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CASE NO.:

Appeal (crl.) 784 of 1994

Appeal (crl.) 785 of 1994

PETITIONER:

STATE OF KERALA

Vs.

RESPONDENT:

P. SUGATHAN & ANR.

DATE OF JUDGMENT: 26/09/2000

BENCH:

D.P. Mohapatra & R.P. Sethi.

JUDGMENT:

SETHI,J.

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Jealousy, on account of love affair of two men with one

woman, ultimately resulted in the death of one and upon

conviction, sentence to life imprisonment of the other in

the case out of which the present appeal has arisen. The

common beloved was Krishna Kumari, respondent No.2

(hereinafter referred to as "A2") and one of her paramours

was Soman deceased whose decapitated head and headless body

were recovered from a river in Kerala. After completing his

post-graduation the deceased Soman was in the employment of

Canara Bank posted at Tirurangadi Branch. The other

paramour of the woman is P. Sugathan (hereinafter referred

to as "A1") who, on the date of occurrence, was

Sub-Inspector of Police posted at Police Station, Ramankiri.

Upon trial A1 and A2 were convicted for the offences

punishable under various sections of the Indian Penal Code

including Section 302, and sentenced to imprisonments, the

maximum of which was the life imprisonment. The Accused

No.3 tried with them was convicted and sentenced for the

offences under Section 201 read with Section 34 of the IPC.

The conviction and sentence of A1 was upheld but the

conviction of the lady accused A2 under Section 302 IPC was

set aside. She was, however, convicted and sentenced under

Section 201 of the IPC. Feeling aggrieved, the State has

filed appeal No.784 of 1994 for setting aside the judgment

of the High Court and on proof of the existence of alleged

conspiracy, to convict and sentence to A2 as well. Against

his conviction and sentence under Section 302 and other

offences under the Indian Penal Code, the A1 has filed

Criminal Appeal No.785 of 1993 with prayer of acquitting him

of the charges. Both the appeals have been heard together

and are being disposed of by this common judgment. The

facts of the case are that deceased Soman had his college

education in the University College at Trivandrum (Kerala)

where initially he stayed with his elder sister who was

employed in the office of the Accountant General. After

about one and a half years he shifted to the college hostel

but continued visiting occasionally the house of his sister

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PW4. Krishna Kumari A2 was, at that time, the domestic

servant of his sister. The acquaintance between Soman and

Krishan Kumari developed into love affair between the two.

After his post graduation he got a job in the Canara Bank

and was posted at Thirurangadi but his love affection with

Krishan Kumari A2 continued. He was married somewhere in

the year 1981-82 which resulted in the breaking of his

relations with A2. Thereafter A2 developed illicit

relations with A1 and started residing with him as his

concubine. In 1987 A1 was posted as Sub-Inspector of Police

at Ramankiri Police Station. Despite his having a wife

living and three children, A1 started living with A2 as her

husband in a rented house at Kalarcode. His legally wedded

wife and three children were, at that time, residing at

Alleppey in another house. Even though A1 and A2 had taken

a house on rent in Kalarcode, they normally used to stay in

the official quarters attached to Ramankiri Police Station.

Out of their illicit relationship they had got a son. In

early 1987 deceased Soman accidently came across with A2 and

is alleged to have revived his old intimacy and love affair.

Coming to know about the intimacy of his concubine, Krishna

Kumari and acquiring knowledge that Soman was making

attempts to re-establish his old relationship with Krishna

Kumari, A1 made up his mind to put an end to the intimacy by

causing his death. It was alleged by the prosecution that

A1 and A2 hatched a conspiracy to commit the murder of Soman

and in pursuance of the said conspiracy A2 met Soman at the

Haripad bus stand on the morning of 18th July, 1987 and took

him to the house taken on lease at Kalarcode. On 19th July,

1987 A2 allegedly using deceitful means is stated to have

taken Soman to the official quarters of A1 and sometime

after 10.30 p.m. they caused his death by suffocating him.

