K.M.Abdulla @ Babu @ Ameer ... vs Deputy Superintendent Of Police
2022 Latest Caselaw 1852 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                &
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
     FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA 1943
                       CRL.A NO.373 OF 2015

     AGAINST THE JUDGMENT IN S.C.NO.280/2007 DATED 29.09.2010
   OF THE COURT OF THE III ADDITIONAL SESSIONS JUDGE, ERNAKULAM

         [CP.4/2003 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM]
                            ----------
APPELLANT/ ACCUSED:

           K.M.ABDULLA @ BABU @ AMEER MUHAMMED
           @ ABDUL AZEEZ MUHAMMED, AGED 54 YEARS,
           S/O.M.A.MUHAMMED @ SUKRI MUHAMMED,
           HOUSE NO.IX/245, KHASI LANE, THALANKARA, KASARGOD.

           BY ADVS.
           SRI.B.RAMAN PILLAI (SR.)
           SRI.M.SUNILKUMAR
           SRI.R.ANIL
           SRI.T.ANIL KUMAR
           SRI.MANU TOM
           SRI.SUJESH MENON V.B.
           SRI.THOMAS ABRAHAM NILACKAPPILLIL
           SRI.M.VIVEK
           SRI.MAHEH BANU.


RESPONDENT/ COMPLAINANT:

           DEPUTY SUPERINTENDENT OF POLICE,
           CBI/SPE, COCHIN.

           BY ADVS.
           SRI.S.MANU, ASSISTANT SOLICITOR GENERAL OF INDIA.

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2022,
THE COURT ON 18.02.2022 DELIVERED THE FOLLOWING:
 Crl.A.No.373 of 2015             - 2 -




            K. Vinod Chandran & C.Jayachandran, JJ.
              ---------------------------------------
                       Crl.A.No.373 of 2015
               ---------------------------------------
               Dated, this the 18th February 2022

                                JUDGMENT

Vinod Chandran, J.

The consequence of violation of the oath of

'Omerta', in Indian settings, is the case projected by

the prosecution. The deceased an active participant in a

smuggling operation turned informer leading to the

seizure of a huge cache of contraband. The Directorate of

Revenue Intelligence [DRI] rewarded him for the seizure

effected with a hefty sum, which prize he could not enjoy

since the price of betrayal was, his very life.

2. The story, rivalling the movies commenced

with the deceased-Hamza and PW41, turning informers and

in retaliation the former being shot dead. The

investigation changed hands from the local police to the

Crime Branch and ended with the Central Bureau of

Investigation [CBI] filing a final report arraying 19

accused. Three turned approvers, eight were absconding

and eight stood trial in which six were convicted and two

acquitted. The appellant herein originally arrayed as A2,

was arrested in Bombay in a narcotics case, from where he

was brought to Kerala for production before the CJM. He

jumped custody but was again arrested by the Sree Lankan

Police, consequent to which he was brought for trial

before the Special Court.

3. The story unfolding is that one A.P.

Abdurahiman @ Pakistan Abdurahiman (A1), a close relative

of the deceased-Hamza, was running a smuggling operation

in which Hamza and PW41 were also active members. In 1989

there arose disputes with respect to remuneration, given

to the transporters, which led to Hamza & PW41 turning

informants. Two tips given to DRI Officials turned futile

but the third ended in the seizure of 16 jackets, each

with 100 gold bars, being seized by the DRI officials at

the Thalappady Check Post on 12.02.1989. The detention

and seizure of the contraband being on the information

supplied by Hamza and PW41, they were entitled to a

reward of Rs.93 lakhs, the first installment of which was

received in the life time of Hamza. On 29.04.1989 Hamza

who was travelling in a Maruti car was waylaid and shot

dead by his former associates and hired assassins. The

assailants came to the scene of occurrence in two

vehicles, a Fiat car and a Jeep. The victim, in the

driver's seat of a Maruti car, was shot multiple times,

injuring him grievously, resulting in his death.

4. Sri.B.Raman Pillai learned Senior Counsel,

instructed by Advocate Sri.Mahesh Banu, contends that

there is no legal or admissible evidence inculpating the

appellant/accused either in the allegation of conspiracy

or in the crime proper. PW3 and PW55 are the eye

witnesses examined, who does not identify the appellant

from the scene of occurrence, where the shots were fired

at the deceased. In the earlier case, ten eye witnesses

were examined of which eight were given up in the present

trial. The evidence with respect to the vehicles used for

the crime proper is sketchy. There is nothing to prove

that the vehicles were procured in furtherance of the

conspiracy. Even as per the evidence of the prosecution,

the Jeep and car were purchased on 04.06.1988 and

08.02.1989. The seizure of contraband by the DRI on

information supplied by the deceased is on 12.02.1989;

which is projected as the motive for the killing. The

appellant has not been seen with the vehicles or inside

the vehicles. PWs.49 and 51 speak of having taken a Jeep

to Bangalore. PW51 does not identify the appellant and

PW49's identification is unbelievable. PW49 has seen the

appellant only once and he identifies the appellant in

the dock after 20 years. The Court has found both the

said witnesses to be accomplices; whose testimony can be

believed only if there is corroboration, but still relied

on them. PW46 is another witness who is treated as an

accomplice by the Court below. PW46 was used by A1, in

his operations, but he does not speak of any association

with the appellant. The reference to the appellant by

PW46 in his testimony is only hearsay.

