State of Kerala v. Sageer S/o ABOOBACKER; Shajah an S/o ABOOBACKER; Shihab S/o Shahul Hammed; Firose S/o Abdulla; Usman S/o Ibrahim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **CRL.A.No.396 OF 2015** **CP 24/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS,CHAVAKKAD** **AGAINST THE JUDGMENT IN SC 1156/2008 DATED 28-01-2015 OF IVTH ADDITIONAL SESSIONS COURT, THRISSUR** ## **APPELLANTS/ACCUSED 1 TO 3 AND 6:** - **1 SAGEER S/O. ABOOBACKER, MAMMASRAYILLATH, VYASA NAGAR, VATANAPPILLY** - **2 SHAJAHAN S/O. ABOOBACKER, MAMMASRAYILLATH, VYASA NAGAR, VATANAPPILLY** - **3 SHIHAB S/O. SHAHUL HAMMED,PALLITHOTTINGAL VEEDU, ANJANADADY** - **4 FIROSE S/O. ABDULLA, PUYAVEETTIL, ANJANAGADY, VATANAPPALLY** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SRI.ENOCH DAVID SIMON JOEL SRI.GEORGE A.CHERIAN SRI.PAUL JACOB (P) SRI.BECHU KURIAN THOMAS (SR.)** Crl.Appeal Nos.396 & 560/15 -:2:- **SRI.PAUL JACOB (P) SRI.S.SREEDEV SRI.RONY JOSE SRI.P.VIJAYA BHANU (SR.) SMT.MITHA SUDHINDRAN SMT.POOJA PANKAJ** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (THROUGH DY.S.P., CBCID, KOZHIKODE.** **BY ADV.SRI. ALEX. M. THOMBRA -SR.P.P** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2507-2019, ALONG WITH CRL.A.560/2015(A), THE COURT ON 04-112019 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.396 & 560/15 -:3:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** **CRL.A.No.560 OF 2015** **CP 24/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS,CHAVAKKAD** **AGAINST THE JUDGMENT IN SC 1156/2008 DATED 28-01-2015 OF IVTH ADDITIONAL SESSIONS COURT, THRISSUR** ## **APPELLANT/4TH ACCUSED (IN CUSTODY):** **USMAN, S/O.IBRAHIM AGED 45 YEARS PUTHUVAKKUTH VEEDU, CHEMMALASSERY HOUSE, VII/37, PILAMENTHODE, MALAPPURAM DISTRICT** **BY ADV. SRI.RAJIT** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADV. SR.PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2507-2019, ALONG WITH CRL.A.396/2015, THE COURT ON 04-11-2019 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.396 & 560/15 -:4:- ## **J U D G M E N T** Dated this the 4[th] day of November 2019 ## _**Shaffique, J.**_ These appeals arise from the judgment dated 28/1/2015 in SC No.1156/2008 on the file of the Additional Sessions Court, Thrissur. Crl.Appeal No.396/15 has been filed by accused 1 to 3 and 6. Crl.Appeal No.560/15 has been filed by the 4[th] accused. 2. By the impugned judgment, accused 1 to 4 and 6 were sentenced to undergo rigorous imprisonment for life for offence u/s 120B(1) r/w S.302 of I.P.C. and to pay a fine of `10,000/- with default sentence. Accused 1 to 3 and 6 were sentenced to undergo rigorous imprisonment for six months for offence u/s 143, rigorous imprisonment for one year each for offence u/s 147 and rigorous imprisonment for two years each for offence u/s 148. Accused 1 to 3 and 6 were also sentenced to undergo imprisonment for life and to pay a fine of `10,000/- with default sentence for offence under Sections 302 and 302 r/w 149 of I.P.C. 3. The deceased in the case is one Rajeevan. According Crl.Appeal Nos.396 & 560/15 -:5:- to the prosecution, he was having a relationship with a lady by name Fathima. An extremist organization by name Jam Iyyathul Ihsaniyya did not approve the said relationship between a Hindu person and a Muslim woman and they decided to annihilate Rajeevan. Prosecution allege that accused 1 to 6 and 8 to 11 entered into a conspiracy to kill Rajeevan as he maintained illicit relationship with Fathima. The incident occurred on 28/12/1995 at about 11.30 p.m. when Rajeevan came to the residence of PW1. Prosecution allege that accused 1 to 6 armed with knives and iron pipes trespassed into the house of Fathima (PW1) and when they found that Rajeevan got away from the said place, chased Rajeevan and inflicted injuries on him with weapons like knife, iron rods, pipes etc,. On suffering the injuries, Rajeevan was wailing and became unconscious. Though he was taken to the hospital by his brother Rajesh and a few others, he succumbed to the injuries. 4. FIS was given by Rajesh, brother of Rajeevan. Investigation was conducted by Circle Inspector of Police, Valappad and after gathering evidence, accused 1 to 7 were mentioned in the final report. The investigation was continued by Crl.Appeal Nos.396 & 560/15 -:6:- the successor in office, PW30 arrested accused 1 to 5 and after completing the investigation, final report was filed making accused 8 to 11 also as having participated in the crime. Investigation was completed by PW32, Dy.S.P. of Police who filed the final report. The case was committed to the Sessions Court. Though accused 8 to 11 were absconding, they later appeared. 5. The accused were charge-sheeted for offences u/s 120B of 302, 143, 147, 148 and 302 r/w 149 of I.P.C. Though there were 11 accused in the case, the case against other accused were split up and trial commenced against accused 1 to 6. In order to prove the case, prosecution examined PW1 to PW32 and placed reliance on Exts.P1 to P42. MO1 to MO8 were the articles produced and identified. Exts.D1 to D10 were the contradictions marked with reference to the earlier statement of witnesses. After completing the procedural formalities, the aforesaid accused were convicted as stated above. 