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PETITIONER: VIJAYAN RAJAN

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       16/02/1999

BENCH: G.B.Pattanaik, S.Rajendra Babu

JUDGMENT:

PATTANAIK.  J.

       These two appeals are directed against the  judgment and  order of Kerala High Court dated 21.10.1991 in Criminal Appeal No.  370 of 1986.    Vijayan  @  Rajan  appellant  in Criminal Appeal   No.    43  of  1992  alongwith  Sadanandan appellant in Criminal Appeal No.  753 of 1991 were tried  in the Court of Session Judge Hmakulam for having committed the offence under Sections 120B, 109, 447, 302 and 201 read with Section  34 of the Indian Penal Code and also under Sections 35 and  25  of  the  Indian  Arms  Act  for  the  murder  of Majeendran by  means  of  a  revolver.  The learned Sessions judge acquitted both the accused  persons.    On  an  appeal being  carried  by the State, the High Court by the impugned judgment has set aside the order of acquittal passed by  the learned  Sessions  Judge and convicted Vijayan of the charge under Section 302 read with 120B(1) of the Indian Penal Code and sentenced each of them  to  imprisonment  for  life  and hence these two appeals.

       The  prosecution  case  is  that  the two appellants entered  into  a  criminal  conspiracy  to  cause  death  of Majeendran  who  was residing in the city of Cochin Pursuant to the  said  conspiracy  and  being  instigated  by  caused Sadanandan,  Vijayan went to the house of Majeendran at 6.00 a.m.  On 9.10.1981  and  fired  two  shots  at  him  from  a revolver.   One of the side shot hit the chest of Majeendran and  immediately  after  firing  Vijayan  left  the   place. Majeendran  was  then first taken to the hospital by some of the neighbors and then to the Medical Trust  Hospital  where he succumbed  to the injuries at about 7.10 a.m.  The motive alleged by the prosecution was that Sadanandan was a  rising abkari  contractor and PW 50 who was uncle of Sadanandan was giving financial help to him.  Deceased  Majeendran  was  in business   and  had  received  finances  from  said  PW  50. Sadanandan was perturbed on account of this,  thinking  that his  uncle  would no more render the same financial help for his business and as such he conspired with Vijayan and  gave him a revolver and instigated him to punish Majeendran which he   did   on  the  fateful  day  during  the  early  hours. Sadanandan was arrested on 27.10.1981.  Vijayan  surrendered before  the  Chief  Judicial Magistrate, Emakulam on 4.7.84. Though the prosecution examined as many as 70 witnesses  and exhibited 110 documents to bring home the charge against the

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accused  persons  but  there  is  no eye witness to the said occurrence.   The  prosecution,  however,  relied  upon  the circumstantial evidence.      The   learned  Sessions  Judge examined each of  the  circumstance  which  the  prosecution relied  upon  and ultimately came to the conclusion that the circumstances those established do not  complete  the  chain for  bringing  home  the charges against the accused persons and accordingly acquitted both the appellant of all  charges levelled against  them.    The  High  Court  by the impugned judgment,   however,   re-appreciated   the   circumstantial evidence  and being of the conclusion that the circumstances those established complete the chain pointing the  guilt  of the accused recorded the conviction of the two appellants.

       Mr.  Lalit, learned senior counsel appearing for the appellant Vijayan submitted that the  High  Court  committed serious error in relying upon the evidence of PW3 to come to the  conclusion  that  she  saw accused Vijayan on the early hours of the date  of  occurrence  and  reliance  upon  such circumstance   is   wholly  unsustainable.  Mr.  Lalit  also submitted that a bare reading of the judgment  of  the  High Court would indicate that the Court was persuaded to come to a conclusion that the prosecution has been able to prove its case  beyond  reasonable  doubt  because of the sensation it created in the locality rather than on a proper appreciation of the evidence on record. Mr. Lalit also submitted that the learned  Sessions  Judge  having  discussed  each   of   the circumstance sought to be established by the prosecution and having   given   good   reasons   for  not  accepting  those circumstances the High Court  was  duty  bound  to  consider those  reasons  and  non-consideration  of those reasons has vitiated the impugned judgment of the High Court by  way  of interference with the order of acquittal.