5. Reliance has been placed by the Court below

on the evidence of PW1 and PW4 to find the involvement of

the appellant in the conspiracy. Reliance is also placed

on the diary entries in Ext.P2 which are not in the same

handwriting found in Ext.P1. Ext.P1 is of dubious origin,

said to be in the handwriting of the deceased. PW4 said

that the letter was written in his presence and he had

handed it over to the addressee. PW4 also said that the

letter was written when nobody else was present, which

would belie the contention of PW1 that she saw her

husband writing the very same letter. According to PW1,

Ext.P1 was in her possession, the same having not been

dispatched to the addressee; contrary to PW4's testimony.

In any event there is nothing incriminating in the diary

entries but for an apprehension that A1 would level a

threat through the appellant. The evidence of PW41

regarding the presence of the appellant, near the house

of Hamza is on a date long prior to the crime proper and

the vehicle in which he is alleged to have been seen was

not clearly identified. On the allegation of conspiracy

the learned Senior Counsel relied on Purushothaman v.

State of Kerala [AIR 2006 SC 35], Yogesh @ Sachin

Jagadish Joshi v. State of Maharashtra [AIR 2008 SC 2991]

and Parveen v. State of Haryana [Manu SC/1190/2021].

Regarding the reliance placed by the prosecution on the

S.164 statement of PW46 it is pointed out from his own

testimony that he was kept in the custody of the CBI and

browbeaten to depose against the appellant. He was

accompanied, to the Magistrate and back, by CBI

officials, who would have tutored and coerced him, with

the threat of arraying him as an accused. It is pointed

out that but for the seven persons convicted initially,

all others have been acquitted.

6. Sri.S.Manu, learned Assistant Solicitor

General, points out that in the very judgment confirming

the conviction of some of the co-accused, Firozuddin

Basheeruddin v. State of Kerala [(2001) 7 SCC 596], the

Hon'ble Supreme Court has succinctly spoken about the

elements leading to conspiracy. It is argued that the

conspiracy concludes only with the destruction of

evidence and the appellant had a major role to play in

removing the vehicles from the State and effectively

demolishing it. PWs.34 and 43 are relied on to show that

the engine of the Jeep having registration No.CRX 1143,

with identical chassis and engine number, was recovered

from PW60, who dismantled the vehicle. The vehicle was

allegedly handed over to PW60, by A17 who stood convicted

in the first trial. The engine and chassis number are

available in the seizure mahazar. Though there was a

confusion raised as to whether the number noticed by the

eye witnesses at the scene of occurrence was 1143 or

1149; PW43's evidence clearly establish CRX 1149 being

the registration number of an Ambassador car. That the

vehicle was taken to Bombay for disposal and dismantling,

which was effected through A17 and PW60, has been proved

by PW49 and PW51. It is argued that as per the cited

decisions, the conspirators if acting in cohort; even if

they were unknown to each other, there can be a

conviction if the participation of any of the

conspirators at any point, is established.

7. The testimony of PW46 is projected as very

crucial. He had specifically spoken of his stay in Bombay

where the premises was rented out by the appellant and so

was the rent paid by him. PW46 also spoke of his living

expenses having been taken care of by the appellant. His

evidence regarding the sighting of a pistol and a jacket

in the suitcase of the appellant as also the attempt made

by the appellant to create dummy accused, clinches the

issue. The Fiat car was seen by PW7 near the scene of

occurrence and it had passed the check-post at

Bhagamandala as testified by PW50 and PW56; Forest

officials of the Karnataka State manning the said

check-post. PW46 took the vehicle from Bombay to Goa and

PW72 seized it as per Ext.P115. The close association of

the appellant with A1 and the fact that he was the go

between in the smuggling activity, in which Hamza and

PW41 were actively involved, his close relationship with

A1, the diary entries of the deceased naming the

appellant and the sighting of the appellant by PW4 in the

Jeep used for the crime, equivocally establish the

appellant as an active conspirator to the murder of the

deceased. The entire gamut of events as proved by the

prosecution establish the guilt of the accused beyond

reasonable doubt, concludes the learned ASG.

