, 13, 11 and 7. He denied having seen all the accused together in a car a few days before Jabbar died. He turned hostile. 16. PW9 was along with Jabbar when he was taken to the hospital. He also supported the version that Jabbar asked for water and he was taken in the jeep to the hospital and on the way his phone rang and Jabbar talked to Radhakrishnan Master (PW4). Jabbar talked in Tulu language and was mentioning the names of Naduvil Abdulla, Sudhakaran Master, Nilagiri Moideen, Yesu, Mahesh and Ravi. Rahman while giving evidence as PW6 however deposed that he had talked to Sudhakaran Master and it was not Jabbar which fact was denied by PW9. 17. PW10 turned hostile. He was asked whether he had given a Santro car. He along with Sri.D.Ashraf on the request of the 5[th] accused gave a Santro car to Yeshwant. He denied the said suggestion and he was declared hostile. Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:35:- 18. PW11 Abdul Nazir is also a person who had gone to the place where Jabbar was injured on 3/11/2009. He deposed that he saw the Indica car and its headlights were on. There was nobody in the car. The backside glass of the car was broken. The front door near the driver seat was damaged. When he reached there, his brother Arif reached the place initially. Nobody had come with jeep. There was no one. He heard some noise by the side of acacia trees. He could not get down. It was dark. He did not have torch. He waited by the side of road. At that time, Arif came in a jeep along with Sadique and Samad. Thereafter, Karim, Rahim, Ashraf and Shareef came in a bike. Torch was brought by the persons who had come in the jeep. They got down and saw Jabbar who was injured. He also supported the version of PW3. He along with Kareem went behind the jeep in a motorbike. 19. The fact that Jabbar was severely injured in a crime committed by certain persons cannot be disputed on account of the fact that after the incident he was taken to Carewell Hospital and PW51 Doctor declared that he was brought dead. Ext.P62 is the wound certificate issued by PW51. In the wound certificate is recorded at 12 am on 4/11/2009 and that the patient was brought Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:36:- dead to Casualty. The allegation was assault by a group of people with knife and thalvar at Ukkinadukka at 11.15 pm on 3/11/2009 - “Brought by friends around 10 members”. 20. PW52 Doctor has conducted postmortem of the victim and Ext.P64 is the postmortem certificate. Ext.P64 would show that there were 25 ante-mortem injuries. The Doctor opined that the victim died of wound from multiple chop wounds which he had sustained. During evidence, PW52 deposed that he died of bleeding from the multiple chop wounds but the major blood vessels were not cut, so that the bleeding will take place till then. He also deposed that the time of death will depend upon several factors such as if the patient is anemic, death will be fast, whereas in a healthy person, the death will be delayed. He will not be surprised if the injured survive for 2 or 2 ½ hours. He also stated that injury nos. 1 to 4 are not fatal. In regard to the 5[th] injury, he deposed that the cause of injury could be a blunt weapon having a rough surface. MO10 and companion iron rods can cause such an injury. With reference to injury Nos.6, 7, 8 and 20, according to him, those were the fatal injuries which can be caused by MO1 and 2 weapons or weapons like that. Injury Nos.9 Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 **==> picture [27 x 9] intentionally omitted <==** and 10 can be caused by a single blow and injury Nos. 11 to 13 by the pointed tip of MOs 1 and 2. Injury No.14 can be caused by stamping with a sole chappel. Injury Nos.15, 16 and 17 could be caused by tip of MOs 1 and 2. Injury NO.16 is not a tip only, it is a little more. Injury Nos.18 and 20 could be caused by blade portion of Mos 1 and 2. Injury 20 can be caused by MOs 1 and 2 and while inflicting injury No.20, the victim will be lying on the floor. He also stated that Injury Nos. 21 and 22 can be caused by Mos 1 and 2. Injury No.23 can be caused if that part of the skin comes in contact with a rough surface. Injury Nos.24 and 25 can lbe caused by Mos 1 and 2. 21. The fact that Jabbar died on account of the injury sustained by him is not disputed. The dispute raised by learned counsel for appellants is with regard to the commission of crime and the finding of criminal conspiracy involving accused 4 and 6. 22. Common argument for the learned counsel appearing for the appellants is that, from the nature of injury sustained by the deceased, there is no possibility of deceased giving a dying declaration. The entire area in which the deceased was found were blood soaked. He was bleeding profusely and in all Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:38:- probability, he would have died even before anyone reached the site itself. 23. PW66 is the first person to have seen the accused after the injury. He deposed that he knew Jabbar and he last saw him on 3/11/2009. There is a pit near Benputhadukka road in between accasia trees. At about 10.45-11.00, he heard some noise and looked at the said place. He was accompanied by his brothers Abdulla and Hameed. Jabbar was sitting supporting on a tree. On seeing them, Jabbar asked them to take him to a hospital. Then he asked for water. Hameed bought him water. He did not say as to what happened nor did he say as to who had inflicted the injuries. They got afraid and came back. He called Baliga Abdulla, who sent a jeep and he was taken to the hospital. In cross examination, he affirmed that he heard the noise at 11.00. He said after seeing Jabbar, he gave him water and then informed others. He was afraid. He also stated that his house was immediately opposite to where Jabbar was lying. On the other side of the road there is another house and quarters nearby his house. There are no other houses. At that time when they saw him, Jabbar was bleeding. Since it was night, he could not identify Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 **==> picture [27 x 9] intentionally omitted <==** whether there was blood in the nearby leaves and shrubs. He drank a full cup of water. The only contradiction marked in his deposition is whether he had called loud to alert others in the neighbourhood which was marked as Ext.D43. According to him, he did not make much sound as there was no one else in the locality. The evidence of PW66 is supported by the deposition of PW3, PW6, PW9 and PW11 who had taken him to hospital. They deposed that on the way to hospital Jabbar asked for water which they gave and before drinking water, PW3, PW9 and PW11 deposed that Jabbar had talked to PW4 over phone. 24. One aspect which was highlighted by the counsel for appellants is regarding the time at which Jabbar was found and also the time of death. PW51 Doctor has recorded in Ext.P62 that the victim was brought to the hospital at 11.15 p.m on 3/11/2009. PW66 Assainar had deposed that he saw the victim at about 10.45-11.00 and in Ext.D43, he had given the time as 11.00. Evidence of PW3, PW4, PW5, PW6, PW9 and PW11 would indicate that the victim suffered injury between 10.30 and 11.00 p.m. Even assuming that Carewell Hospital is a little away from the place of occurrence, it might be an instance where the time of Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:40:- actual injury or incident was not correctly stated by the witnesses with precision. Therefore, the difference in the time mentioned by either of the witnesses will not enable the defence to contend that Jabbar was not alive and he was not in a position to speak. 