6. Before proceeding further, it will be useful to have a brief analysis of the evidence adduced by the prosecution. 7. PW1 is Fathima. She deposed her association with Rajeevan. She deposed that, on the fateful day, Rajeevan had Crl.Appeal Nos.396 & 560/15 -:7:- come to her house through the terrace. She took him to her bed room and they made love. At about 12.30 during night, she heard a calling bell. When she peeped through the lens on the door, she saw Shihab (A3) and the brother of her mother-in-law in the porch. She informed the matter to Rajeevan. He went upstairs and left the place through the terrace. She woke up Yousef, her husband's cousin and her son and opened the window of the house. At that time, A3 and A7 (Hameed) were in the porch. Hameed is her uncle. She therefore opened the door. He asked her whether there was anyone inside. She said there was nobody. He lighted the torch and checked inside the house. A3 was having MO1 iron rod with him. While Hameed was talking to her, A3 went out. Hameed asked her to close the doors. When he stepped out, she heard shoutings to catch and kill somebody. She heard frightening cries. Hameed went towards west, flashing the torch light and he came back suddenly and went towards the road through the front gate. Her neighbours also came hearing the hue and cry. She saw her uncle Hameed talking with some persons. She could hear the sound of an autorickshaw moving away. Later, a car came to her gate and some people carried a Crl.Appeal Nos.396 & 560/15 -:8:- person from the western side of her house to the car and left the place. She was informed by Yousef, her husband's cousin that it was Rajeevan who was carried away. By about 6.00 a.m in the morning, she saw blood stained lungi lying in the courtyard which she identified as MO2. She also identified A3. She knew A1 as well. She also identified MO3, the gold chain which Rajeevan used to wear. 8. PW2 is Sadasivan. He knew PW1 and Rajeevan. He identified all the accused. He only deposed that he overheard the accused while they were travelling in his auto by about 8.00 p.m. on the said night about the relationship between Rajeevan and PW1. He dropped them near the mosque at about 8.30 p.m a week before Rajeevan was killed. He later overheard one Ansari asking the group why Rajeevan was permitted to go scot free and he was not done away. 9. PW3 Sathyan knew Rajeevan and PW1. He deposed that after seeing a movie, while he was walking home along with his friend Sreekumar, when he reached on the eastern side of the house of Tharayil Muhammed, who is the husband of PW1, they saw about 5-6 persons moving away from the road. They waited Crl.Appeal Nos.396 & 560/15 -:9:- there to find out what was happening. He saw A3 and Hameed in the car porch of the house. Later the door was opened. A3 and Hameed went inside the house. He heard some commotion from the terrace. Rajeevan was climbing down the coconut tree on the western side of the terrace. He saw A3 and A5 hitting Rajeevan with iron rods. Rajeevan cried aloud. At that time, A1 and one Noushad started stabbing the deceased who fell down. On seeing the incident, fear gripped them and they went home. According to him, the incident happened at about 1.15. a.m on 29/12/1995. He identified MO1 iron rod which was in the hands of A3, MO4 knife held by A1 and MO5 knife held by Noushad. He also identified the lungi Rajeevan was wearing as MO2. 10. PW4 is the neighbour of PW1. She woke up hearing a hue and cry during night. She woke up her husband and when they came out, they saw her husband's brother Raveendran. Her husband and Raveendran went to the house of PW1 to enquire. They came back stating that Rajeevan was lying there beaten up. Next day morning, they heard that Rajeevan is dead. 11. PW5 is the husband of PW4. He also deposed in the same lines as what PW4 has stated. He came out from his house Crl.Appeal Nos.396 & 560/15 -:10:- to find out his brother and mother standing there. They went to the gate of PW1. He also saw PW1's uncle standing on the road. Rajeevan was lying with bleeding injuries on the western side of PW1's house. 