8. The FIS (Ext.P11) was by PW3 who was living

in a rented accommodation adjacent to the scene of

occurrence. He was sitting in front his house when he

heard two three vehicles coming from the north and saw

its lights. One of the vehicles overtook another and

braked with a sound and a little later there was the

sound of a shot. PW3 ran to the spot and before he

reached there heard another shot. He saw a Maruti Car on

the east of the road facing south and in its front a Fiat

Car facing south-east with a jeep behind the Maruti Car.

He saw two three persons standing in the road and one

person sitting inside the Maruti Car. The person sitting

in the Maruti Car implored not to kill him, when one of

the persons standing outside said that he will not be

left free. PW3 hid in the shadows, on the western side of

the road. Hearing the shots, local people converged at

the spot, when the assailants got into the Car and the

Jeep; which sped away in opposite directions. PW3 ran to

the Maruti Car and saw a person in its front seat with

blood all over his body. The Police reached the spot on

being informed over the telephone by somebody. The

injured in the Maruti Car was taken to the Hospital by

the police. PW3 was also taken in a Jeep by the police.

When they reached Kasaragod it was informed that the

injured had died. Though PW3 did not notice the details

of the car he spoke of the number of the Jeep being CRX

1143, as spoken of by the locals who converged on the

spot. He was informed that the deceased was one Hamza, a

resident of Mouval at Pallikkara. The shots were fired

from a pistol held in the hand. PW3 deposed in tune with

the FIS and PW55, another eye witness corroborated; but

both did not identify the appellant.

9. PW1 is the wife of Hamza and through her

Ext.P1, a letter written by Hamza, was marked to affirm

the handwriting on Ext.P2 and P3 diary entries;

specifically Exts.P2(a). Ext. P3 was not relied on by the

prosecution, since the entries are made in January, 1988.

PW1's evidence is to the effect that her husband was

actively involved with A1 in smuggling activities, who

was a close relative, married to the daughter of her

father's elder brother. She is also familiar with the

appellant, closely associated with her husband. Two

months before the death of Hamza, he purchased two cars;

one a white Ambassador and a blue Maruti; of which the

latter was parked in their house and the Ambassador in

Aboobacker's (PW41) house.

10. On the day when the contraband was seized

Hamza was with the appellant, one Syed Mohammed and PW41.

Abdul Majeed, a car driver and neighbour took the car

parked in their house and on the next day the seizure of

contraband from Thalappady was reported. The arrest of

Majeed and Azeez was also reported. She understood that

the seizure was of the gold taken by her husband. When

her husband returned home, she enquired about the seizure

and he told her that himself and PW41 had passed on the

information which led to the seizure of the gold

belonging to A1. He also expressed dissatisfaction in the

activities carried on by him for the past few years which

he intended to stop. He expected that he will be

handsomely rewarded for aiding the seizure. A1 wanted her

husband to go to Bombay which he did not comply with. She

spoke of there being threats to the life of her husband

levelled by A1 for reason of the contraband seizure. She

spoke also of one incident where certain people came in a

jeep to their house and the appellant and Syed Mohammed

having been inside the Jeep. On the day, her husband was

killed, he left his residence to go to the Court and the

Garage at Kumbalam in his light green Maruthi car. PW4

had gone along with him on that day, in the Ramzan Month

and in the evening when she went out she saw PW4 in the

nearby shop at around 4'O clock. At 9'O clock there was a

crowd in front of her house and around 12 midnight her in

laws came and by 3'O clock she was informed of the death

of her husband. She also spoke of her husband having told

her categorically that if anything happens to him, A1

will be responsible.

11. PW2 is the Officer of the DRI who spoke of

having maintained a dossier regarding the smugglers in

the area. Hamza was known as a close associate of A1 and

a participant in his smuggling activities. PW2 after an

unsuccessful interception of Hamza developed a very warm

relationship with him. Hamza contacted PW2 in January

1989, with information about the landing of contraband

belonging to A1. PW41 and the deceased had also visited

him at his house in Mangalore and passed on some

information about the expected landing of gold belonging

to A1. PW2 passed on the information to his Assistant

Director, and on his instruction stayed at Kannur, with

an Intelligence Officer; but the landing did not occur.

12. On 11.02.1989 Hamza called PW2 and requested

for an immediate meeting at Kanhangad. PW2 and his

Assistant Director proceeded to Kanhangad and met the

deceased at about 10kms before Kanhangad. Hamza was

waiting for them in a car and spoke of a consignment of

gold belonging to A1 arriving on that night, the

transport of which would be entrusted to Hamza and PW41.

Hamza also requested them to stay at Kanhangad for the

night and PW2 stayed in Radhakrishna Tourist Home at

Kanhangad along with the Intelligence Officer. The room

was taken in the name of Janardhanan at around 3.30 p.m.