25. The next contention urged by the learned counsel for first accused and of course supported by other counsel is that Jabbar would not have survived the injuries at least for half an hour and he would have been dead even at the time when PW66 had seen him. In order to substantiate the above contention, reliance is placed on the cross examination of PW52. During cross examination, the main thrust was that if the accused had suffered such injuries, he would have become unconscious immediately especially on account of the fact that there was sub arachnoid bleeding. However, the injury No.4 is the concerned injury to the head, which reads as under:- _“4. Incised wound 9x1.5cm, obliquely placed on the left side of top of head, the front outer end being 6cm above injury No.3. A segment of bone 6.5x1.5cm was cut away, exposing the dura. Underneath injuries 1 to 4, the dura was intact. Brain showed a thin film of bilateral subarachnoid bleeding.”_ ## 26. But to a pointed question, PW52 had answered that he Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:41:- does not agree that sub arachnoid bleeding will definitely cause unconsciousness, because it not a thick layer of bleeding and it is not an indication of an injury to the brain. According to him, injury 1 to 4 were not fatal. It is further argued that when three arteries were cut as evident from injury No.6, by which the right hand had got separated and the vessels and bones were severed and there is indication in injury No.8 that three blood vessels viz, the radial artery, ulnar artery and anterior interosceus artery were severed, the Doctor answered that only the terminal branches of the arteries were cut and severed and the injury was in the palm. PW52 was very categoric when he said that only the anterior tibial artery, posterior tibial artery and peroneal artery were cut and severed which are medium sized arteries. He also stated that radial artery and ulnar artery are also medium sized. Further cross examination proceeded on the basis that when there is profuse bleeding, especially when there is complete severance of 9 medium sized arteries, the victim will die within one minute. The Doctor answered that it is not correct. He opined that when bleeding starts, then a physiological mechanism in the body to prevent adverse effects of bleeding like spasm of the cut vessel, Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:42:- redistribution of a whole blood starts, so that vital parts are spared of the effects of bleeding. In that case, death will not be fast. Though a question was asked that 1 litre of blood would have been lost within a minute after sustaining the said injuries, Doctor opined that there is no finding to support such a view and he can only say that large amount of blood had been lost when he died. Though a question was put that the victim would have survived only for 5 minutes, Doctor disagreed with the said suggestion. It is also stated that he was not informed about the blood collected at the scene. He also stated that the spasm will remain for long and that is the process by which bleeding is arrested. If a major artery is not cut, spasm will control bleeding which is one of the mechanisms to prevent major bleeding. During further cross examination, he stated that if 2 litres of blood is lost, the victim may enter irreversible shock however if the bleeding is slow, he will not go into shock as the body makes compensatory mechanism to correct the shock. He also stated that spasm and closure of the wound is more possible when a blood vessel is cut into two. 27. Despite detailed cross examination of PW52, nothing Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:43:- has been brought out to indicate that the victim would have died immediately after the injuries due to bleeding, whereas, the evidence of PW52 clearly indicates that he could survive for some time. The expert evidence of PW52 further strengthens the deposition of PW66, PW3, PW4, PW6, PW9 and PW11 that they have talked to him and he was alive when they saw Jabbar. Therefore having found that Jabbar was alive immediately after the injury and he was declared dead only at the hospital stands proved. 28. Now the question is regarding the complicity of the accused to the crime. 29. The first argument raised by learned counsel for appellants is that the evidence of PW1 and PW2 have not been corroborated in any manner. They were treated as approvers and in the absence of any corroboration, their evidence is worthless. They have also in their deposition stated that they have nothing to do with the crime. It is therefore argued that their evidence has to be rejected in toto. Therefore, presently we do not intend to consider the evidence of PW1 and PW2. Let us examine whether even without relying upon the evidence of PWs 1 and 2, Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:44:- the prosecution had proved the case against the accused. 30. The Trial Court had convicted accused Nos.1, 8, 10, 12 and 13 on account of the fact that they were involved in the actual crime. Accused 4 and 6 were convicted as conspirators to the crime. The first question that may arise for consideration based on the arguments of the learned counsel appearing for accused 1, 8, 10 12 and 13 are with reference to identity of the accused. As far as first accused is concerned, PW5 who claims to have been along with Jabbar while he was in the Indica car at the time of incident knew him beforehand. As far as the other accused is concerned viz., accused 8, 10, 12 and 13, the prosecution purely relies upon the testimony of PW5, the identification parade conducted and the dying declaration of Jabbar. 31. The first argument is that PW5's presence in the car itself is doubtful. But there is reason to believe his version as he was along with Jabbar from the morning itself as evident from his deposition. He further deposed that he was sitting in the front left seat of the car and Jabbar in the driving seat. At that time, PW4 Radhakrishna Nayak came in his Wagon R. That was at about 10.40. One disparity which was pointed out by the learned Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:45:- counsel appearing for accused 8, 10 and 12 is that in the chief examination itself, PW5 stated that at the time when the Santro car hit the Indica car, he had taken a 'U' turn of the vehicle whereas later on he was saying that the Santro car hit near the driver's seat of the Indica car. He escaped through the left side door and behind him Jabbar got out. But the argument is that he could not even recollect whether he was actually in the driver's seat or in the seat beside the driver. In cross examination, he stated that it is after he alighted from the car that Jabbar had got down. 32. PW4 in his evidence clearly indicates that when he met Jabbar on the said day, PW5 was along with him. Therefore, the presence of PW5 at the time when a group of people attacked the deceased by hitting on the Indica car cannot be disputed. 33. The next argument raised is regarding identification of the accused. PW5 in his evidence had identified the accused. He had deposed that he saw Moinji @ Nilagiri Moinji who was a native of his place in the car whom he identified as the first accused. He is the person who had uttered to the others to cause the injury. He also identified the 10[th] accused. He had given his description as a Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:46:- fair and thin person who was sitting in the driver's seat. He thereafter identifies a tall person who came with a bill hook. Somebody called that person by name Mahesh. He identified Mahesh in the box as A12. Another person came with a sword whom he identified as 8[th] accused. A person who came with the iron rod was identified as A13. 