At this stage one Prasannan, who later became the approver

and Mohanan accused No.3 are stated to have joined the

conspiracy, earlier hatched by A1 and A2. The dead body of

Soman was removed by A1 and A2 with the help of Prasannan,

the driver of the boat. They carried the dead body from the

Police quarters to the boat and thereafter the approver, as

per the directions of the A1, drove the boat in the Pamba

River to some distance. When the boat reached quite at a

distance in the river, A1 cut off the head from the body of

the deceased with a knife supplied by the approver. The

head was thrown in the river. The boat again proceeded

further. A1 caused many penetrating injuries on the abdomen

of the headless body and pushed it also into the waters of

Pamba River, apparently with the object to destroy the

evidence. As after 18th July, 1987 Soman did not return to

his house, his father started inquiring about his

whereabouts. Soman's mother, wife, sister and in-laws who

were at Thiruvananthapuram were contacted over the telephone

to convey the news of his missing and also to ascertain as

to whether by any chance, he had reached there. Finding no

clue of the missing Soman, all his relations reached to his

family house and intensified his search. On 20th July, 1987

an FIR in a man-missing case Crime No.254/87 was registered

at Kayamkulam Police Station. On 22nd July, 1987 PW2 Mathew

found a headless body floating in the Pamba River. He

contacted the Police at Pulimcunnu Police Station, where on

the basis of his statement Crime No.75/87 was registered.

PW56 who was investigating Crime No.75/87 conducted a search

of A1's official quarters at Ramankiri on 25th July, 1987

and prepared Exhibit P-29, a search list. He deputed two

police constables to guard the quarters. The investigation

of Crime No.75/87 and Crime No.254/87 were clubbed together

by the orders of the Dy.Superintendent of Police. DIG,

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Crime Investigation directed the Dy.Superintendent of

Police, Crime Branch to take up the investigations of the

case who after taking over, verified the investigation

conducted by the former investigating officers and searched

the houses of PW1, PW8. Accused No.3 surrendered on

1.8.1987 before the investigating officer. A1 and A2 were

also arrested on that day. Various articles were seized and

super-imposition test on the dead body was conducted. On

21st August, 1987 Prasannan who was arraigned as Accused

No.4 expressed his willingness to make a confessional

statement which was recorded by the Judicial Magistrate on

27th August, 1987 after giving him necessary statutory

warning. Thereafter an application was filed before the

Chief Judicial Magistrate, Alappuzha submitting that

Prasannan was willing to give a full and true disclosure of

the whole circumstances within his knowledge regarding the

commission of the crime and he may be made an approver.

After perusing his confessional statement, the Chief

Judicial Magistrate summoned Prasannan PW1 and recorded his

statement. He was tendered pardon under Section 306 of the

Code of Criminal Procedure. The Judicial Magistrate, First

Class, Ramankiri committed the accused to the Court of

Sessions. The order of committal was challenged by the

accused persons on the ground that PW1, who accepted the

pardon had not been examined under Section 306(4) of the

Code of Criminal Procedure before commitment of the case to

the Court of Sessions. The High Court vide order passed in

Cr.M.P. 327/87 quashed the committal order and directed the

Magistrate to proceed afresh in accordance with law and

comply with the provisions of Section 306(4)&(5) of the Code

of Criminal Procedure. The accused persons were granted an

opportunity to cross-examine the approver at the time of

recording of his statement under Section 306. The statement

of the approver was recorded as per the directions of the

High Court and all the three accused again committed to the

court of Sessions to stand trial for various offences under

the Indian Penal Code. The prosecution examined 63 persons

as witnesses in the case and the accused produced 6

witnesses in their defence. As noted earlier, the Trial

Court convicted A1 and A2 and sentenced them to undergo

rigorous imprisonment for three years under Section 193, 5

years rigorous imprisonment under Section 201, 6 months

under Section 342 and imprisonment for life under Section

302 read with Section 120B of the IPC. All the sentences

were to run concurrently. Accused No.3 was sentenced to

undergo rigorous imprisonment for one year under Section 201

read with Section 34 IPC. The High Court relied upon the

testimony of the approver but found on facts that the

prosecution has failed to prove the conspiracy between A1

and A2 before the murder of Soman and acquitted her for

offences under Section 302 and 120B, IPC. However, she was

found to be guilty of the offence punishable under Section

201 IPC and sentenced to the period of imprisonment she had

already undergone by that time which was treated as

sufficient in the circumstances of the case. Dr.Jose

Varghese, learned Advocate appearing for the appellant-

State urged that the High Court committed a mistake of law

in holding that the criminal conspiracy between A1 and A2

for murdering deceased Soman has not been proved. According

to him there was sufficient evidence in the form of various

circumstances brought on record to prove the existence of

conspiracy. The conduct of A2, the factum of her posting

some letters got written from the deceased before his

murder, inducement by her to the deceased to come at the

residence of A2 and her active participation in destroying

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the dead body are stated to be sufficient circumstances