He confirmed his signature in Ext.P4 register of the

Tourist Home, marked as Ext.P4(a), the copy of the

receipt (Ext.P5(a)) from Ext.P5 book and Ext.P6(a) carbon

copy of the bill in Ext.P6 bill book. At around 12.30 in

the night PW41 and Hamza came to their room and confirmed

the arrival of the consignment and gave the details of

the vehicles in which the gold will be transported. They

also disclosed the details of the cavities in the vehicle

where the gold would be concealed. This information was

recorded and fingerprint of Hamza and PW41 were taken and

attested with the signature of PW2, in Ext.P7. The

contraband was to be transported on 12.02.1989 through

Thalappady. PW2 also spoke of an incident after the

informers left, which involved a raid carried out by the

Sub Inspector of Police, which was averted when PW2

disclosed his identity.

13. On the next day, between 11.30 and 12.30

noon, Hamza contacted PW2 over telephone and confirmed

the transport in 16 jackets with 8 jackets in each car.

It was also informed that there would be 100 gold

biscuits in one jacket and that the vehicles are

scheduled to pass Thalappady check-post between 1.30 and

3.00 p.m. PW2 immediately informed his Assistant Director

and along with the Intelligence Officer proceeded to

Thalappady. Having confirmed the presence of the DRI team

at Thalappady they came back at the Thalapady bus stand.

At around 2.35 p.m., Hamza and PW41 passed them with the

identifiable vehicles following them. PW2 followed the

said vehicles, which were intercepted at Thalappady check

post. The spot mahazars were marked as Ext.P11 and the

seizure of the contraband by Ext.P9 was also proved.

Later PW2 met Hamza and PW41 at Mangalapuram Harbour and

gave them a carbon slip of the information slip after

entering the number 1600. The contraband was worth around

Rs.6 crores and the informers received an advance reward

of Rs.45 lacs. At the time of disbursement of final

reward Hamza was not alive. The balance Rs.48 lacs was

given to PW41 and the legal heirs of Hamza at Mangalore.

Azees and Majeed who were driving the cars with

contraband were arrested and detained under the COFEPOSA

Act. The two other persons travelling in the car with the

drivers were released.

14. The evidence of PW2 is corroborated on all

material particulars by the other witnesses. PW6 is the

Manager of the lodge in which PW2 and his Intelligence

Officer stayed for the purpose of contacting the

informants and ensuring the seizure. He spoke of the room

booked by PW2 in the name of Janardhanan, proved Exts.P4,

P4(a), P5, P5(a) and P6 and P6(a). Hamza and PW41 came to

his lodge and it was PW30, the Editor of a newspaper

sitting in the reception of the lodge who revealed the

identity of Shahanas Hamza, a bus operator and smuggler,

after they left. Later, when PW41 stood for the Lok Sabha

elections, he recalled that person having come to his

lodge. He also identified the photograph of PW41 from his

Passport, MO10. PW41 and Hamza returned to the lodge,

booked a single room and asked for the people from the

Insurance. They spent a lot of time in the room of the

Insurance people and left the lodge at around 2 a.m after

paying the balance rent amount. PW6 also confirmed that

there was a raid in PW2's room for reason of information

passed on by him, to the police about the presence of

Hamza and the clandestine meeting with PW2, who had

received a number of phone calls. PW30, the Editor

corroborated the version of PW2.

15. Further corroboration is available from the

testimony of PW4 who was with Hamza on the day of seizure

and also on the day of his murder. PW4 spoke of having

accompanied Hamza in his smuggling jaunts twice. The

incident of 12.02.1989 from the morning was narrated in

which the appellant and PW41 were also involved. It

tallies with the narration of PW1. PW4 travelled in the

Maruti Car parked in Hamza's house, driven by Majeed,

which; Hamza said, carried contraband gold. The modus

operandi as spoken of by Hamza was that PW41 & Hamza

would proceed in the front with the Maruti car driven by

Majeed and the Ambassador driven by Azeez following. If

there was any obstruction or possibility of interception,

the pilot car would turn back and in that event the cars

containing the contraband also had to turn back. They

hooked up before the CPCRI, Kasaragod, when Hamza told

them that they would meet at Uduppi and went in the front

followed by the two cars, which were intercepted at the

Talappady Guest House. PW4 travelling with Majeed and

Abdulla, travelling with Azeez were questioned and let

free. PW4 met Hamza after four days and accused him of

betrayal, when Hamza relented to give a share of the

reward. PW41 spoke in tune with the case of the

prosecution about the smuggling operations being

controlled by A1, the difference of opinion he and Hamza

had with A1, the betrayal leading to the seizure of A1's

gold entrusted to them for transportation and the demand

of A1 to go to Bombay for settlement.