34. Counsel for accused 1, 8, 10, 12 and 13 argued that there was no light in the area to identify any of those accused. PW5 would not even have identified the weapons MO1, MO2 and MO10. But it could be seen that the light of Indica car was on. Santro car came and hit on the side of the Indica car. The internal light of the Santro car was available. He had no difficulty in identifying first accused. He could see the 10[th] accused getting out of the car who was driving the Santro car. He could identify the 12[th] accused who was about to hit him with a bill hook and the 8[th] accused who was having a sword with him. They were also calling the name Mahesh, Yesu and Ravi. 35. The accused who were sitting in the car were very close to the Indica car while Jabbar and PW5 were sitting in the car and therefore, it was not difficult for him to identify them. That Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:47:- apart, a Test Identification Parade was conducted by the police in the presence of learned Magistrate. While conducting the TIP, PW5 could not identify A13, Yaswanath. As per the report, he was showing a person by name Shylan as A13. When he was asked about the same, he said persons with similar face and having similarity were arrayed for the TIP. 36. Therefore when PW5 has clearly identified accused 1, 8, 10 and 12, we do not think that there is any necessity to disbelieve the said version. Learned senior counsel for accused 8, 10 and 12 further argued that there is no indication of presence of A8, A10 and A12 in the inquest report. The inquest report has been marked as Ext.P96. The statements in the inquest report are essentially for the purpose of further investigation into the matter and cannot be treated as the last word in conducting further investigation to find out as to who were involved in the crime. Therefore, the contention that there was no mention about the presence of the accused in the inquest report by itself cannot be a reason to discard the evidence of PW5. Therefore, we have to proceed on the basis that accused 1, 8, 10 and 12 were persons who attacked the deceased on the fateful day and those were the Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:48:- persons who were running after Jabbar when PW5 last saw him. As far as the 13[th] accused is concerned, during TIP, he was not identified. We shall consider his involvement in the crime in due course. 37. Yet another material relied upon by the prosecution is the recovery of murder weapons based on the confession statement of the accused. The weapons MO1 and MO2 were recovered based on the disclosure statement by the first accused. MO10 and MO28 iron rods were recovered and Ext.P142 is the mahazar prepared for the same. The 12[th] accused Mahesh has given the disclosure statement to PW18 wherein he had stated that he had placed the two iron rods below a potted grass plant inside the wooden shelf fixed to the wall of his kitchen and that he will take it and give it to them. The counsel appearing for 12[th] accused submitted that it is not a proper recovery as the accused himself is a signatory to Ext.P142 mahazar. Necessarily, Ext.P142 mahazar has to be ignored. But the fact that the 12[th] accused had given disclosure statement pursuant to which the iron rods were recovered can be treated as evidence u/s 27 of the Indian Evidence Act. Similar is the recovery of MO1 and MO2 on the Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:49:- basis of disclosure statement given by the first accused. The disclosure statement of A1 is evident from Ext.P98 wherein he had stated that he had kept the knives below the root of a tree at Marakkani in Punachi Village in Karnataka and that if he is taken, he will take it and give it to them. It is pursuant to the said statement that PW75 had taken him to the said place and MOs 1 and 2 were handed over to PW75 who seized the same under Ext.P43 mahazar. PW33 is an attesting witness to the seizure mahazar and he supported the prosecution that the recovery was made as stated so. One contention urged by the learned counsel for first accused is that the witness PW33 is from a far away place and there was no reason why he was taken to Marakkani in Karnataka to witness the recovery. Therefore, it is contended that the recovery is absolutely baseless and the evidence of PW33 cannot be taken on record. But it is relevant to note that it is the disclosure statement and the recovery pursuant to the same that is evidence. Even assuming that PW33's evidence is not available, if the evidence of the investigating officer PW75 is believable, there is nothing wrong in the court accepting the said evidence. Further it could be seen that first accused has purchased MO1 and Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:50:- MO2 from a concern by name Coorg Enterprises. This fact had been spoken to by PW47 Arun Kumar. Ext.P58(a) is the carbon copy of the bill for the sale of MO1 and MO2. PW47 further identified the first accused. He deposed that first accused had come for purchasing the bill hooks a few days back. Since there was no stock, he had instructed him to come after two days. The first accused again came after a few days and purchased the same. He also stated that he remembered the first accused since he required a particular type of knife. The fact that PW5 had identified MOs 1 and 2 which were in the hand of the assailants at the relevant time and when it is proved that the first accused had purchased the same from PW47's shop, and that when the Doctor PW52 deposed that injuries on the deceased could be caused by such weapon, there is no reason why the complicity of the first accused to the crime cannot be fastened on him. 38. We have already found that when PW3 asked Jabbar when he first saw him and as to who had committed the crime, Jabbar had clearly pointed out the name of first accused and four five others. 39. In regard to the other accused, a contention had been Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:51:- urged by the learned counsel for accused 8, 10, 12 and 13 that PW5 and other witnesses were tutored. Contention is that the story had been invented by CBI as a different version has been spoken to when CBI started investigation. It is argued that PW5 ran for his life and therefore in that night hours he could not have identified the accused. Further PW5 says that he went to the house of Mehroos and Anvar. They are not examined in the case. It is also argued that based on Ext.D44 photograph, it is not borne out as to whether the Santro car was hit against the Indica car in a manner stated by the prosecution. But it could be seen that the contradictions which had been highlighted based on the investigation made by the local police may not be relevant to be considered especially on account of the fact that an investigation by CBI had been ordered and the final charge had been laid by CBI. Being a political murder, it was found that investigation by the local police may not suffice and therefore the investigation was entrusted to CBI. 40. The doubt expressed by the learned counsel with reference to identity of the accused is belied by the fact that a TIP was conducted in which PW5 had identified all the accused except Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:52:- A13. PW54 is the Magistrate in whose presence TIP was conducted. Deposition of the learned Magistrate would show that except A13, PW5 has identified all other accused present viz. A1, A8, A10 and A12. He has stated that all necessary precautions were taken in procuring the presence of several non suspects having resemblance with the suspects in various aspects of age, appearance, personality etc. so that an error feel TIP is conducted. The learned Magistrate further deposed that it is not a case of PW5 failing to identify A13, but instead PW5 had misidentified other person in the place of A13. His name was Shylan who had almost same physical appearance as that of Yaswanth. However, the Court below had come to a finding that PW5 had correctly identified A13 as Yaswanth who was seen carrying MO10 iron rod and running behind Jabbar. 