which would lead to irresistible conclusion of the existence

of conspiracy. Criminal conspiracy is defined under Section

120(A) of the Indian Penal Code as under: "Definition of@@

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criminal conspiracy. When two or more persons agreed to do,

or cause to be done.

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such

an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit

an offence shall amount to a criminal conspiracy unless some

act besides the agreement is done by one or more parties to

such agreement in pursuance thereof.

Explanation--It is immaterial whether the illegal act is

the ultimate object of such agreement, or is merely

incidental to that object." Section 120B prescribes the

punishment for criminal conspiracy which by itself is an

independent offence, punishable separately from the main

offence. The offence of criminal conspiracy can be

established by direct evidence or by circumstantial

evidence. Section 10 of the Evidence Act introduces the

doctrine of agency and will be attracted only when the court

is satisfied that there is reasonable ground to believe that

two or more persons have conspired together to commit an

offence or an actionable ground, that is say, there should

be a prima facie evidence that the person was a party to the

conspiracy before his acts can be used against the

co-conspirators. This Court in Bhagwan Swarup Lal Bishan

Lal vs. State of Maharashtra [AIR 1965 SC 682] held that

the expression "in reference to their common intention" in

Section 10 - is very comprehensive and it appears to have

been designedly used to give it a wider scope than the words

"in furtherance of" in the English law; with the result,

anything, said, done or written by a co- conspirator, after

the conspiracy was formed, will be evidence against the

other before he entered the field of conspiracy or after he

left it. Anything said, done or written is relevant fact

only "as against each of the persons believed to be so

conspiring as well for the purpose of proving the existence

of the conspiracy as for the purpose of showing that any

such person was a party to it". It was further held: In

short, the section can be analysed as follows: (1) There

shall be a prima facie evidence affording a reasonable

ground for a Court to believe that two or more persons are

members of a conspiracy; (2) if the said condition is

fulfilled, anything said, done or written by any one of them

in reference to their common intention will be evidence

against the other; (3) anything said, done or written by

him should have been said, done or written by him after the

intention was formed by any one of them; (4) it would also

be relevant for the said purpose against another who entered

the conspiracy whether it was said, done or written before

he entered the conspiracy or after he left it; and (5) it

can only be used against a co-conspirator and not in his

favour."

We are aware of the fact that direct independent

evidence of criminal conspiracy is generally not available

and its existence is a matter of inference. The inferences

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are normally deduced from acts of parties in pursuance of

purpose in common between the conspirators. This Court in

V.C. Shukla v. State [1980(2) SCC 665] held that to prove

criminal conspiracy there must be evidence direct or

circumstantial to show that there was an agreement between

two or more persons to commit an offence. There must be a

meeting of minds resulting in ultimate decision taken by the

conspirators regarding the commission of an offence and

where the factum of conspiracy is sought to be inferred from

circumstances, the prosecution has to show that the

circumstances giving rise to a conclusive or irresistible

inference of an agreement between the two or more persons to

commit an offence. As in all other criminal offences, the

prosecution has to discharge its onus of proving the case

against the accused beyond reasonable doubt. The

circumstances in a case, when taken together on their face

value, should indicate the meeting of the minds between the

conspirators for the intended object of committing an

illegal act or an act which is not illegal, by illegal

means. A few bits here and a few bits there on which the

prosecution relies cannot be held to be adequate for

connecting the accused with the commission of the crime of

criminal conspiracy. It has to be shown that all means

adopted and illegal acts done were in furtherance of the

object of conspiracy hatched. The circumstances relied for

the purposes of drawing an inference should be prior in time

than the actual commission of the offence in furtherance of

the alleged conspiracy.

