Vijayan v. State Of Kerala .

G.B Pattanaik, J.— These two appeals are directed against the judgment and order of the Kerala High Court dated 21-10-1991 in Criminal Appeal No. 370 of 1986. Vijayan @ Rajan, the appellant in Criminal Appeal No. 43 of 1992 along with Sadanandan, the appellant in Criminal Appeal No. 753 of 1991 were tried in the Court of the Sessions Judge, Ernakulam for having committed the offence under Sections 120-B, 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, 1959 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 IPC and Sadanandan of the charge under Section 302 read with Section 120-B(1) of the Indian Penal Code and sentenced each of them to imprisonment for life and hence these two appeals.

2. The prosecution case is that the two appellants entered into a criminal conspiracy to cause the death of Majeendran who was residing in the city of Cochin. Pursuant to the said conspiracy and being instigated by accused 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 said shots 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 neighbours 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 the uncle of Sadanandan was giving financial help to him. Deceased Majeendran was in business and had received finances from the 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, Ernakulam on 4-7-1984. Though the prosecution examined as many as 70 witnesses and exhibited 110 documents to bring home the charge against the accused persons but there is no eyewitness to the said occurrence. The prosecution, however, relied upon the circumstantial evidence. The learned Sessions Judge examined each of the circumstances 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 appellants of all the charges levelled against them. The High Court by the impugned judgment, however, reappreciated the circumstantial evidence and being of the conclusion that the circumstances those established complete the chain pointing to the guilt of the accused recorded the conviction of the two appellants.

3. Mr Lalit, learned Senior Counsel appearing for the appellant Vijayan submitted that the High Court committed serious error in relying upon the evidence of PW 3 to come to the conclusion that she saw accused Vijayan in the early hours of the date of the 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 circumstances 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.

4. Mr Gopal Subramanium, 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 120-B and the High Court, therefore, committed serious error by convicting Sadanandan on a charge of conspiracy by mere conjecture and not by any legal evidence.

5. Mr Raju Ramachandran, learned Senior Counsel appearing for the State, however, submitted that the evidence of PW 3 could be relied upon even if test 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 the occurrence during the early hours and shot at the deceased. According to Mr Ramachandran, the evidence of PWs 3, 4 and 9 in fact constitutes a complete chain of events pointing to the guilt of the accused, and therefore, the High Court was fully justified in recording the conviction of the appellants.

6. 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 at by somebody in his own house during the early hours of 9-10-1981 and on account of such gunshot injury, he succumbed. PW 3 was the maidservant of the deceased and according to her evidence, during the early hours when somebody rang the call-bell, she went out and found a man standing and who wanted her master to come but she replied that her master got up late. Even thereafter when the man again rang 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 had earlier rung the bell and during her evidence in court, she identified the man to be accused Vijayan. Accused Vijayan having surrendered was arrested on 4-7-1984 and the test identification parade was held on 7-8-1984. This test identification parade was discarded by the learned Sessions Judge as it was apparent from the evidence of PW 3 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 identify 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 PW 3 as she identified the accused in court after so many years on the ground that corroboration to the same is available. This conclusion on the face of it is unsustainable. Since the accused Vijayan was not known to PW 3 and the test identification parade having been discarded, the substantive evidence of identification in the 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 PW 3 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 the 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 PW 3 since according to PW 3, the person who rang the bell was not a tall man though the 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 the occurrence, in our considered opinion, is just impossible. The evidence of PW 3 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.

7. 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 the occurrence was returning after supplying milk and then he saw accused Vijayan running away without any chappals and in a worried manner. The High Court relied upon his evidence essentially on the ground that he saw the accused being clad in a blue pant and shirt and running without any footwear. We have gone through the evidence of PW 9. 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 chappals. That apart, his so-called identification in the test identification parade was rightly disbelieved by the Sessions Judge inasmuch as by the date the test identification parade was conducted, not only the photograph of the accused had been shown to PW 3 and in all probability must have been shown to PW 9 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 persuaded by the fact that since a man was found to be running during the early hours without chappals on his feet and in a blue pant and blue shirt, it was possible for PW 9 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 PW 9, we have no hesitation to come to the conclusion that his evidence cannot be relied upon by the prosecution.

8. Another circumstance sought to be established was through the evidence of PW 4, a young girl living a few yards away from the house of the 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 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 and 9, the identification of the accused in the test identification parade cannot be relied upon. The High Court unfortunately appears to have taken a view that the identification of the accused by PW 4 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 the test identification parade, the photograph of the accused Vijayan had been published in the newspaper and because of a certain sensation in the locality, it had a 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 Sessions Judge in this regard and came to hold that the identification of Vijayan by PW 4 could be relied upon. We have examined the evidence of the said PW 4 in great detail and we are unable to subscribe to 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 PW 4 is totally unworthy of credit and, as such, cannot be relied upon for bringing home the charge.

9. PW 7 was the person who saw the accused boarding an autorickshaw which was driven by PW 2. Though PW 7 also had identified the accused in the test identification parade which had been conducted by the Magistrate, PW 61 but in the Court, he could not identify the accused and, therefore, the so-called identification in the 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 PW 7 in the TI 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 PW 7 in the TI parade even though in court he did not identify Vijayan. The autorickshaw driver, PW 2 stated in his evidence that he took the accused in the autorickshaw from Ideal Lodge to Veekshanam Office. According to him, he had taken accused Vijayan during that morning and the second accused came there through the crossroad and he also travelled in his autorickshaw 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 travelled in his vehicle by the police. The 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 PW 2 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 P-9 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 para 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 is alleged to have given recovery of some bullets and two bullets were also recovered from the house of Accused 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.

10. The so-called dying declaration made by the deceased to PW 5 merely indicates that the deceased had made a statement that (sic Sadanandan) 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 referred 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 the occurrence. The learned Sessions Judge severely commented upon the evidence of the handwriting expert who stated in evidence that the writing of the inland letter and the register is 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 the occurrence and that by itself cannot be held to be a clinching circumstance to bring home the charge of murder against accused Vijayan.

11. So far as the circumstances for bringing home the charge of conspiracy under Section 120-B against accused Sadanandan are concerned, the less said the better. To bring home the charge of conspiracy within the ambit of Section 120-B 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 the established facts an 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 material produced even for inferring a conspiracy between the two accused persons to do away with the deceased Majeendran.

12. 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. The criminal appeals are allowed and the bail bonds stand discharged.