41. Despite the argument of the learned counsel appearing for A1, A8, A10, A12 and A13 that PW5 cannot be believed, we do not think that there are any circumstance to disbelieve PW5 in any manner. That he had identified accused 8, 10 and 12 in the TIP and before Court is convincing enough to indicate that he was present along with Jabbar during the relevant time. He was in the Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:53:- car when the Santro car hit Indica car and he had occasion to see the person who was sitting in the Santro Car. He came out of the car and at that time, he saw the accused coming out of the car and one of them was about to inflict an injury to him and the other men called that he was not the person for whom they come. He ran away and when he looked back, he saw the accused running after Jabbar. Apart from identifying the accused, he identified the weapons used by them and two of the weapons MO1 and 2 have been proved to have been purchased by A1. Probably, it is within a short period between PW5 seeing Jabbar for the last time running across the road and the accused running after him, PW66 hears a loud cry and he along with few others went to the place where cry was heard and sees Jabbar fully injured and sitting by the side of a tree bleeding asking them to take him to hospital. He asked for water and they gave him water and they came back being afraid of the situation. He called Baliga Abdulla and informed the matter and immediately persons like PW3, PW6, PW9, PW11 etc., came to the scene of crime. From the evidence of PW3 it can be seen that when he asked Jabbar as to who had done it, he had only mentioned about first accused and Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:54:- four five others. 42. Yet another argument raised by counsel for A10 separately was that none of the witnesses have mentioned the name of A10 of being involved in the attack on Jabbar. The only evidence is that of PW5. Jabbar had mentioned to PW3 regarding first accused and four-five others. PW9 hears the name of A1, A4, A6, A8, A12 and A10. PW4 also hears the name of A1, A4, A6, A8, A12 and A13. In so far as the 10[th] accused is concerned, the only evidence is that of PW5 and unless his evidence is of sterling quality, a conviction cannot be based on his testimony alone. Further, it is contended that the TIP of the 10[th] accused on 6/9/2010 was conducted. 43. Learned counsel also placed reliance on the judgments in _**Musheer Khan v. State of Madhya Pradesh**_ (AIR 2010 SC 762), (2007 SC 1729) _**Md. Sajjad v. State of West Bengal**_ [2017 (1) KLD 260 (SC)], _**State of Maharashtra v. Syed Umar Sayed Abbas and Others**_ [(2016) 2 SCC (Cri) 457], Manzoor v. State of U.P. [(1982) SCC (Cri) 356] _**Iqbal and another v. State of U.P.**_ [(2015) 3 SCC (Cri) 301] and _**Caetano Piedade Fernandes and another v. Union Territory of Goa**_ [1977 SCC Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:55:- (Cri) 154]. Substantially, the above judgments relate to the conduct of TIP and the evidentiary value of eye witnesses. In _**Musheer Khan**_ (supra), the Apex Court held that the TIP conducted after a gap of over a month from the date of arrest of the accused cannot be relied upon unless the delay is properly explained. In _**Md.Sajjad**_ (supra) it was held that in a case where none of the witnesses disclosed any features of the accused for identification and the identification parade is conducted 25 days after the arrest, the said identification has to be viewed with suspicion. In _**Syed Umar Sayed Abbas**_ (supra) also it was held that when the evidence of witnesses suffer from various infirmities and contradictions and the TIP was not properly conducted and was delayed, the same would be fatal to prosecution. In _**Caetano Piedade Fernandes**_ (supra) also, the Apex Court observed that unless the person who is supposed to identify the assailants at the TIP gives evidence in regard to identification, it is not safe to rely upon such identification. In _**Iqbal**_ (supra), it was held that conviction cannot be based solely on identification of accused in TIP. Reliable evidence has to be adduced to prove the offence beyond reasonable doubt. There is Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:56:- no dispute about the propositions in the aforesaid judgments. Two aspects required to be considered. One is regarding the involvement of accused 8 and 12 and the other involvement of 10[th] accused. As far as accused 8 and 12 are concerned, they were properly identified by PW5 at the time when Jabbar was attacked. Despite effective cross examination, nothing has been brought out to indicate that he was giving false evidence before Court. Therefore, the involvement of accused Nos.8 and 12 is proved by necessary evidence. Their names were also mentioned at the time when the attack started. With reference to involvement of the 10[th] accused, his name was not mentioned either by Jabbar, PW3, PW4 or PW9. But, PW5 has identified him during the TIP and before Court. The contention that there was delay in conducting the TIP and therefore it cannot be taken in evidence is not sustainable. The identification parade was conducted after the arrest of the accused and in the presence of PW54. Even otherwise, PW5 had given the description of the accused whom he had seen at the time of commission of offence. In such circumstances, the involvement of accused 8, 10 and 12 cannot be doubted. The court below has therefore correctly found Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:57:- them having involved in the crime. 44. It is true that PW5 had identified A13 before Court. But he could not identify him when a TIP was conducted. The court below did not take the same as a weakness in prosecution case taking into account the deposition of PW54 that Shylan and A13 look almost similar. Other than the testimony of PW5 regarding the involvement of A13 and the name of A13 being heard during the attack on Jabbar, and the deposition that they had heard the name of “Yesu”, (which according to the prosecution is A13), there is no other evidence. Of course, it is true that A13 was identified before Court. But, when during TIP conducted twice, he identifies another person, a suspicion may arise as to whether PW5 has actually seen A13. In that event, in the absence of any other material, we are of the view that A13 is to be given the benefit of doubt and he is to be acquitted. 45. Learned counsel for the 13[th] accused supported the arguments raised by the accused 1, 8, 10 and 12. He specifically contended that A13 was not identified by PW5 and the reason stated by the Trial Court itself cannot be accepted. He relied upon the judgment of the Apex Court in _**Vaikuntam Chandrappa v.**_ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:58:- _**State of A.P.**_ [AIR 1960 SC 1340] and also a Division Bench judgment of this Court in _**Mohanan Nair and Others v. State of Kerala**_ [1989 (1) KLJ 467]. In the Supreme Court judgment, one of the issues raised was whether the identity of the assailants were correct or not. It was held that the purpose of TIP is to test that evidence and the safe route is the sole testimony of evidence in court in order to identity the accused who were strangers to the witnesses in which event it requires corroboration which should be in the form of an earlier identification proceeding. In _**Mohanan Nair**_ (supra) this court held that if a suspect is having any prominent or noteworthy marks on the basis of which he could be identified by a verbal description, even by a person who has not seen him earlier, it may be desirable to cover that marks by strips of paper without detriment to himself being recognized by other general features. It was held that it may not be proper to accept the identification of a witness who makes any mistakes. According to him, there is no evidence to implicate A13. 