12. PW6 knew PW1 and Rajeevan. He was coming after seeing a movie on 28/12/1995. While he was going home on his bicycle along Chilanka beach road, when he reached near the residence of PW1, he saw some people gathered on the western side. He saw Rajeevan lying injured in a pool of blood. A few other people had also assembled there. He was told that it was Rajeevan by Rajesh (PW18). They took Rajeevan to a Maruthi car brought by Rajesh. He was taken to Aswini Hospital, Thrissur and Doctor examined him and declared that he was dead. 13. PW7 is also a person in the nearby locality. He knew Rajeevan and PW1. He woke up by around 1.30 a.m hearing loud noises and cries. He along with his father, mother and brother came out and found light in the house of PW1. They went to her house. They saw Hameed in front of her house. Hameed told him that Rajeevan is lying injured. They saw Rajeevan lying injured on the western side of PW1's house. He immediately called Crl.Appeal Nos.396 & 560/15 -:11:- Rajeevan's brother (Rajesh-PW18) who came in a car and Rajeevan was taken to hospital and the Doctor on examining declared him dead. 14. PW8 also is a person who knew PW1 and deceased Rajeevan. She identified A1, A2, A3, A4 and A6. She knew them. During the night when Rajeevan was killed, she was residing in her mother's house which was near the house of PW1. She heard sound of people running near her house which was about 1.001.30 hrs during night time. She came out with a torch. She saw A1, A2, A4 and A6 came running. Three persons were standing near the motorcycle parked on the roadside behind the house. She overheard them. They were telling that he was done to death as told and that he would not survive as they had inflicted sufficient injuries. She overheard A1, A2, A3 and A6 telling Aseez, Anvari, Usman (A4) and Yousef. Since strangers were also there, she noticed the number of motorcyle as KL-W 503. She saw the lights of a car on the road leading to Chilanka road junction. The accused moved towards north. Anvari, Aseez and Yousef left the place in the motorcycle. 15. PW9 was the owner of a Yamaha Motorcycle. He Crl.Appeal Nos.396 & 560/15 -:12:- exchanged his motorcycle with a bullet motorbike KLW 503 from Anvari. One year later, police came from the crime branch asking for the bullet bike and he surrendered it before Vatanappally police station. Anvari was missing since exchange of bikes. (Anvari is the 9[th] accused in the final report). 16. PW10 is a witness to the inquest. PW11 is a witness to scene mahazar. He identified MO1, MO2, MO3 and MO6 which were recovered from the scene. He deposed that the said articles were recovered from the western side of PW1's house. 17. PW12 had been examined to prove that Rajeevan was having finance business near the shop where he was working. PW13 is an attestor to Ext.P3 inquest report. Evidence of PW14 and PW15 are totally irrelevant. PW16 is a witness to Ext.P7 mahazar by which the Circle Inspector of Police had recovered Ext.P8 receipt book. 18. PW18 is Rajesh who gave Ext.P9 FIS before the Sub Inspector of Police. He is the younger brother of Rajeevan. He deposed that at about 1.30 a.m, Abdul Hameed who is residing on the western side of his house came in an autorickshaw and informed him that there was some trouble in the house of PW1 Crl.Appeal Nos.396 & 560/15 -:13:- and that Rajeevan was lying injured. PW18 took the car and reached the place. He saw Rajeevan lying injured in the compound of PW1's house. Rajeevan was bleeding. He was groaning. He was severely injured. He only had shirt on his body. He was taken to Aswini Hospital and the Doctor declared that he was dead. He identified MO6, his own chappals which he left while he was carrying Rajeevan to the car. FIS was given at 8.00 a.m which was recorded by the Sub Inspector of Police. He also identified MO7 shirt Rajeevan was wearing at the relevant time. MO2 is the lungi and MO3 is the gold chain of Rajeevan. He identified A1, A2, A3, A5 and A6, who according to him were residents in the locality. He also deposed that an organization by name Jam Iyyathul Ihsaniya was functioning in the locality in the year 1995 under the pretext of helping the poor and the accused were active members of the said organization. 19. PW19 Doctor of Government Medical College Hospital Thrissur had examined PW1 at 8.00 p.m on 29/12/1995. He had collected the vaginal swab and smear from her. Ext.P10 is the certificate and Ext.P11 is the chemical analysis report. 20. PW20 runs a printing press. He had printed the receipt Crl.Appeal Nos.396 & 560/15 -:14:- books of the organization Jam Iyyathul Ihsaniya. Ext.P12 is the written matter entrusted for printing which was seized by the police. PW21 is a witness to seizure of MO5 as per Ext.P14 mahazar. MO5 knife was taken by the accused from the rubbles of a ruined basement of a property owned by one Muhammed. 21. PW22 had also witnessed recovery of MO4 knife as per Ext.P15 mahazar. PW23 Assistant Police Surgeon of Medical College Hospital, Thrissur conducted autopsy on the body of Rajeevan and Ext.P16 is the certificate. PW23 noticed 55 injuries on the body and according to him, injury Nos. 19, 25, 27, 51, 52 and 55 could be caused by MO4 and MO5 knives. Injury Nos.1 to 4 could be caused by MO1 and MO8 series iron pipes. 