       Mr.   Gopal   Subramaniam,  learned  senior  counsel appearing for accused Sadanandan submitted that there is not an iota of material in support of establishing a  charge  of conspiracy under Section 120B and the High Court, therefore, committed serious error by convicting Sadanandan on a charge of  conspiracy  by  mere  conjectures  and  not by any legal evidence.

       Mr.    Raju  Ramachandran,  learned  senior  counsel appearing  for  the  State,  however,  submitted  that   the evidence   of   PW3  could  be  relied  upon  even  if  lest Identification Parade is discarded and if  her  evidence  is accepted  then  the  prosecution  case is proved that it was accused Vijayan who came on the date  of  occurrence  during early hours  and  shot  at  the  deceased.  According to Mr. ramachandran the evidence of Pws 3,4 and 9 Mr.  Ramachandran the evidence of PWs 3,4, and 9 infect constitute a  complete chain  of  events pointing out the guilt of the accused, and therefore, the High Court was fully  justified  in  recorded the conviction of the appellants.

       To  test the correctness of the rival submissions it would be necessary  for  us  to  examine  the  circumstances relied upon by the High Court and to find out whether on the materials   on   record   it   is   possible  to  hold  such circumstances have been established and  then  to  find  out whether all such circumstances taken together can be said to be  complete  which point to the guilt of the accused rather than their innocence.    It  is  not  in  dispute  that  the deceased Majeendran was shot an by somebody in his own house during early  hours of 9th Oct.  1981 and on account of such

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gun shot injury he succumbed.  PW3 was the maid  servant  of the  deceased and according to her evidence during the early hours when somebody gave a call bell she went out and  found a man standing and wanted her master to come but she replied that master get up late.  Even thereafter when the man again gave the bell she got up and opened the door and then called the  master  and  shortly thereafter she heard the sound and when she went back she did not find the man who dad  earlier given  the  bell  and  during  her  evidence  in  Court  she identified the man to be accused Vijayan.   Accused  Vijayan on  being  surrendered  was  arrested on 4.7.84 and the Test Identification Parade  was  held  on  7.8.84.    This   Test Identification  Parade was discarded by the learned Sessions Judge as it was apparent from the evidence of PW3  that  the photograph  of  accused  Vijayan was shown to her before the Test Identification Parade and further just before  she  was entering  the  Sub-jail to identity the accused somebody had told her to identify the tallest man shown  in  the  parade. The  High  Court  also  agreed  with  the  conclusion of the learned Sessions Judge and did not rely upon  the  same  but queerly  enough  the  High Court relied upon the evidence of PW3 as she identified the accused in  Court  after  so  many years cannot be  relied  upon.    Though  Mr.  Ramachandran, learned senior counsel appearing for the State initially had urged that the evidence of PW3  so  far  as  she  identified accused Vijayan in the Court can be accepted even discarding the  Test  Identification  Parade  but  ultimately could not support the said contention with any authority.  As a matter of prudence it is highly unsafe to accept the identification of accused in Court many years after the occurrence when the Test Identification Parade made shortly after the occurrence has not been accepted.  There are also several other reasons for discarding the evidence of PW3 since  according  to  PW3 the  person  who  gave  the  bell  was not a tall man though height of Vijayan is more than 6 feet.  For a person to just see his face while opening the door and  then  remember  the same  for  the purpose of identification after five years of occurrence, in our considered opinion  is  just  impossible. The  evidence  of  PW3  and  the  circumstances sought to be proved through her evidence by  the  prosecution  cannot  be relied  upon  and  the  High  Court committed gross error in relying upon the same.