46. Now the question is regarding the involvement of accused 4 and 6. Learned counsel appearing for the 4[th] accused primarily argued that the prosecution has not proved the charges Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:59:- framed by court. The charge against A4 and A6 was that they had entered into a criminal conspiracy at Kasargode for murdering Jabbar for which they contacted the 5[th] accused through the 7[th] accused for execution of the conspiracy. In pursuance of the said conspiracy, A4 and A6, in October, 2009 contacted the first accused through A14 Shadeer for identifying Jabbar in order to engage the murderers and to own the responsibility of the murder. It is submitted that A5, A7 and A14 were acquitted as there was no proof of any conspiracy being hatched through them. In such circumstances, when that part of the charge is not proved, prosecution cannot point fingers against A4 and A6. It is further argued that the evidence of A2 and A3 who had turned approvers cannot be taken as evidence against A4 and A6 in the absence of any corroboration. The only evidence now projected by the prosecution is the presence of accused 4 and 6 at Rancha and that too from the evidence of PW1 and PW2. If their evidence cannot be accepted, there is nothing proved against A4 and A6. Further, evidence of PW1 and PW2 is not corroborated by any other evidence. It is argued that if a person is to be made an approver, he should own his involvement in the crime whereas Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:60:- their evidence indicate that they have not involved in any crime and they have not taken part in any of the transaction relating to the aforesaid crime. In so far as it is not an inculpatory statement, their category as approvers is lost and their evidence has no value. 47. The learned counsel placed reliance on the judgment of the Apex Court in _**Rampal Pithwa Rahidas v. State of Maharashtra**_ (1994 SCC (Cri) 851). That was a case in which the Apex Court found that the approver was a planted witness and the investigating agency had created false evidence and fabricated false clues. Hence, it was found that the evidence of approver was not reliable. Further, it was observed that his arrest itself was intrinsically unnatural and a self confessed participation in the crime without taking any active part is not acceptable. The approver has claimed to be a spectator of every fact and every moment asserted and he did not participate in the assault at any stage and remained standing at a distance taking care of the clothes of some of the accused. 48. Another judgment relied upon is _**Joga Gola v. State of Gujarat**_ (AIR 1982 SC 1227). In this case, the Apex Court Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:61:- considered the evidentiary value of an approver. That was a case in which the High Court relied upon the evidence of an approver since it was fully corroborated by the evidence of other witnesses. Supreme Court while setting aside the said judgment observed that from the evidence of approver, it would appear that his confession which preceded the pardon as a result of which he became approver was wholly exculpatory and the approver did not implicate himself in the murderous assault on the deceased persons. 49. Reference is made to judgment of a Division Bench of this Court in _**Pushpangadhan v. State of Kerala**_ (2004 (2) KLJ 217) wherein after analysing the scope and effect of approver's evidence, it is held that uncorroborated testimony of an approver cannot be the sole basis of conviction. It should satisfy the double test that is, his evidence must show that he is a reliable witness like any other witness and his evidence must receive sufficient corroboration. 50. After referring to the evidence of PW1 and PW2, it is submitted that their evidence is not believable as they were making out a story. In so far as they have not participated in any Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:62:- crime, they were falsely implicated as accused and thereafter they were converted as approvers. 51. The other connecting link which the prosecution has brought in, is the phone conversation between Jabbar and PW4 while Jabbar was taken in a jeep to the hospital. PW4 enquired with Jabbar as to who had committed the same and Jabbar told him that first accused was present and he was saying that “if you oppose and play with Sudhakaran Master and Abdulla Kunju, you will suffer like this”. When he again asked who else where there, he said Ravi, Mahesh and Yesu. The first argument is that this cannot be treated as the exact words spoken to by Jabbar. First of all, Jabbar was not in a physical condition to give such a statement. Secondly, there is disparity between the evidence of other witnesses. PW6 Abdul Rahman who was in the vehicle at the relevant time had deposed that when he reached the place where Jabbar got injured, Jabbar was taken inside the jeep by Nazar, Arif, Samad and Sadique. He also joined them. Shareef sat on the rear seat and he along with Samad and Ashraf got into the front seat. Arif was driving the jeep. Jabbar was not talking. He was severely injured and was bleeding. Arif asked him to go behind and give a Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:63:- support to Jabbar's head as there were several curves on the road and he asked him to keep the head upside. He went and sat behind. Jabbar asked for water when they reached a place Arinjuri. However, they did not get water. The phone of Jabbar rang. He took Jabbar's phone from his pocket. He rang Radhakrishnan master. But the phone got disconnected. Phone fell down. Thereafter he tried, he could not get. Thereafter, Master called back. He informed Master about the situation. He said Master did not speak to Jabbar. He alone spoke to Jabbar. He was declared hostile and cross examined. 52. PW3 in his evidence says that while they were on jeep, Jabbar wanted to call Radhakrishnan Master. Jabbar's phone was ringing in his pocket. Initially they did not take it. When Jabbar wanted Radhakrishnan Master to be called, he asked Rahim to take Jabbar's phone and called Radhakrishnan Master. Rahim dialled for Radhakrishnan Master and kept it near the ears of Jabbar. Two three times it got disconnected. Jabbar was talking in Tulu language. He was mentioning about Moinji and four five persons and at the time of inflicting injuries, they were mentioning that if you play around with Sudhakaran Master and Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:64:- Naduvil Abdulla Kunji, this will be the result. When they were talking, he was mentioning about Yesu, Mahesh and Ravi **.** PW9 in his evidence also deposed that he heard Jabbar talking over phone to Radhakrishnan Master. He was mentioning the name of Abdulla, Sudhakaran Master, Nilagiri Moideen, Yesu, Mahesh and Ravi. He heard him talking to Radhakrishnan Master in Tulu language. He does not know Tulu. It is therefore contended that there is no consistent statement though PW3 and PW9 deposed that they heard Jabbar talking to PW4. PW6 Rahman says that he had talked to PW4 and the details were given. It is therefore submitted that such an evidence is not reliable. 53. Another argument raised is that there is disparity in the time. In Ext.P62, it is stated that Jabbar was brought to the Carewell hospital at 11.15 whereas PW66 in his evidence states that he saw Jabbar between 10.45 and 11 pm severely injured. According to PW3, in Ext.P5, the time of death is around 11.10 p.m .The alleged talk between Jabbar and PW4 takes place at 11.27 p.m. The call details of Radhakrishnan Master Ext.P76(A) would indicate that he was calling by 11.10 p.m. The evidence is that from the place of occurrence, it may take at least ½ an hour Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:65:- to reach Carewell Hospital. Therefore, the exact time at which the dying declaration was given by Jabbar is full of discrepancy. The only indication available is the said dying declaration allegedly spoken to by Jabbar to PW4. Others were only overhearing and none has stated the exact words of Jabbar. Further it is argued that S.32 has no application to implicate accused 4 and 6. 