The main legal point established in the judgment is the requirement for clear and reliable evidence to establish guilt in conspiracy cases, and the lack of evidence linking the accused to the alleged crime.

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 invol