22. PW24 is a witness to the recovery of MO8 pipe at the instance of 6[th] accused and Ext.P17 is the mahazar in which he is a witness. PW25 the Village Assistant had prepared Ext.P18 sketch. PW26 was a Police Constable attached to Vatanappilly Police Station. He was on scene guard from 10.30 a.m on 29/12/1995. PW27 was the Circle Inspector of Police who conducted inquest. He recovered MO7 shirt from the body of deceased and the body was sent for post-mortem. He prepared Crl.Appeal Nos.396 & 560/15 -:15:- Ext.P1(a) scene mahazar and recovered MO2 lungi, MO3 gold chain, MO1 pipe and MO6 chappals from the scene itself. He deposed that PW1's house is facing towards south. The road on the southern side runs on east-west direction. The incident took place on the western side of the house compound of PW1. There is enough light on that side of the building. Ext.P23 is the FIR registered by the Sub Inspector late Radhakrishnan on the basis of statement given by PW18. 23. PW28 is a witness to seizure of motorcycle KLW 503 and Ext.P24 is the said mahazar. PW29 is a witness to the seizure of notice and receipts of the organization. Ext.P25 is the mahazar. PW30 was the Circle Inspector of Police, Valappad from 27/3/1996 to 10/12/1996. He arrested accused 1, 2, Noushad, 5 and 6. MO5 knife was recovered on the basis of the statement given by Noushad. Ext.P26 is the extract of the confession statement. Ext.P14 is the mahazar of the said recovery. Based on the confession statement of 1[st] accused, MO4 knife was recovered and Ext.P15 is the mahazar. Ext.P27 is the confession statement which led to the discovery of MO4. On the basis of confession statement of A6, iron pipe sticks were recovered as per Ext.P17 Crl.Appeal Nos.396 & 560/15 -:16:- mahazar which were produced as MO8 series. He also effected seizure of the motor bike as per Ext.P24 mahazar. Ext.P38 is the report of chemical examination of the materials which were sent. 24. PW31 continued the investigation from March 1996 to January, 2001 until the case was transferred to crime branch. 25. The fact that Rajeevan died on account of the injury sustained by him is not in dispute. He had suffered 55 injuries of which, few of them were incised penetrating wounds sustained to the chest and abdomen. From the nature of injuries itself, it is rather clear that it was a group attack and by using separate weapons. On the basis of the medical evidence and the inquest report, it is rather clear that Rajeevan was attacked by a group of persons which resulted in his death. 26. Separate arguments were raised by learned senior Counsel Sri.Bechu Kurian appearing on behalf of accused Nos.1, 2 and 6, Senior counsel Sri.Vijayabhanu appearing for the 3[rd] accused and Sri.Rajit, learned counsel appearing for the 4[th] accused. The common argument raised by the counsel for accused is that the prosecution was unable to prove the case beyond reasonable doubt. There is no eyewitness to the incident Crl.Appeal Nos.396 & 560/15 -:17:- and the Court was relying on circumstantial evidence alone. There is no evidence to prove that any of the accused were in the vicinity of the crime at the relevant time. Though PW1 states that A3 had come with an iron pipe, she had not seen A3 inflicting any injury on the deceased. When the prosecution says that the incident happened in the compound of PW1, necessarily, PW1 would have witnessed the incident. She did not say that any of the other accused were in front of her house at the relevant time. The evidence of PW1 cannot be believed on account of her involvement in the illicit relationship with Rajeevan. The evidence of other witnesses does not help the prosecution in any manner. PW3 is stated to be an eyewitness. But his presence in the locality is highly doubtful. According to him, he came there and hearing a hue and cry, he hid himself in the bushes and after seeing the crime, he left the place. He identified A1, A3, A5 and one Noushad. But his evidence itself would show that he is a planted witness. Though PW2 had been cited to prove a conspiracy, his evidence is totally unbelievable. His statement is that he had overheard some conversation between a few of the accused regarding the doing away of Rajeevan. Yet another Crl.Appeal Nos.396 & 560/15 -:18:- witness relied upon was PW8 whose evidence is also totally unbelievable. PW8 had deposed that she had overheard the accused conversing between themselves that Rajeevan was murdered which cannot be treated as evidence in any manner. Her presence in her mother's house on the said day itself is doubtful and she is a planted witness. 27. The learned counsel for the defence also placed reliance on the following judgments. (i) _**Jarnail Singh v. State of Punjab**_ [(2009) 9 SCC 719]. This was a case in which the Apex Court held that while evaluating the evidence of a chance witness, it requires caution and a close scrutiny and the witness will have to adequately explain his presence at the place of occurrence. His conduct after the incident also is relevant, which should also be taken into consideration while evaluating the evidence. Paragraphs 22 and 23 are relevant, which reads as under: _**“22.** The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh, Harjinder Singh v. State of Punjab, Acharaparambath Pradeepan v. State of Kerala and Sarvesh Narain Shukla v. Daroga Singh)._ Crl.Appeal Nos.396 & 560/15 -:19:- _Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan)._ _**23.** Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N.). Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned.”_ ## (ii) _**Swarnamma and Another v. State of Kerala**_ (2015 (3) KLJ 544) is a case in which a Division Bench of this Court after referring to the judgments of the Apex Court held that if a material witness is deliberately or unfairly kept back, it will cast a serious doubt in the prosecution case. (iii) _**Varkey Joseph v. State of Kerala**_ (1993 (2) KLT 617) has been relied upon to emphasise that the Prosecutor cannot put leading questions on material part of evidence to a witness. If Crl.Appeal Nos.396 & 560/15 -:20:- such leading questions are put, it would offend the accused for a fair trial and it is not a curable irregularity. 28. On the other hand, learned Public Prosecutor argued that the Court below had placed reliance on sufficient materials to find the accused guilty and there is no reason to take a different view. The genesis of the incident had been clearly spoken to by PW1 and the deceased sustained injuries in the compound of PW1 itself. That there was an attempt to do away with him is proved by the testimony of PW2, who overheard some of the accused, the members of the organization speaking between themselves, that they are going to do away with the deceased. PW3 has clearly explained about his presence in the locality at the relevant time. He has seen a few accused inflicting injuries on the victim. His evidence is supported by the testimony of PW8 who had clearly spoken about what she had overheard. When such materials are available, Court below had rightly convicted the accused. 29. From the evidence of PW1, it is rather clear that certain persons in the locality had undertaken a moral policing approach. Her evidence would disclose that, on the fateful day, Crl.Appeal Nos.396 & 560/15 -:21:- Rajeevan had come to her house by climbing on to the terrace which would indicate that he was coming discreetly. She had taken him to her bedroom and they had sex. After a while, she heard a knock at her door. She saw A3 with an iron pipe and her uncle Hameed. They were enquiring whether any stranger was inside the house. Before opening the door, she cautioned Rajeevan who climbed up the stairs, went to the terrace and tried to escape. PW3 in his evidence deposes that he saw Rajeevan climbing down the coconut tree and at that time, he was attacked by A3 and A5. They were yelling to beat and kill him. At that time, A1 and Noushad came and started stabbing the deceased who had fallen on to the ground. PW3 deposed that he had seen the presence of A1 and A3 along with Basheer and Noushad. He had seen A1 and A3 along with two others inflicting injuries on Rajeevan. The prime argument of counsel appearing for the defence is that PW3 is a chance witness. His conduct would prove that he cannot be believed. He hid behind the bushes along with his friend Sreekumar watching the entire incident and after seeing that Rajeevan was injured, he did not do anything. He just left the place and went home. Crl.Appeal Nos.396 & 560/15 -:22:- 30. First we shall examine whether evidence of PW3 is believable or not. During cross-examination of PW3, the defence version was that for going back to his house, he need not go by the side of PW1's house for which his answer was that while coming from Chilanka theatre, the easiest way is to go by the side of PW1's house. There is nothing to disbelieve PW3 to that extent. During further cross-examination, he stated that after seeing the incident, he was in a shock. Therefore, he went to his house and he did not inform the matter even to his family members. 31. PW3 was questioned by the Sub Inspector of Police 3-4 days after the incident. During cross-examination, he was confronted with a statement given by him to the Circle Inspector of Police on 2/1/1996, which is marked as Ext.D2. In Ext.D2, he has stated that at that time since there was no light, he was unable to say anything regarding the weapons used and who had committed the overt acts. During further cross-examination by the defence, his statement that he saw A3 and A5 beating Rajeevan with an iron rod and that he saw Basheer and Noushad inflicting injuries on the victim have also come out as omissions. Crl.Appeal Nos.396 & 560/15 -:23:- According to him, he had stated so, but he does not know why the police had not recorded. Apparently, the defence was able to throw some doubt with reference to the identification of the accused placing reliance upon the previous statement, Ext.D2. PW30 admits that PW3 had not given a statement that he had seen the incident. The relevant portion of the evidence of PW30 is as under:- " ഊന�റങന വഴ�ക ഷ�ഹ�ബ�, ബഷ�റ� ഇരമ വട�ക��ണ� അട�ചത�യ� ക��ഴ� പറഞ�ട�ല. അട� ��ട�യ വഴ�, ര�ജ�വൻ എകന ക��ല�ൻ വരന എന�, “ഷഗ�റ�, ന*ഷ�ദ� �ത�ക��ണ കതനത� �ണ എന� പറഞ�ട�ല.” It is therefore apparent that PW3's evidence that he had seen any of the accused inflicting any injuries is an embellishment to the prosecution case, which clearly amounts to a material contradiction. 