54. The learned senior counsel further referred to a judgment of the Apex Court in _**Waikhom Yaima Singh v. State of Manipur**_ (2011 CRI.L.J.2673). This judgment is cited to emphasize that oral dying declaration is a weak kind of evidence where exact words uttered by the deceased are not available. Unless such a dying declaration is proved to be wholly reliable, voluntary and truthful and further that the maker there of is in a fit medical condition to make it, the oral dying declaration is a weak kind of evidence. That was a case in which the Apex Court observed that when the exact words of dying declaration are not available, which differs from witness to witness, it is not safe to rely upon the same for a conviction. He also referred to judgments of the Apex Court in _**Dalip Singh v. State of Punjab**_ (AIR 1979 SC 1173). That was a case in which Apex Court Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:66:- observed that there were two dying declarations, one oral and the other written. Oral dying declaration was made to PW11 and the other by the police. In that case, Apex Court was considering the effect of a dying declaration recorded by police officer during investigation, which has no application to the present case. In _**Godhu v. State of Rajasthan**_ (AIR 1974 SC 2188), the Apex Court was considering an instance where one part of the dying declaration was found to be false. It was held that in cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part, that it is not possible to sever the two parts, the court would be justified in rejecting the whole of the dying declaration. In _**Pakala Narayana Swami v. Emperor**_ (AIR 39 Privy Council 47), Privy Council had occasion to consider the meaning of the phrase “circumstance of the transaction” in terms of S.32(1) of the Evidence Act. It was held that it is not as broad as the analogous use in circumstantial evidence which includes evidence of all relevant facts. It is narrower than res gestae. Circumstances must have some proximate relation to the actual occurrence and must be of transaction which resulted in the death of the declarant. It is not Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:67:- necessary that there should be a known transaction other than that the death of the declarant has been ultimately caused for the condition of admissibility of the evidence is that “cause of (the declarants) death comes into question”. In _**Babubhai Bhimabhai**_ _**Bokhiria v. State of Gujarat**_ (AIR 2014 SC 2228) a note was prepared by the victim, that another person want to kill him due to personal differences and if he dies, a thorough investigation has to be done regarding the threatening calls that he was receiving. The question was whether it amounted to a dying declaration. After considering the materials placed on record and relying upon the judgments of _**Pakala Narayana Swami**_ (supra) and other judgments, it was held that since the note written by the deceased does not relate to the cause of his death or to any of the circumstances with reference to the transaction which resulted in his death, it is inadmissible in law. _**Rasheed Beg and Others v. State of Madhya Pradesh**_ [(1974) 4 SCC 264] is relied upon to indicate that dying declarations made under suspicious circumstances requires corroboration. 55. It is submitted that even assuming that Jabbar had talked to PW4 over telephone, at best, the circumstances under Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:68:- which the death was caused can be evidence is only regarding the cause of his death or any of the circumstances of the transaction which resulted in his death. But here, learned counsel submits that while inflicting injury, the assailants were mentioning that if you play around A4 and A6, this will be the result which statement is not relating to either his cause of death or any of the circumstances of the transaction which results in his death. Further it is argued based on the judgment in _**John Pandian v. State**_ [(2010) 14 SCC 129] as to what would amount to criminal conspiracy u/s 120B. In the said judgment, the manner in which a case relating to conspiracy has to be considered has been detailed in paragraphs 106 to 116. _“106. In spite of the concurrent judgment of the trial and the appellate court in this case, more particularly, against Accused 2 (Sivakumar), 4 (Ubaiadulla), 5 (Yusuf), 6 (Abdul Kareem), and 7 (John Pandian) we had to consider the evidence afresh as we are not satisfied with the appreciation of the evidence at the trial and appellate stage. We find from the judgment that the courts below have committed an error in first holding the existence of conspiracy and proceeding on that basis and then taking titbits in evidence to suggest that those titbits would connect the accused with the conspiracy as the conspirators._ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ## -:69:- _107. The law on conspiracy has been stated time and again by this Court. In Major E.G. Barsay v. State of Bombay, Subba Rao, J. observed: (AIR p. 1778, para 31) “31. … The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act.”_ _108. In Halsbury’s Laws of England[*] the definition of conspiracy is as under:_ _“58. Meaning of conspiracy.—Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law…._ _The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. … and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be.”_ _109. In American Jurisprudence, 2nd Edn., Vol. 16, p. 129, the following definition of conspiracy is given:_ _“A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful… The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy.”_ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:70:- _110. Lastly, in the celebrated case of Kehar Singh v. State (Delhi Admn.) it was observed by Jagannatha Shetty, J.: (SCC p. 731, para 271)_ _“271. … ‘The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.’[**] ”_ _111. In the celebrated judgment of State v. Nalini S.S.M. Mohd. Quadri, J. relying upon Van Riper v. United States observed:_ _“When men enter into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime.”_ _112. Other celebrated decisions on the question of conspiracy are Yash Pal Mittal v. State of Punjab as also State of H.P. v. Krishan Lal Pardhan. It has been held in Mohd. Khalid v. State of W.B. and in Mohd. Usman Mohd._ _Hussain Maniyar v. State of Maharashtra_ ~~_t_~~ _hat the agreement amongst the conspirators can be inferred by necessary implication. All these cases together came to be considered in State (NCT of Delhi) v. Navjot Sandhu where even the celebrated judgment of V.C. Shukla v._ _State (Delhi Admn.)_ ~~_c_~~ _ame to be considered wherein it was observed by Fazal Ali, J.: (V.C. Shukla case, SCC pp. 669-70, para 8)_ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ## -:71:- _“8. … in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.”_ _(emphasis supplied)_ _113. It is significant at this stage to note the observations in V.C. Shukla wherein it was laid that in order 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. It was further held that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence._ _114. Relying on V.C. Shukla case, Pasayat, J. in Esher Singh v. State of A.P. observed that: (Esher Singh case, SCC p. 607, para 38)_ _“38. … 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 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_ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ## -:72:- _be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied on for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy.” (emphasis supplied)_ _115. In Esher Singh case this Court held that the conspiracy was proved between the nine accused. A systematic role played by each accused was highlighted. Pasayat, J. in that judgment also considered the decision in Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra and observed that (Esher Singh case, SCC p. 606, para 37) “[t]here is no difference between the mode of proof of the offence of conspiracy and that of any other offence”. The other decisions in State of Maharashtra v. Som Nath Thapa, Ajay Aggarwal v. Union of India as also Mohd. Usman case and Yash Pal Mittal were considered in that decision. The law laid down in Ajay Aggarwal case was reiterated and it was held that: (Esher Singh case, SCC p. 610, para 45)_ _“45. … ‘8. … It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.’[***]_ ~~_”_~~ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ## -:73:- _These decisions were thereafter considered in Navjot Sandhu case._ _116. In K.R. Purushothaman v. State of Kerala a specific observation was made (SCC p. 631d-e) to the effect that all conspirators need not take active part in the commission of each and every conspiratorial act but, mere knowledge, even discussion, of the plan would not constitute conspiracy. It was further observed that (SCC p. 631e-f) each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible. We respectfully agree with the law laid down in Navjot Sandhu case and K.R. Purushothaman case.”