       The  next  circumstance  sought to be relied upon by the prosecution and accepted by the High  Court  is  through the  evidence  of  PW  9  who  on the date of occurrence was returning after supplying  milk  and  then  he  saw  accused Vijayan  running  away  without any chappal and in a worried manner.  The High Court relied upon his evidence essentially on the ground that he saw accused being  clad  with  a  blue pant and  shirt  and  was  running without any footwear.  We have gone through  the  evidence  of  PW9.    It  is  indeed difficult  for us to rely upon his evidence and it is highly improbable for a man to remember any person running  on  the street without   chappal.      That   apart  his  so  called identification in the Test Identification Parade was rightly dis-believed by the Sessions Judge in as much as by the date the Test Identification Parade was conducted  not  only  the photograph  of  the accused had been shown to PW3 and in all probability must have been shown to Pw9 but also in all  the local  newspapers  the  photograph had already been printed. In such  circumstances  the  Sessions  Judge  in  our  view, rightly  came to the conclusion that the Test Identification Parade is nothing but a farce and  cannot  be  relied  upon. The  High  Court  on  the  other  hand  appears to have been

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persuaded by the fact that since  a  man  was  found  to  be running  during  an  early hours without chappal on his foot and with blue pant and blue shirt it was possible for PW9 to identify him.  With respect we would say the  reasonings  of the   learned   Judges   of   the  High  Court  are  totally unsustainable and having gone through the evidence of PW9 we have no hesitation to come to a conclusion that his evidence cannot be relied upon by the prosecution.

       Another  circumstance  sought  to   be   established through  the  evidence  of  PW  4, a young girl living a few yards away from the house of deceased.  According to her she heard the sound of somebody running and when she turned  she saw  accused  Vijayan  running  away  after crossing a water channel and was wearing a blue pant and blue shirt.   It  is no  doubt  true  that  she identified accused Vijayan in the Test Identification  Parade  but  for  the  reasons  already advanced  while  discussing  the  evidence  of  PWs  3  &  9 identification of  accused  in  Test  Identification  Parade cannot be relied upon.  The High Court unfortunately appears to  have  taken a view that the identification of accused by PW4 in the Test Identification Parade should be relied upon. We are unable to agree  with  this  conclusion  particularly when  it is apparent from the prosecution material that much before the holding of Test Identification Parade  photograph of  the  accused Vijayan had been published in the newspaper and because of certain sensation in the locality it had  lot of  publicity  and  there was sufficient opportunity for the witnesses being shown the accused person.  In this  view  of the   matter  in  our  considered  opinion  the  High  Court erroneously interfered with the conclusion  of  the  learned Session  Judge  in  this  regard  and  came to hold that the identification of Vijayan by PW4 in great detail and we  are unable to subscribe the view the High Court has taken on the evidence of  the  aforesaid witness.  We also really fail to understand how a witness seeing an unknown man running  away could be  able to identify him at a later point of time.  No special feature was also indicated by the witness.   In  our view  the  evidence of PW4 is totally unworthy of credit and as such, cannot be relied upon for bringing home the charge.

       PW 7 was the person who  saw  the  accused  boarding auto rickshaw  which was driven by PW2.  Though PW7 also had identified accused in the Test Identification  Parade  which had  been  conducted by the Magistrate PW61 but in the Court he could not identify the accused  and,  therefore,  the  so called  identification  in  Test Identification Parade loses its importance.  That apart the reasons  for  vitiating  the Test  Identification parade already indicated would apply so far as the identification by PW7 in  the  T.I.    Parade  is concerned.   In  this  view  of  the  matter  we  are of the considered opinion that the High  Court  erroneously  relied upon  the  so called identification of Vijayan by PW7 in the TI Parade even though in Court he did not identify  Vijayan. The  auto rickshaw driver PW2 stated in his evidence that he took  the  accused  in  autorikshaw  from  Ideal  Lodge   to Veekshanam office.    According  to him he had taken accused Vijayan during that morning and second  accused  came  there through  the  cross  road  and  he  also  travelled  in  his authorikshaw and  then  alighted  from  the  vehicle.    His evidence  has  been  relied  upon by the High Court to bring home the charge of conspiracy under Section 120 B IPC.    It may  be seen that he was examined by the police on 8.10.1982 roughly one year after the occurrence.  It has been elicited from him that he was compelled to say that both the  accused