32. But presence of PW3 in the locality is spoken to by PW6 also. He was also coming back after watching the movie during the said night. His evidence requires to be considered. He deposed that he saw people gathered on the western side of Tharayil Mohammed's house (PW1's house). There was mercury light on the western corner and in the car porch. He went near. Crl.Appeal Nos.396 & 560/15 -:24:- He saw Rajesh, Madhu and his brother Muraleedharan. A person was lying injured there. When he enquired with Rajesh, he was told that it was Rajeevan. Rajeevan was lying with heavy bleeding. He also went along with Rajesh. He had stated that he saw PW3 coming out after seeing the movie “ _Manthrikam_ ”. 33. PW8 is a crucial witness for the prosecution. Her evidence requires to be analysed to find out to what extent her evidence can be relied upon. She is a person who has overheard the accused. She identified A1, A2, A3, A4 and A6. She deposed that Rajeevan died on 29[th] December, 1995 at night. She was at her mother's house. She heard people running around. It was about midnight 1.00-1.30 when she heard the sound. She took the torch and came out and saw the accused running towards her house. Three persons were standing near a motor bike. The Prosecutor asked her: "എന�ണ പറഞ�രനത� (Q) ന�ങൾ പറഞ പപ�ക5 ഞങൾ അവകന ശര�ക8ടത�" എന പറഞ "അവൻ രകക8ടപ�� എന പ<�ദ�ചപ8�ൾ "ഒര�കല� രകക8ട�ല, ഞങൾ 4 പപര� നന�യ� <റപറ� എന അവകന ക��ത�യ�ടണ�" എന� പറഞ. അസ�സ�, അനവര�, ഉസ�ൻ, യസഫ� എന�വപര�ട�, ഷഗ�ർ, ഷ�ജഹ�ൻ, ഫ�പറ�സ�, ഷ�ഹ�ബ� എന�വർ പറഞ.” Of course, the Prosecutor has put in a question as to what she Crl.Appeal Nos.396 & 560/15 -:25:- heard and her answer was, as you said, we have taken care of him. When they asked whether he will survive, their answer was that all the four persons had inflicted several injuries and at no stage, he will survive. She also noticed the number of the motorbike as KL-W 503. She saw them in the moonlight. Exts.D5 and D6 are the contradictions. In Ext.D5, she stated that she woke up after hearing the sound of somebody running while she was along with members of the family and in Ext.D6 she stated that after that Anvari, Aseez and Usman got into the motorbike, started it and proceeded towards east. Her evidence had been attacked on the ground that it is hearsay evidence. 34. Under Section 6 of the Evidence Act, facts which are so connected with a fact in issue and forming part of the same transaction are considered to be relevant irrespective of the fact whether they occurred at the same time and place or at different time and places. This is also a situation in which the accused themselves conversed together by stating that the deceased had been dealt with and he will not survive. Illustration (a) to S.6 of the Evidence Act reads as under: _**“Illustrations (a)** A is accused of the murder of B by_ Crl.Appeal Nos.396 & 560/15 -:26:- _beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact._ ## The principle underlying _res gestae_ has been laid down by the Apex Court in _**Dhal Singh Dewangan v. State of Chhattisgarh,**_ [(2016) 16 SCC 701] as under:- _**“24.** The general rule of evidence is that hearsay evidence is not admissible. However, Section 6 of the Evidence Act embodies a principle, usually known as the rule of res gestae in English law, as an exception to hearsay rule. The rationale behind this section is the spontaneity and immediacy of the statement in question which rules out any time for concoction. For a statement to be admissible under Section 6, it must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. The key expressions in the section are “… so connected … as to form part of the same transaction”. The statements must be almost contemporaneous as ruled in Krishan Kumar Malik and there must be no interval between the criminal act and the recording or making of the statement in question as found in Gentela Vijayavardhan Rao case. In the latter case, it was accepted that the words sought to be proved by hearsay, if not absolutely contemporary with the action or event, at least should be so clearly associated with it that they are part of such action or event. This requirement is apparent from the first illustration below Section 6 which states “whatever was said or done … at the beating, or so shortly before or after it as to form part of the transaction, is a_ Crl.Appeal Nos.396 & 560/15 -:27:- ## _relevant fact”._ Here is a case where PW8 overheard accused 1, 2, 3, 4 and 6 who came running and informs his associates, three persons that they have taken care of that person and he will not survive. The defence has a case that, Prosecutor had asked a leading question to PW8 for which she had given such an answer. We do not think that the question put to the witness can be treated as a leading question. In fact, she had stated in her chief examination that accused 1 to 4 and 6 came running and three of them were standing there in a motorbike which was behind her house on the road. Thereafter the Prosecutor had asked what she heard. That by itself is not a leading question. The answer was not put to the witness. Therefore, the argument that a leading question was put to the said witness cannot be sustained. 35. But, PW8 did not hear the name of the deceased. Who had mentioned about the killing is not known. But, it could be seen that A3 was part of the said gang and from PW1's evidence, it is clear that A3 had come in search of Rajeevan and immediately after A3 had known that Rajeevan was not in the house, he heard a sound and ran towards the western side of Crl.Appeal Nos.396 & 560/15 -:28:- PW1's house. Hameed followed. From the evidence of PW3, it is clear that he saw Rajeevan climbing down a coconut tree from the terrace of PW1's house. It is at the same time that A3 had gone from PW1's house towards that place with an iron pipe. 36. To prove the charge of conspiracy, the only evidence adduced is that of PW2 who says that he had heard about an attempt on the part of some of the accused along with others to do away with the deceased. But his evidence cannot be taken for granted. According to him, he overheard the accused talking to each other regarding the illicit relationship between PW1 and Rajeevan. He heard them saying that Rajeevan should be done away with. That was a week before the incident. He thereafter parked his vehicle and came back and he saw a few persons by the side of the mosque. He saw accused 1, 2, 5, 6 and Noushad. He heard them conversing regarding why Rajeevan is not done away with, having known about the relationship with PW1. During cross-examination, he stated that he had no previous acquaintance with those persons who had got into his autorickshaw and he was not aware of their names. He said that when they entered into his autorickshaw, he has asked their Crl.Appeal Nos.396 & 560/15 -:29:- names. His deposition as PW2 while he was examined in SC No.52/2003 was marked as Ext.D1 and the relevant portion of his statements were marked as Exts.D1(a) D1(b), D1(c) and D1(d). During cross-examination, he stated that those persons who were standing before the mosque were about 10 metres away and 15 metres from the road. He overheard them because he was standing there. While he was examined earlier, he stated that they were standing 50 metres away from the road on the western side of the mosque and he was standing 10 metres from the road. The deposition is marked as Ext.D1 and statement was marked as Ext.D1(a). He further deposed that he stood there for about 10 minutes behind a tree. He further deposed that he did not remain there for more than 10 minutes. He did not stand behind a tree. There is no tree behind the mosque. Ext.D1(b) is the previous statement while being examined before court wherein he had stated that he was standing behind the coconut and tamarind trees without them seeing him. He does not remember having stated Ext.D1(b). Earlier when he was examined, he had stated that he remained there for 20 minutes, which is marked as Ext.D1(c). In his evidence he states that when he came back, Crl.Appeal Nos.396 & 560/15 -:30:- they were still standing there. He did not see them sitting. In Ext.D1(d) statement, he had given evidence stating that while returning back, he saw them sitting there. His evidence when viewed appears to be very strange. According to PW2, he drops a few persons who travelled in his auto. They were mentioning about PW1 and Rajeevan. He overheard them and they got down near the mosque. He parked his vehicle a little far away and he came back and was watching them and he overheard them conspiring to commit murder. Taking into account the contradictions pointed out by the defence with reference to his previous statement, especially when there is no evidence to corroborate the said testimony, it may not be possible to arrive at a finding that a conspiracy had been hatched up to do away with Rajeevan as suggested by the prosecution. Of course, conspiracy is always done in secrecy and there may not be direct evidence to prove the said fact. But, to arrive at a finding regarding conspiracy, the evidence should be cogent enough either by direct evidence or by circumstantial evidence. Merely for the fact that a crime is committed by a group belonging to a particular religion, it does not mean that it is pursuant to a conspiracy. Crl.Appeal Nos.396 & 560/15 -:31:- Therefore, we are of the view that accused 1 to 4 and 6 cannot be convicted for conspiracy to commit murder. 37. It is true that PW3 had not identified the accused. But still, PW3's evidence to the extent of seeing a group of persons attacking Rajeevan while escaping from the house of PW1 need not be disbelieved at all since the said evidence is supported by the oral testimony of PW1 who had categorically stated that even before opening the door of the house, she asked Rajeevan to leave through the terrace of her building. Rajeevan was found injured in the compound of PW1 and as per the scene mahazar, hardly 10 metres from the building. It is rather clear that people were watching his movements and it is pursuant to the same that Abdul Hameed (A7 in the final report) had checked the house of PW1. A3 and Abdul Hameed on hearing the sound from the western side of the building rushed to that place. Abdul Hameed came back without saying anything to PW1. She heard the sound of an autorickshaw and thereafter a car came and Rajeevan was taken. Therefore, the presence of A3 was very much there at the time when Rajeevan is supposed to have suffered injuries. A3 was holding an iron pipe. There were others who were holding Crl.Appeal Nos.396 & 560/15 -:32:- knives. To that extent, there is evidence. The incident happened on account of a group attack. On account of the nature of injuries itself, A3's involvement to the crime cannot be ruled out. Who are the other assailants is the only question and PW8's evidence becomes clinching. 38. The following circumstances in the case stand proved:- (i) Evidence of PW1 regarding the presence of Rajeevan at her house. - (ii) Evidence of PW1 that on hearing a knock at the door and on seeing Hameed, she asked Rajeevan to leave her house. (iii) Rajeevan climbed up the stairs towards the terrace. PW1 came back and opened the door. Hameed checked up the house to find out whether anyone is in the house. Shihab (A3) was holding an iron pipe in his hand. (iv) PW1's evidence that a sound was heard from the western side and Shihab ran towards that place. (v) PW3's evidence that he saw Rajeevan climbing down the coconut tree and was attacked by some persons. (Of course PW3's evidence regarding identity of the Crl.Appeal Nos.396 & 560/15 -:33:- accused need not be considered as it is a clear omission which amounts to contradiction. In his previous statement u/s 161, he had stated that he could not see the assailants or the weapons). (vi) PW8 deposed that she saw accused 1 to 4 and 6 came running and meeting three other unidentified persons who asked them as to what happened and the accused replying that they have inflicted sufficient injuries to that person and that he will not survive (A4 has been acquitted by the trial court for the offence u/s 302 r/w S.149 IPC) (vii) The blood stained lungi and chain of Rajeevan were recovered from the compound of PW1. (viii) MO1 GI pipe was recovered on the basis of confession statement of A3. MO4 steel knife was recovered on the basis of confession statement of A1. MO5 was recovered on the basis of statement given by Noushad and MO8 series based on the confession statement of A6. 39. From the aforesaid materials, it is rather clear that immediately after commission of the crime, some of the assailants ran towards the house of PW8 where three persons Crl.Appeal Nos.396 & 560/15 -:34:- were waiting in a motor cycle and the accused told them that Rajeevan was murdered. However PW8 does not say as to whom she had overheard. Of course, she identifies the 3[rd] accused. Her evidence will only support the testimony of PW1 that the 3[rd] accused was involved in the crime. But the question is, whether the other accused who were along with the 3[rd] accused were involved in the crime and they had a common object to commit the crime. From the nature of evidence of PW8, it is not possible to arrive at a finding that accused Nos.1, 2 and 6 also had the common object to commit the aforesaid crime. Other than the statement of PW8, there is no evidence to arrive at a conclusion that accused 1, 2 and 6 were also present in the scene of crime. That apart, no incriminating material had been recovered from them. Under such circumstances, in the absence of any cogent evidence credible enough to implicate accused 1, 2 and 6, they cannot be found guilty for offence u/s 302 r/w 149 of I.P.C. But as already stated, several persons were involved in the crime. But the prosecution was able to establish only the presence of A3 who is liable to be convicted for offence u/s 302 r/w 149 of I.P.C. As far as accused 1, 2, and 6 are concerned, they are given the Crl.Appeal Nos.396 & 560/15 -:35:- benefit of doubt. In the result: (i) Crl.Appeal No.396/15 is partly allowed. We set aside the conviction and sentence of accused 1 to 3 and 6 u/s 120B r/w 302 of I.P.C. The conviction and sentence of accused 1, 2 and 6 for offence u/s 143, 147, 148 and 302 r/w 149 I.P.C. are set aside. The conviction and sentence of the 3[rd] accused for offence u/s 143, 147, 148 and 302 r/w 149 of I.P.C. as found by the trial Court are hereby confirmed. Accused 1, 2 and 6 shall be released forthwith, if their presence is not required in any other case. (ii) Crl.Appeal No.560/2015 stands allowed. The conviction and sentence of the 4[th] accused u/s 120B r/w 302 of I.P.C is hereby set aside. His bail bond shall stand cancelled. **Sd/-** **A.M.SHAFFIQUE** **JUDGE Sd/-** **N.ANIL KUMAR** Rp True Copy PS to Judge **JUDGE**