_ 56. Learned senior counsel appearing for the 6[th] accused submitted that the evidence of PW1 and PW2 is not at all admissible as they have no personal knowledge about what exactly had happened. Even if their whole evidence is said, it is only hearsay and there is no corroboration as far as their evidence is concerned. PW32 Abdul Razak who is said to have accompanied them while on their trip has turned hostile. The only statement made by PW1 and PW2 is that they have seen accused 4 and 6 at Rancha. Ext.P16 are the call details of A4 and A6 which does not Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:74:- show that they were at Rancha during the said time. The phone was at Kannur itself as spoken to by PW49. It is contended that A6's phone was in the name of Saleena as stated in Ext.P145. PW80 says that the said phone was used by A6. Other than the oral assertion of the investigating officer, there is nothing to connect the call details in Ext.P145 to A6. Another evidence relied upon is that A6 had sent money to first accused's wife through 14[th] accused. The account details are produced as Ext.P17. There is a deposit of `5,000/- on 31/10/2009 and `1,000/- on 4/11/2009, but, there is no material to indicate as to who had deposited the said amount. Therefore the said account details are totally irrelevant. Other witnesses who was to speak about A6 are PW14, 15 and 16, who have turned hostile to the prosecution. He also argued that the so called dying declaration cannot be believed. First of all, during inquest, nothing has been stated about any such dying declaration and it is a subsequently cooked up story. Learned counsel further argued that PW6 Abdul Rahman turned hostile when he was examined on 19/12/2011 and PW9, his brother Abdul Samad was to be examined on the same day. The prosecution got an adjournment and thereafter he was examined Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:75:- only on 21/12/2011. According to him, there is substantial variation in the evidence which relates to the alleged dying declaration. Further the phone of Jabbar was not ceased. Even otherwise, no call details from the said phone of Jabbar was forthcoming. ExtP76(E) are the call details of Shareef which was proved by PW65. But he was not examined. Learned counsel also placed reliance on the following judgments:- (i) _**Kajal Sen v. State of Assam**_ [(2002) 2 SCC 551] (ii) _**Kashi Vishwanath v. State of Karnataka**_ [(2013) 7 SCC 162] (iii) _**Khokan Giri v. State of W.B.**_ [(2017) 12 SCC 767] 57. It is further argued that first accused alone had a motive against Jabbar as is evident from the deposition of PW1 who speaks about the animosity between first accused and Jabbar. PW4 in his cross examination also speaks about the same which is again supported by PW36 and PW39. It is further submitted that certain witnesses were deliberately not examined though cited which is also fatal to the prosecution. 58. Learned counsel for the 4[th] accused further submitted that the person who had alleged to have deposited the money in Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:76:- first accused's account is A14. He is acquitted and extra judicial confession has no application to the facts of the case. Further S.10 of the Evidence Act cannot be relied upon by the prosecution on account of the fact that it applies only after establishing a _prima facie_ case. He also placed reliance on the judgments in _**Bhagwan Swarup v. State of Maharashtra**_ (AIR 1965 SC 682), _**State of M.P. v. Paltan Mallah**_ (AIR 2005 SC 733), _**Jayendra Saraswathi Swamigal v. State of Tamil Nadu**_ (AIR 2005 SC 716) and _**Abdul Sattar v. Union Territory, Chandigarh**_ (AIR 1986 SC 1438). The counsel appearing for the 6[th] accused also placed reliance on a few of the judgments in _**State of Rajasthan v. Balveer**_ [2014 (1) KLT S.N.42(SC) (Case No.59)], _**State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari and**_ _**Others**_ [(2013) 12 SCC 17], _**State v. Nalini**_ [(1999) 5 SCC 253] and _**Mohd. Khalid v. State of W.B.**_ [(2002) 7 SCC 334]. It is submitted that prosecution has a further case that 6[th] accused has met A14, but no documents had been produced to indicate that he had actually visited A14. 59. The learned Public Prosecutor submitted that when PW1 and PW2 had seen A4 and A6 at Rancha in the presence of Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:77:- first accused and 12[th] accused, it is possible that they have met consequent to a conspiracy. Conspiracy cannot be proved by direct evidence. The fact that immediately thereafter A1 purchases a knife goes a long way to prove that the knives were purchased in pursuance of the said conspiracy. Further, there is evidence to prove that money was paid and there was a promise to pay money which is evident from the subsequent conduct of the accused when he conducted a press conference after coming out from the prison. It is further contended that Jabbar was in a fit condition to speak as evident from the statement of PW3 and PW52. 60. The question to be considered is whether A4 and A6 can be treated as conspirators to the crime. Other than the evidence of PW1 and PW2 who were treated as approvers, there is nothing to indicate that A1 or any of the other accused had met A4 and A6 and conspired together. PW1 or PW2 had not participated in the conspiracy. So they cannot say as to what happened. Their only testimony is based on the information supplied by first accused. 61. The first question to be considered is whether they can Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 **==> picture [27 x 9] intentionally omitted <==** be treated as approvers. If they are approvers, necessarily their evidence requires corroboration. Other than the purchase of knives by first accused, which is proved by evidence, there is no other corroboration to their testimony. An approver's evidence cannot be corroborated with another approver's evidence. 62. In order to make PW1 and PW2 approvers, they should have participated in the crime in one way or other, either they were actually involved in the attack on Jabbar or they were pure conspirators or they have abetted the crime, had a common object to commit the crime, was part of the unlawful assembly etc. In the evidence given by them before the Magistrate while making approvers, they have not made any inculpatory statements. In other words, nothing has been stated regarding their role in the crime. Court below proceeds on the basis that a reading of evidence of PW1 and 2 would show that they were accomplices and were not silent spectators to the offence. They had seen the hatching of conspiracy at Rancha and consequent preparations in the commission of crime in purchasing the bill hook knives and making further arrangements by talking over telephone with several persons. It is also observed that PW1 was Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:79:- driving the car of first accused and he was taken to different places in pursuit of the conspiracy. It is observed that they are persons who have aided knowingly the accomplishment of the objective. But in order to make PW1 and 2 approvers, they should admit that they have aided or abetted the crime. It is not for the court to assume that they were either abettors or have aided the commission of the crime. They should make a statement before court either at the time of making them approvers or while being examined before Court that they had participated in one way or other with the crime. In the case on hand, they are very specific in saying that they had nothing to do with the crime. A bare reading of their deposition also would not indicate that they can be treated as approvers in the strict sense. Under such circumstances, their evidence can have no value at all in order to implicate accused 4 and 6 to the crime. 