2000 Supreme(SC) 1587

2000(6) Supreme 393
SUPREME COURT OF INDIA
(From Kerala High Court)
D.P. Mohapatra, R.P. Sethi, JJ.
State of Kerala -Appellant
versus
P. Sugathan & Anr. -Respondents
(With vice versa)
Criminal Appeal No. 784 of 1994
With
Criminal Appeal No. 785 of 1994
Decided on 26-9-2000
Counsel for the Parties :
For the Appearing Parties : Dr. Jose Varghese, K.M.K. Nair, C.N. Sree Kumar, Ms. Shijatha, Ms. Deepa, S. Manappan, Advocates.

IMPORTANT POINTS
1. An accomplice is a competent witness and a conviction can be based upon his testimony if it is otherwise corroborated in material particulars.
2. Direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the conspirators.

Headnote:(i) Indian Penal Code, 1860-Sections 302 and 120B-Murder-Criminal conspiracy-Appeal against acquittal-Deceased earlier had secret love affair with A2-A1 paramour of A2 at relevant time-A1 caused death of deceased-Deceased allegedly tried to revive earlier intimacy and A1 and A2 conspired together and killed deceased-No evidence to suggest that A2 was averse to revival of intimacy with deceased and shared secret love affair with A1-Circumstance that deceased was seen in company of A1 and A2 not sufficient to hold that A2 agreed to kill him-Screaming of her at relevant time suggest her presence and reluctance to share common intention to kill or seeing him being killed-Alleged circumstances to prove existence of conspiracy not proved-A1 was rightly acquitted of offence u/s 302 and 120B.

       (ii) Indian Penal Code, 1860-Section 120A and 120B-Criminal conspiracy-Proof of 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. Direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the conspirators. 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. 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. (Paras 11, 12 & 13)

       In the instant case 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 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 PWs 12, 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 circumstances, 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 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. (Paras 16 & 17)

       (iii) Indian Penal Code, 1860-Section 302-Murder-Appeal against conviction-Murder by suffocating-Dead body transported in boat, head dismembered and throw in river-Evidence of approver-Approved driver of boat attached to police station where accused was posted-Pardon validly granted-Sufficient opportunity to cross-examine approved given by committal and Trial Courts-Corroborative evidence connected accused with commission of crime-Conviction upheld.

       Held : 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 12OClock 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 12OClock 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 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 corroborative 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 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. (Paras 18 & 19)