16. The first point raised for consideration by

the trial court was whether A1 had entrusted contraband

gold to Hamza and PW41, through the appellant for

transporting the same from Kasaragode to Bombay, in the

month of February, 1989. It is clearly established that

A1 was running a smuggling ring and the appellant and

PW41 were active participants. The presence of the

appellant on the morning of the seizure, prior to the

vehicles containing the contraband beginning their

journey, is also proved. Hamza and PW41 arranged the two

drivers Majeed and Azeez to carry out the transportation

in two different cars and they proceeded in the front, in

another car, piloting the contraband. PW41's evidence is

categoric that the gold transported belonged to A1 and

the seizure was made on the information passed on by

himself and Hamza. He corroborated PW1, PW2 and PW4 to

the hilt. The second issue raised is as to whether the

gold so entrusted was seized by the DRI at Thalappady on

the information given by Hamza and PW41. The said fact is

also well established by the evidence discussed herein

above, especially that of the DRI official, PW2. The

third point raised is as to whether A1 conspired with A8

including the appellant to murder Hamza and destroyed the

evidence thereof. The murder having been committed by

reason of a conspiracy stood established in the earlier

trial, where seven persons were convicted which order of

conviction was upheld by the Hon'ble Supreme Court in

Firozuddin Basheeruddin (supra). The question to be

decided now is confined to whether appellant was part of

the conspiracy, since that is the only charge under which

the appellant has been convicted. The lower court has

found that the presence of the accused at the time of

murder of Hamza has not been established and there is no

question of conviction under Section 302 r/w Section 34

of IPC. The appellant was also found not guilty under

section 27 of the Arms Act and Section 201 of the IPC.

The appellant was convicted only under section 120B r/w

Section 302 IPC.

17. The appellant, from the evidence led, was an

active participant in the smuggling activity in which

PW41 and Hamza were also parties. The appellant was a

close relative of A1, as was Hamza. That Hamza betrayed

his comrades by turning informer, resulting in a huge

cache of contraband being seized by the DRI also stands

established. The former colleagues harbored a grouse

against the informers, big enough to even think of

eliminating the traitors, is the motive projected; quite

plausible. The case of the prosecution was also that the

conspiracy was to kill Hamza and blame PW41 for the

murder.

18. The presence of appellant in the house of

Hamza on the morning of 12.02.1989, when the transport of

the contraband gold was initiated is spoken of by the

witnesses. But none speak of the appellant having at any

time, threatened Hamza personally. We find the diary

entries in Ext.P2 cannot be relied on to find the

appellant having been involved in the conspiracy. Ext.P1

is of dubious origin since PW1 says it was written in her

presence and she kept it all along without despatching it

to the addressee. PW4 equally asserts that it was written

in his presence, when he was alone with Hamza and he had

handed it over to the addressee. It was seized by PW65,

from the wife of the addressee by Ext.P12 Seizure

Mahazar. Further from what can be discerned from the

entries in Ext.P2, the person who wrote it had merely

noticed the names of persons, who, he apprehended would

be deputed by A1 to threaten him. It has been

categorically stated that it is just a doubt. Even if the

diary entries were written by Hamza, the appellant being

a close associate of A1, the apprehension was justified,

but the same cannot form an incriminating circumstance as

to the involvement in the conspiracy.

19. PW41 testified that after the seizure, Hamsa

told him about the appellant, Ubbu, Said Mohammed and one

or two fat persons having come in a Jeep to his house.

There was nothing more, stated ie: either of a threat or

an attempt to murder. According to PW41, Hamza had gone

to PW13's shop to telephone A1 and ask him whether the

persons in the Jeep, were send to kill him. A1 is said to

have denied the same. In fact a reading of Firozuddin

Basheeruddin (supra), para 20 reveals the following: 'The

High Court further observed that the role of PW23 and

Pemmayya played at the instance of A2 and A15 was not

without significance even if the actual murder was not in

contemplation; that the exercise sought through them was

to give a signal to the deceased of the impending danger

to his life' (sic). There is no evidence led in the

present trial on this aspect and it is not clear whether

it was a threat or a simple warning. The trial court has

relied on the recital which mentions some persons having

come in a Jeep with number KLS 2226 being the earlier

registration number of the Jeep with changed number of

CRX 1143. This finding is erroneous since the number in

the recital in Ext. P2 is KLS 2474. Appellant's name is

seen included, but there can be no reliance placed on it

to find him as involved in the conspiracy.

20. The testimony of PW4 and PW41, though speaks

of threats having been levelled by A1, there is no

whisper about the appellant having threatened Hamza on

behalf of A1. PW13 is another close friend of Hamza whose

telephone Hamza frequently used for reason of the STD

facility available in it. PW13 also spoke of threats

having been levelled against Hamza by A1, as spoken of by

Hamza himself and the enquiries made to PW13, by A1

regarding the whereabouts of PW41 and Hamza, after the

seizure of the contraband. PW13 also does not speak about

the involvement of the appellant or any mention is made

of the appellant in connection with the threats levelled

by A1. The trial court has also found that the

appellant's presence at the time of murder has not been

established, in the scene of occurrence. There is hence

no evidence regarding the involvement of the appellant in

the conspiracy to murder Hamza prior to the murder or any

inculpatory evidence of physical participation in the

crime.

21. The learned ASG had specifically relied on

Firozuddin Basheeruddin (supra) and the principles

enunciated therein, on the aspects of conspiracy, as

extracted from the cited decisions. The Hon'ble Supreme

Court in paragraph 26 noticed that loosened standards

prevail, in a conspiracy trial and the declaration by one

conspirator, in furtherance of a conspiracy, would be

admissible against a co-conspirator, despite hearsay

evidence being normally not admissible in prosecutions.

The unreliability of hearsay evidence, it was held,

would not be applicable in prosecutions for conspiracy.

We cannot but notice that here, there is no declaration

made by any co-conspirator which could be taken of as

having inculpated the appellant herein. In fact none of

the prosecution witnesses testify on the involvement of

the appellant in the conspiracy or even raise an

allegation that the appellant made some threat or

committed any act, against Hamza after the seizure and

before the murder.

22. The learned ASG would argue that a

conspiracy includes not only the commission of the crime,

but also the further acts committed to ensure that the

truth does not come to light, including disappearance of

evidence. The contention is raised on the basis of the

testimony of the witnesses that the vehicles used for the

murder, viz., the Jeep and the Fiat Car were taken away

from the place and dismantled, which activity the

appellant had presided over. The learned ASG also relies

on the broad principles governing the law of conspiracy

as extracted from Superintendent of Police V. Nalini

[(1999) 5 SCC 253]; specifically the 6th guideline which

reads as under:-

"6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left".

We cannot but notice that the declaration is specific in

so far as the meeting of minds before the consummation of

the intended objective.

23. We have already found that there is no

meeting of minds established by the prosecution before

the murder, the intended objective of the conspiracy;

where the appellant was involved. Even if the appellant

is found to have been involved in the dismantling of

vehicles, for the purpose of destruction of evidence, we

cannot but notice that the appellant has been acquitted

under Section 201 IPC and there is no appeal against

that. We extract herewith guideline number 2 from the

cited decision:

"2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would

not make the accused a part of the conspiracy like giving shelter to an absconder".

Here the contention of the prosecution is that the

appellant supervised the clandestine removal of the

vehicles used in the crime; which, if the appellant; is

not connected to the conspiracy to murder, can only be

convicted under section 201 IPC.

24. We are further fortified by the following

decisions: Purushothaman (supra) held:

"To constitute a conspiracy, agreement between two or more persons for doing an illegal act, or an act by illegal means, is a sine qua non. Although the agreement among the conspirators can be inferred by necessary implication, the inference can only be drawn on the parameters in the manner of proved facts, in the nature of circumstantial evidence. Whatever be the incriminating circumstance, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn. Even if we hold that at some point of time, the accused-appellant had some knowledge or suspicion about A-3 indulging in fraudulent misappropriation of gold, entrusted to A-3, in the absence of some positive evidence

indicating agreement to that effect, conspiracy could not be inferred".

Yogesh @ Sachin Jagadish Joshi (supra) declared:

"23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement".

Parveen (supra) reiterated the principle and further held

that: 'A few bits here and a few bit there on which

prosecution relies, cannot be held to be adequate for

connecting the accused with the commission of crime of

criminal conspiracy.'(sic)

25. Be that as it may, we will examine the

contention raised by the learned ASG; with reference to

the witnesses, who are said to have been involved in

carting away the vehicles to outside the State, after the

murder. A Jeep and the Fiat Car were said to have been

used as testified by the eye witnesses, PW3 and PW55.

There is no identifiable description of the Fiat car nor

even the registration number. As far as the Jeep is

concerned, even at the time of FIS, the number as spoken

of by the people who converged at the scene of

occurrence, was stated as CRX 1143. We will deal with

both these cars separately.

26. With respect to the Fiat Car, the reliance

placed is on PW7, who was waiting at the Bus stop at

Thattummal, around 8 pm on 29.04.1989. A Fiat Car stopped

near him and enquired the route to Bangalore. One of the

passengers was identified in the TIP and before Court

during the previous trial. The trial court has noted that

it is A8; who was absconding at the time of the first

trial. No registration number or identifiable description

was given by PW7. However, a Fiat Car having registration

KRN 5531 passed through Bhagamandala Check-post as

deposed by PW50 and PW56, forest officials who were

manning the check post. It is at best a surmise that

going by the time required to travel from the location of

PW7 to Bhagamandala Check-post, it could be the same Fiat

car. Ext.P115 is the mahazar by which a Fiat car was

seized, by PW72, from the public road in front of Regos

Hotel near Inter-State bus terminal, from which hotel two

accused (A14 & 15) were also arrested. A14 turned

approver in the earlier case and A15 was convicted, as is

evident from the decision in Firozuddin Basheeruddin

(suora). The approvers evidence has not been led in this

case; which leaves the connection of the car with the

crime, or the convicted criminal not having been proved

through the approvers testimony, here.

27. The car, seized had the registration number

KRM 6631 and there were four number plates seen inside

the car with numbers KRN 5537 and CKN 3351 as seen from

Ext.P115. It is from the evidence of PWs.50 & 56 that the

registration number of the Fiat car was discerned as KRN

5531. PW29, the U.D.Clerk of R.T.Office, produced

Exts.P26 to P29 to prove that KRN 5531 is a Premier

Padmini Fiat car, of which the original registration

number was BLO 1034. The Engine and Chassis number in

Ext. P115, the Seizure Mahazar, does not tally with the

said numbers found in Ext, P26, the Registration

Certificate of KRN 5531, Ext.P8, the No Objection

Certificate, Ext.P29, Taxation Certificate, both of BLO

1034. PW72 says that the Engine number and Chassis number

of the vehicle seized was requested to be verified at the

Fiat Manufacturing Company and it was stated to be false.

No evidence was led on that count and even if the engine

and chassis numbers, were tampered with and are not of a

Fiat car, it does not prove that the Fiat car seized is

the one which had registration numbers BLO 1034 and KRN

5531. The documents of KRN 5531 also showed that in

Kerala the vehicle was registered in the name of Raphi

Ahamed, S/o.Abdulla. PWs.15 and 17 to 24 were witnesses

proffered by the prosecution to prove that there is no

address existing as shown in the Registration Certificate

of the Fiat car having number KRN 5531. The registration

number of the said car and the number plates found inside

does not tally, as seen from Ext.P115, with that detected

from the register produced by PWs.50 and 56. There is

also nothing incriminating recovered from the said

Fiat car.

28. As far as the Jeep is concerned, there is

testimony available at the first instance itself as to

the registration number being CRX 1143. However, there

was some doubt aired by PWs.3 and 9, who were at the

spot, that the number was 1149. PW34, a Joint R.T.O.,

proved that a Jeep having registration number MAA 1799

was transferred as KLS 2226. PW10, an Auto Consultant,

testified that the Jeep having number KLS 2226 was

transferred in the name of one B.Abdulla with

registration number CRX 1143. PW43, the Assistant of the

R.T.Office, confirmed the transfer of KLS 2226 to CRX

1143, a Mahindra Jeep (PW50). PW43 also produced

Ext.P49(a) to show that CRX 1149 was an Ambassador Car.

The registered holder of the number CRX 1143 again was a

fictitious person as has been proved by examination of

PWs.31 and 32, the postmen of the locality.

29. The testimony of the witnesses at the scene

of occurrence establish a jeep with registration No.CRX

1143 having been used in the murder of Hamza. However,

the evidence led in this trial does not clearly establish

the vehicle seized as per Ext.P115 as the Fiat car which

was used in the crime. The Jeep is said to have been

dismantled by PW60, who is said to have received the same

from one of the accused, who was tried and convicted

earlier. Despite the elaborate testimonies of witnesses,

it eludes confirmation as to whether the appellant was

associated with any of these vehicles. The prosecution

has relied on PW46, PW49 and PW51 to establish that the

appellant presided over the stealth removal of the

vehicles. We have to immediately reiterate that even if

that fact is proved, it only raises a charge of

destruction of evidence. For Section 120B to be

attracted, necessarily there should be a meeting of minds

proved at any time before the consummation of the

intended objective; the murder of Hamza.

30. PW46 is a driver who had a taxi and also

used to drive around A1 in his own and other vehicles.

His continued association with A1 inspired A1 to make him

a go between in the smuggling operation, for which he had

even rented out a room with a telephone. PW46 was a

conduit for messages from and to A1. His testimony on

relevant facts is only that he took a Jeep with

registration of CRX from Bangalore to Bombay and parked

it near Mohan's Workshop at Adarsh Nagar. He did not

remember the number and there is nothing to connect the

appellant with the Jeep. PW46 acted on the instruction of

A1. After bringing the vehicle to Bombay, PW6 stayed near

the Workshop, for which residence he said that the

appellant was paying the rent. There is no evidence on

this aspect and PW46's testimony is a mere hearsay. PW54

had given the premises on rent through PW53, by Ext.P57

lease agreement. The appellant is not a party to Ext.P57

and both PWs.53 and P54 failed to identify the appellant.

31. The next aspect of PW46's testimony pointed

out is that the expenses of the residents of the rented

accommodation was met by the appellant. This cannot

implicate the appellant with the crime since the

appellant, a close associate and relative of A1, was a

part of the smuggling operations of A1, in which PW46 too

had a role to play. The next aspect is sighting of a

pistol inside the appellant's suitcase; which was

allegedly send to Thirupathur at Madras. Admittedly the

pistol, revolver and walkie-talkie used in the crime were

recovered at the instance of one of the accused, which

recovery was witnessed by PW37. The revolver recovered

from Thirupathur, from the house of the second wife of

PW41, marked as MO49, by PW72 was not confronted to PW46,

and his statement that the one seen at Bombay was taken

to Thiruppathur remains a hearsay. Moreover the mere

sighting of a revolver does not implicate the appellant

in the murder of Hamza. PW46 had also made an allegation

that he witnessed the appellant attempting to proffer

dummy accused in the murder of Hamza. But for the bland

statement made by PW46, the exact recital was not

mentioned by him, despite his asserting that he had been

the scribe after Shafi wrote the first few lines. There

is also nothing to indicate that there was any such

scapegoats offered as accused in the above case. The

further reliance placed is on the testimony of PW46 that

he had seen a Fiat car at Bombay which he heard was taken

to Goa, which by itself is insufficient to connect that

car to the one used in the murder or even to that seized

from Goa as per Ext.P115. The evidence of PW46 does not

inculpate the appellant-accused.

32. PWs.49 and 51 speak of a Jeep having been

delivered to Bangalore. PW49 speaks of having gone to

Kannur stadium with his uncle and stayed in the car when

PW51 spoke to Shafi and another person. He identified the

other person, PW51 met at Kannur, with Shafi, as the

appellant. They came home from Kannur and later, after

the festival (Ramzan) took a Jeep with registration KLL

to Bangalore with PW51, his uncle. PW51 said that, Shafi

came to his house to inform that Assan, the brother of

his brother-in-law, used a Jeep the number of which was

publicised as the one used in the murder of Hamza. Shafi

wanted to park the vehicle in PW51s house. Later PW51 was

summoned to the Highway and asked to take the Jeep to

Bangalore or Bombay. Assan also gave him a numberplate

with KLL and directed him to come to Kannur. At Kannur,

Shafi and Assan came and took PW51 and 49 to the Stadium

where first Assan and Shafi stepped out and then he was

also asked to join them. He said that PW49 stayed in the

car. PW59 testified that there were 8 people at the

Stadium; quite contrary to what PW49 said. Though one of

these persons, at Kannur, was introduced as Atthani (the

nick name of appellant), PW51 did not identify the

appellant. PW49 had seen the appellant twice in his life,

one allegedly at the Stadium and then in Court. There is

also no specific testimony as to the entrustment of the

Jeep having been made by the appellant. PW51 also does

not speak of the registration number of the Jeep parked

in his house and the testimony is that the false number

plate was given later.

33. As we have found, there is nothing indicated between

the seizure of contraband on 12.02.1989 and the murder of

Hamza on 29.04.1989, to indicate that the appellant had

questioned, threatened or even acted with enmity towards

Hamza. The prosecution anchored on the two vehicles and

its stealth transport out of the State; to avoid

detection of the investigating agencies. We have found

that the vehicles used have not been proved to be that

transported out of the State by PWs.46, 49 or 51. A Fiat

car, was seized and so was the engine of a Jeep. These

were not proved to be the one's having registration

number KRN 5531 and CRX 1143. Even if they were so

established, there is no connection established of the

appellant with the carting away of the two vehicles. We

cannot but notice that the evidence led establishes that

the smuggling ring purchases vehicles for the purpose of

transport of contraband. Even the seized contraband, as

per the evidence of PW1 - wife of Hamza - and PW 13 -

close friend of Hamza - were transported in vehicles,

purchased just before the landing of the contraband.

Purchase of vehicles, re-registration in fictitious names

and transport of contraband seems to be a regular and

routine affair as far as the persons involved in the

smuggling operations, which stands established in the

above case. However, the trial is not for the offence of

smuggling and it is for the murder of Hamza in

retaliation to his betrayal leading to the seizure of

contraband by the DRI Officials. We find no iota of

evidence linking the appellant to the murder of Hamza and

the conspiracy hatched, to carry out the crime. The

prosecution has also failed to establish that the

appellant was responsible for the destruction of vehicles

used in the crime. The appeal succeeds and we acquit the

accused-appellant. He shall be released forthwith unless

his continued detention is warranted in any other case

and if he has been released on bail, his bail bonds with

respect to this case shall stand cancelled.

Sd/-

K.Vinod Chandran Judge.

Sd/-

C.Jayachandran Judge vku/-