63. The only other evidence available in the case is regarding the dying declaration alleged to have been made by Jabbar to PW4. We have already held that Jabbar was in a position to talk over telephone. He told PW3 only regarding the involvement of first accused and certain others. Probably he did Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:80:- not know the others as well. The fact that Jabbar spoke to PW4 is proved by the testimony of PW3 and PW9. Of course PW6, who was along with them had turned hostile. But there is no reason why the evidence of PW3 and PW9 can be rejected. PW6 also says that Jabbar was conscious during the travel. But his deposition is that he alone talked to Radhakrishnan Master and informed the situation. In fact it was Jabbar who wanted to speak to Radhakrishnan Master. Probably he did not have confidence in any other person. It is true that the phone of Jabbar is not available nor the call details of the said number. It is while talking to PW4 that Jabbar mentioned about, what accused 1 had told about A4 and A6. This was overheard by PW3 and PW9. Jabbar had spoken in Tulu language. Probably he did not want any others to hear what he says. But what Jabbar told PW4 was what first accused had stated. The question is whether the statement made by the first accused to Jabbar can become a statement which is admissible u/s 32(1). The words “ _circumstances of the transaction_ ” was first considered by the Privy Council in _**Pakala Narayana Swami**_ (supra). It was held by Lord Atkin that:- _“The circumstances must be circumstances of the_ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ## -:81:- _transaction : general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. “Circumstances of the transaction” is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “res gestae”. Circumstances must have some proximate relation to the actual occurrence: though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that “the circumstances” are of the transaction wich resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that “the cause of (the declarant's) death comes into question.”_ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:82:- 64. In _**Rasheed Beg**_ (supra), Apex Court held that in a case where there were two dying declarations, it should not be believed without some corroborating evidence. In _**Babubhai Bhimabhai**_ (supra), the proposition is similarly held based on _**Pakala Narayana Swami**_ (supra). In _**Mohd. Jamiludin Nasir v. State of West Bengal**_ [(2014) 7 SCC 443], Apex Court held that a charge u/s 120B I.P.C. stands proved only by showing that two or more persons have a thing to do or cause to do an illegal act or an act which is not illegal by imperial means and that some overt act was done by one of the accused in pursuance of the same. Therefore, the most important factor to be proved in a case of conspiracy is an agreement to commit the crime. In so far as conspiracy is committed in secrecy, conspiracy has to be inferred based on proved circumstances pointing out the one and only hypothesis of existence of a conspiracy. The question in the present case would be whether when we rule out the evidence of PW1 and PW2, the dying declaration alone can be material to connect A4 and A6. 65. Though it is contended by the learned counsel for accused Nos. 4 and 6 that the statement given by Jabbar over Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:83:- phone to PW4 regarding the involvement of A4 and A6 does not become a statement relating to either cause of death or any of the circumstances of the transaction which resulted in his death, we do not think that the said proposition can be accepted. What PW4 heard from Jabbar in the language of PW4 is that “പനരകത്തെ കണ്ട കകൊർ തണിരണിച്ചു വന. ആക്രമണിച്ചു. കമകൊയണി ഉണ്ടകൊയണിരുന. Sudhakaran Master ഓടുണ നടുവണിൽ Abdulla Kunji പയകൊടുണ എതണിർത്തെകൊൽ = കളണിചകൊൽ ഇതകൊണ ഗതണി എന കവടണിയവർ പറഞ എന പറഞ . call cut ആക്കണി ". The Apex Court in _**Patel Hiralal Joitaram v. State of Gujarat**_ [(2002) 1 SCC 22] had occasion to consider the scope of S.32(1) and made reference to an earlier three bench judgment in _**Sharad Birdhichand Sarda v. State of Maharashtra,**_ [(1984) 4 SCC 116] wherein the Apex Court had laid down certain propositions. Para 21 of _**Sharad Birdhichand Sarda**_ (supra) reads as under:- _**“21.** Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:_ _(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies,_ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ## -:84:- _whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice._ _(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32._ _(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-_ Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ## -:85:- _examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring._ _(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide._ _(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant._ 66. Of course, the first part clearly indicates the statement regarding the cause of death which he had stated as Moinji and thereafter he also states regarding the persons who were involved. The Apex Court in the aforesaid judgment in Clause 2 had clearly stated that sometimes the statements which are relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. The reference to Sudhakaran Master and Abdulla Kunji can also be such a statement. Therefore, if the version of PW4 is believed, the Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:86:- dying declaration of Jabbar becomes admissible in evidence. 67. Then the question is whether the evidence given by PW4 as the dying declaration of Jabbar is enough to prove conspiracy against A4 and A6. Apparently, the first accused had made the statement and they intended that this will happen if you play with A4 and A6. This statement by itself will not mean that A1 and others were inflicting injuries on Jabbar at the instance of A4 and A6. First accused did not say that he was doing it as instructed by A4 or A6. When we are considering a case of conspiracy based on circumstantial evidence, all the circumstances have to be proved to the hilt. When the statement allegedly made by Jabbar to PW4 regarding the involvement of A4 and A6 has no clarity to indicate that they were also responsible for the murder and there is nothing in the said statement to infer a conspiracy between A1, either with A4 or A6, we are of the view that A4 and A6 should be given the benefit of doubt. 68. As already indicated, evidence of PW1 and PW2 cannot be relied upon to prove the alleged conspiracy. Even assuming that their version can be taken on record, still, they had only hearsay information and they had no direct knowledge about the Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 -:87:- alleged conspiracy. 69. Having regard to the aforesaid facts, we are of the view that the appeals filed by A4, A6 and A13 are to be allowed and the other appeals deserve to be dismissed. The Court below had convicted accused 1, 8, 10 and 12 for the offence u/s 120B r/w 149, 302 and 201 I.P.C. and separate sentences had been awarded. In so far as there is no evidence of unlawful assembly or criminal conspiracy and the conspiracy is not proved and the number of persons involved who had been found guilty are accused 1, 8, 10 and 12, the sentence of the said accused shall also stand modified accordingly. Accordingly, the appeals are disposed of as under:- (i) In Crl.Appeal No.885/12 and Crl.Appeal No.1155/12, conviction and sentence of the accused for offence u/s 302 I.P.C. are upheld. The conviction and sentence u/s 120B r/w 149 stands set aside. (ii) Crl.Appeal Nos.712/12 filed by the 4[th] accused, 680/12 filed by the 6[th] accused and 737/12 filed by the 13[th] accused are allowed setting aside the conviction and sentence of the accused. They shall be released from prison, if their presence is not Crl.Appeal Nos.680, 712, 737, 885, 1155 of 2012 ## -:88:- required for any other purpose. (iii) In all other respects, the judgment of the lower Court shall stand confirmed. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge