IMPORTANT POINT
Murder, house trespass and criminal conspiracy – By very nature of offence of conspiracy, being hatched in secrecy, no evidence of common intention of conspirators can be normally produced before Court – Offence can be proved largely by inferences from acts committed or words spoken by conspirators in pursuance of a common intention.

JUDGMENT :

K.VINOD CHANDRAN, J.

1. A very common place altercation escalated into a terrorizing attack leading to the death of a person and injuries to three others. The investigation changed hands several times, which also had political overtones, despite which the prosecution resulted in the conviction by the Trial Court of all the accused for the offences punishable under Sections 143, 147, 323, 324, 427, 449 & 302 read with Sections 149 and 120B of the Indian Penal Code, 1860¹[The IPC]

2. The sixth accused, the appellant herein, who was roped in on the charge of conspiracy, for the earlier incidents, his presence at the crime scene and the exhortation made to kill, was handed down the sentence of death, being the main conspirator and the others were sentenced to imprisonment for life. In appeal, the High Court acquitted the fifth accused and modified the conviction of accused No.1 to 4 and altered the conviction under Section 302 read with Section 149 of IPC to Section 304 Part II read with Section 34 of IPC and convicted the sixth accused, who is the sole appellant herein under Sections 323, 324, 427, 450 and 304 Part II of IPC read with Section 120B of IPC. The appellant herein was sentenced under Section 450 read with Section 120B to undergo rigorous imprisonment for 5 years together with fine of Rs.10,000/- and also sentenced to RI for 10 years under Section 304 Part II read with Section 120B of IPC with a fine of Rs. 25,000/- and default sentences of one year each. The sentence for the offences under Section 323, 324, 427 of IPC by the Trial Court stood confirmed.

3. We heard Sh. Abhilash M.R learned counsel appearing for the appellant. It was argued that A6 was roped in as the main conspirator who had not joined the frontal attack alleged by the prosecution on the deceased and his family members. A5 was acquitted and A6, whose role was identical to A5, was convicted, erroneously. It is argued that PWs 1 to 3, the daughter- in-law, son and wife of the deceased did not name A6 in the initial statement given under Section 161 of the Code of Criminal Procedure, 1973²[The Cr.P.C.] and was included only later in the statements given under Section 164 Cr.P.C. The reliance placed on PW7 is untenable since he belongs to a rival political party and there were cases pending between him and A6, clearly indicating an intention to somehow inculpate A6.

4. Even if the attack based on a conspiracy, as alleged by the prosecution is believed, none of the accused carried any weapons into the house of the deceased. The wooden logs which are alleged to have been used by the accused were lying at the scene of occurrence, the house of the deceased. The learned counsel has also placed before us a number of decisions to rubbish the conspiracy theory, set up by the prosecution, which was also not proved. There was only the interested testimony of PW7 pointing to the conspiracy alleged and there is total failure to establish a common intention under Section 34 IPC. The High Court erred in entering a conviction under Section 304 Part II IPC, since no knowledge that the act is likely to cause death can be attributed to A6.

5. We have anxiously considered the judgment of the High Court, which is rather elaborate and deals minutely with the evidence. On facts, the genesis; which also has a bearing on the conspiracy alleged, is with the incident that happened in the afternoon, on the crucial day, in the house of the deceased. A6 along with others came to the house of the deceased to sell coir mats manufactured by Kudumbasree; a self-help group of women, constituted in every Panchayat under the aegis of the State through the local bodies. PW2 was first approached who directed them to the deceased, his father, who refused to make a purchase, despite the insistence of A6. Enraged A6 threw a mat at the deceased and asked him to burn it if he does not want it. The deceased then directed PW2, his son to raise a query in the Ward Council Meeting as to whether t