In Kehar Singh vs. State [AIR 1988 SC 1883] it was

noticed that Section 120A and Section 120B IPC have brought

the Law of Conspiracy in India in line with English Law by

making an overt act inessential when the conspiracy is to

commit any punishable offence. The most important

ingredient of the offence being the agreement between two or

more persons to do an illegal act. In case where criminal

conspiracy is alleged, the court must enquire whether the

two persons are independently pursuing the same end or they

have come together to pursue the unlawful object. The

former does not render them conspirators but the latter

does. For the offence of conspiracy some kind of physical

manifestation of agreement is required to be established.

The express agreement need not to be proved. The evidence

as to the transmission of thoughts sharing the unlawful act

is not sufficient. A conspiracy is a continuing offence

which continues to subsist till it is executed or rescinded

or frustrated by choice of necessity. During its

subsistence whenever any one of the conspirators does an act

or series of acts, he would be held guilty under Section

120B of the Indian Penal Code.

After referring to some judgments of the United States

Supreme Court and of this Court in Yash Pal Mittal v. State

of Punjab[1977 (4) SCC 540]; Ajay Aggarwal vs. Union of

India [AIR 1993 SCW 1866], the Court in State of Maharashtra

v. Som Nath Thapa [AIR 1996 SC 1744] summarised the

position of law and the requirements to establish the charge

of conspiracy, as under:

"The aforesaid decisions, weighty as they are, lead us

to conclude that to establish a charge of conspiracy

knowledge about indulgence in either an illegal act or a

legal act by illegal means is necessary. In some cases,

intent of unlawful use being made of the goods of services

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in question may be inferred from the knowledge itself. This

apart, the prosecution has not to establish that a

particular unlawful use was intended, so long as the goods

or service in question could not be put to any lawful use.

Finally, when the ultimate offence consists of a chain of

actions, it would not be necessary for the prosecution to

establish, to bring home the charge of conspiracy, that each

of the conspirators had the knowledge of what the

collaborator would do so, so long as it is known that the

collaborator would put the goods or service to an unlawful

use."

In the backdrop of the legal position relating to the

offence of criminal conspiracy, it has to be seen as to@@

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whether the prosecution proved beyond doubt that A2 had@@

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agreed with A1 to cause the death of deceased Soman in the

manner alleged in the charge-sheet. The circumstances

relied upon by the prosecution to prove the existence of

conspiracy were enumerated by the Trial Court as under:

"(1) The accused 1 and 2 had a revengeful motive to

murder.

(2) Soman was last seen in the company of accused 1 and

2.

(3) The dead body of the deceased was removed from the

quarters of the first accused to the M.L. Pattam boat on

the night of 20.7.1987 and the body was dismembered and

thrown into the rivers.

(4) The hairs collected from the quarters and the boat

were found to be similar with the scalp hairs collected at

the time of post-mortem examination, on scientific

examination.

(5) The deceased was made to write two inland letters

postdating them so as to make it appear that Soman was alive

on the date of those letters.

(6) Recovery of MO3 on the basis of the information

furnished by the first accused".

To prove the first circumstance, the prosecution relied

upon the testimony of PWs 4, 15, 16, and 49. PW4 is the@@

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elder sister of the deceased, PW15 is a clerk in the New@@

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Bank of India, PW16 is a clerk in the Pathiyoor Branch of

Canara Bank and PW49 is the Circle Inspector of Kayamkulam

who was a classmate of the deceased Soman. From their

statements it could be gathered that Soman was having

intimacy with A2 for some time in his student days and their

relationship broke down after his marriage. Some months

prior to the incident, he came across A2 and made attempts

to revive the old intimacy. Such an evidence would not, in

any way, prove that A1 was aware of the revival of the

intimacy between erstwhile lovers. No motive for the

commission of the offence of murder could, therefore, be

inferred from the existence of such a circumstance which is

in no way directly related to be the occasion of death. The

mere fact that Soman had told PW49 that Krishna Kumari A2

had invited him to her house on 18th July, 1987 cannot be so

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stretched to hold that such invitation was in furtherance of

the alleged conspiracy hatched between A1 and A2. There is

no evidence worth any value to show or suggest that A2 was

averse to the revival of intimacy with the deceased or that

she had shared the secret of her love affair and its revival

by the deceased, with A1 with whom she was living as his

wife, though without marriage. The Trial Court was,

therefore, not justified in holding that the prosecution had

proved that A1 was aware of the revival of intimacy with the

deceased and A2. Even if he had known about the intimacy

there was no cause or occasion for A2 to agree with him to

commit the crime of murder. The termination of earlier

relationship between A2 and the deceased could also not be a

cause for her to share a common intention of committing the

crime particularly when she was happily living with A1 and

out of illicit relationship they had, a son was born who was

living at the time of the occurrence. The circumstances

that Soman was seen in the company of A1 and A2 would only

prove the death of the deceased when he was with the

aforesaid two accused persons but that by itself was not

sufficient to hold that A1 and A2 had agreed to kill him

before he came at their residence on 19th July, 1987. There

was commotion in the quarters of A1 on the night of 19th

July, 1987 is a fact established along with the fact that

there were screaming of some woman at that very time. The

screaming of the woman not only suggest the presence of A2

but her reluctance to share the common intention to kill the

deceased or on seeing him being killed, to be horrified.

Similarly, statements of PWs12, 13 and 17 can be taken to

have proved the presence of Soman at the Haripad bus stand

on 18th morning, but not sufficient to hold that A2 was a

conspirator with A1. The factum of the deceased having been

made to write two post-dated inland letters has not been

proved on facts. The Trial Court itself noticed, "no doubt,

there is no material on record to show that Exhibit D-2 was

a letter written under compulsion". Exhibit D-2 and D-11

were not proved in the Trial Court. Exhibit D-2 is not

written on an inland letter. Such a weak circumstance, much

less proved on facts, could not be held to be sufficient to

infer the agreement between A1 and A2 to commit the murder

of deceased Soman. The alleged circumstances relied to show

the existence of conspiracy are such circumstances, which

even when believed, cannot be held to have proved, beyond

reasonable doubt, involvement of A2 in the commission of the

crime of murder. The High Court, while giving A2 the

benefit of doubt rightly held as under:

"Now we will proceed to consider whether there was any

conspiracy between accused 1 and 2 for causing death of

Soman. The mere fact that Soman was persuaded to go to the

quarters is not sufficient to show that 2nd accused had any

intention to finish her paramour off. PW49 (Circle

Inspector of Police) was a friend of Soman. He deposed that

Soman had told him once that 1st accused is in possession of

the letters and photos sent by Soman and that Krishnakumari

would get them from 1st accused and the krishnakumari had

invited Soman to visit her on 18.7.1987. This night, at the

most, show that Krishnakumari would have really intended to

revive her old connection with Soman. Learned Additional

Public Prosecutor contended that as 2nd accused had ventured

subsequent to the death of Soman, to post the letters

written by Soman, the conduct is reflective of a plot

hatched by her and 1st accused together. The said conduct

need not necessarily be reflective of that. In the same

manner as 1st accused drafted PW1 and 3rd accused he would

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have secured the services of 2nd accused subsequent to the

murder.

One circumstance in the above context is relevant as it

has a tendency to absolve 2nd accused from the charge of

criminal conspiracy. When some of the neighbours heard a

commotion on the night of 19.7.1987, they rushed to the

police quarters. PW23 said that it was a female sound and

the word overheard indicated that the female was crying

aloud. It is indicative of 2nd accused witnessing some act

which 1st accused would have perpetrated on the deceased and

on seeing it she would have cried aloud. Then again PW1

said that while he was taking 2nd accused to Changanacherry

her countenance had a grieving look.

We are inclined to think, from the aforesaid

circumstances, that she was only a victim of intimidation

and coercion in doing what 1st accused would have commanded

her to do. We are, therefore, giving her benefit of doubt

in regard to the charge of criminal conspiracy."

After perusing the whole record, scanning the evidence

of the prosecution witnesses and hearing lengthy arguments

from both sides, we are satisfied that the High Court was

right in holding that charge of criminal conspiracy against

A2 had not been proved beyond doubt. She was, therefore,

rightly acquitted of the charge under Section 302 read with

Section 120B of the IPC. However, as she was found to have

actively participated in causing disappearance of the dead

body of the deceased knowing and having reason to believe

that his murder has been committed by A1, was convicted and

sentenced under Section 201 of the IPC.

Shri C.N. Sree Kumar, learned Advocate appearing for A1

in Criminal Appeal No.785 of 1994 submitted that conviction

and sentence of appellant being essentially based upon the

testimony of PW1 was not legal and valid. According to him

PW1 was not a reliable witness and that there were major

discrepancies in his deposition. We are not impressed with

this argument. Prasannan PW1 has been proved to have been

validly granted the pardon under Section 306 of the Code of

Criminal Procedure and the accused-appellant afforded

sufficient opportunity of cross-examining him both in the

committal as well as in the Sessions Case. He has withstood

the cross-examination and proved the factum of the death of

the deceased by A1 and the destruction of his body by all

the accused-persons. An accomplice is a competent witness

and a conviction can be based upon his testimony if it is

otherwise corroborated in material particulars. Both the

Trial Court as well as the High Court have found on facts

that the death of Soman was a case of homicide for which A1

was responsible. PW1 was the driver of a boat in which

personnel of Ramankiri Police used to undertake their

journey. On the date of occurrence a young man accompanying

A2 came to the room of A1. Despite there being defects in

the boat, the witness was asked by A1 to arrive at 12o Clock

in the night on the west side of NSS School and threatened

that if he did not come A1 will finish him. He was inquired

as to whether there was a knife in the boat to which he

replied in the affirmative. A1 told the witness to sharpen

the knife. At about 12o Clock in the night he took the boat

to the place earlier notified by A1. Accused No.3 was

accompanying him. Accused No.3 slept in the boat and the

witness went to inform A1 who was sitting on the side wall

of his quarter, along with A2. The young man whom the

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witness had seen a day earlier was lying dead there with one

armless baniyan and underwear. A1 told the witness to carry

dead body. The witness, A1 and A2 together carried the dead

body to the half wall. The witness was told by A1 to go to

the boat and bring Mohanan Accused No.3. The witness and A1

kept the dead body inside the fence. The witness, Accused

No.3 along with A1 kept the dead body on the platform and

kept it upside. The dead body was kept in the boat and the

witness asked to start it. After reaching one kilometer

distance A1 told the PW1 to stop the boat. A1 got the knife

from PW1. He held the head by hairs of the deceased and

started cutting his throat neck by his knife. After

chopping off the head A1 threw it in the river. Thereafter

he started cutting the stomach of the dead body and pushed

away it into the river. The knife was also thrown into the

river. In this process A1 was also injured and he got his

leg injury dressed next day in Lurd Hospital. After being

told by some people that a headless human body was seen

floating in the river, PW1 went to the quarters of A1 to

enquire about it. He was told not to worry and not to tell

anybody whatever had happened. The whole of the deposition

of PW1 is the vivid explanation of the manner in which the

offence was committed by A1 in the presence of A2 and A3.

There is no reason to disbelieve the statement of PW1.

Besides his ocular testimony there is sufficient

corrorborative evidence which connects A1 with the

commission of the crime of murder of the deceased Soman.

Learned counsel appearing for A1 could not refer to any

alleged weak link to the circumstances relied upon by the

courts below to show that the testimony of PW1, an approver,

had not been corroborated. The High Court was, therefore,

right in observing:

"While considering PW1's evidence, one broad aspect has

to be borne in mind. In a waterlogged area like Ramankari

transportation is possible only by boat or canoe. If a

crime was committed by a Sub Inspector, the most likely

means of conveyance which he might hackney is a boat. If

there was any boat attached to the Police Station available,

its crew would be the likeliest persons on whom the culprit

may resort for help for disposing of the dead body. There

is no dispute that "M.L. Pattom" boat was so attached to

Ramankari Police Station. PW.38 is the owner of the boat

and he said PW1 was the driver of the boat. So, there is

very strong possibility that PW1's boat would have been

utilised for disposing of the body if 1st accused was the

culprit."

We are not satisfied with the submission of the learned

counsel for the appellant that the conviction of his client

is solely based upon the testimony of witness PW1 and his

deposition is not corroborated in material particulars. The

circumstantial evidence produced in the case is sufficient

to connect the accused with the commission of the crime. It

does not lead to any other inference than the one of his

involvement in the crime. We do not feel any reason to

disagree with the findings of the Trial Court as well as the

High Court in so far as involvement of A1 in the commission

of crime of murder is concerned.

There are no merits in both the appeals which are

accordingly dismissed.

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