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travelled in   his  vehicle  by  the  police.    Prosecution re-examined him and brought out from him  on  re-examination that one Joseph had approached him and paid him Rs.500/- for making such  statement  in  the Court.  We have examined the evidence of PW2 and in our opinion he must be held to be  an unreliable  witness  and  no  part  of his evidence could be relied upon.  The High Court in  our  view  committed  gross error in  relying upon his evidence.  Though the prosecution relied  upon  the  letter  Exhibit  P6  thereby  trying   to establish  the offence of conspiracy between the two accused persons  but  the  High  Court  excluded   the   same   from consideration  as  is  apparent  from  paragraph  30  of the impugned judgment, and in our view rightly.  But the further conclusion that  it  was  the  first  accused  who  shot  at Majeendran is wholly unsustainable in view of our discussion of  evidence  already made and the said conclusion has to be set aside.    Though  the  accused  alleged  to  have  given recovery of some bullets and two bullets were also recovered from the house of accused no.  2 but there is no evidence to connect  the  bullets  which were recovered from the body of the deceased are the same as those bullets alleged  to  have been recovered on the basis of statement made by the accused while in  custody.    In  that  view of the matter it is not necessary to delve further into the said circumstance.

       So  called dying declaration made by the deceased to PW5 merely indicates that the deceased  had  made  statement that  Anandan people have killed him but there is nothing to indicate that the deceased knew Vijayan earlier or that  the said  statement,  even  if  accepted  can  be said to be the clinching material to hold that it refer to accused Vijayan. Another item of evidence on  which  the  prosecution  relied upon  is  the handwriting of accused Vijayan in the Register of Ideal Lodge which may indicate that Vijayan  was  staying in Ideal  Lodge  on  the  relevant  date of occurrence.  The learned Sessions Judge severely commented upon the  evidence of  the  handwriting  expert who stated in evidence that the writings of the Inland Letter and the Register are  possibly of  the same person who has knowingly written in a different way.  It may be stated that no admitted handwriting  of  the accused had  been taken for comparison.  That apart from the evidence of the expert it is not established that it was the handwriting of accused Vijayan which was  available  in  the Register of  Ideal  Lodge.   Even otherwise even if the said circumstance is held to be established,  it  indicates  that Vijayan was staying in Ideal Lodge on the date of occurrence and  that  by  itself  cannot  be  held  to  be  a clinching circumstance to bring home  the  charge  of  murder  against accused Vijayan.

       So  far  as  the circumstances for bringing home the charge of conspiracy  under  Section  120B  against  accused Sadanandan  is concerned less said the better. To bring home the charge of conspiracy within the ambit of Section 120B of the Indian Penal Code it  is  necessary  to  establish  that there  was  an  agreement  between  the parties for doing an unlawful act. It is no doubt true that it  is  difficult  to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant  to  the said conspiracy. In the case in hand we do not  find  any  materials  produced  even  for  inferring  a conspiracy  between  the two accused persons to do away with the deceased Majeendran.

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       In  the  aforesaid  circumstances  we unhesitatingly hold that the High Court committed serious error in  setting aside  an  order of acquittal passed by the learned Sessions Judge and in convicting the appellants.  In our view and for the reasons already indicated the  prosecution  has  utterly failed to bring home the charges against the accused persons and  the accused persons are entitled to be acquitted of the charges.   We,  therefore,  set  aside  the  conviction  and sentence  passed  by  the High Court and affirm the order of acquittal passed by the learned Sessions  Judge.    Criminal Appeals are allowed and the bail bonds stand discharged.