Sherimon v. State Of Kerala .

Ranjana P. Desai, J.— The appellant (original Accused 4) along with three others (original Accused 1, 2 and 3) was tried by the Additional Sessions Judge, Kottayam in Sessions Case No. 256 of 2000 for the offences punishable under Sections 302, 392, 120-B read with Section 34 of the Penal Code, 1860 (for short “IPC”). The learned Sessions Judge convicted Accused 1 under Section 302 IPC and sentenced him to life imprisonment. The learned Sessions Judge convicted the appellant and Accused 2 and 3 under Section 324 read with Section 120-B IPC and sentenced them to undergo rigorous imprisonment for 3 years each. They were acquitted of the offences punishable under Sections 392 and 302 IPC. The appellant was sentenced to pay a fine of Rs 1,50,000 which was directed to be distributed as compensation amongst the heirs of deceased, Binoy.

2. The appeals carried from the said orders by the appellant and the other accused were dismissed by the Kerala High Court by its judgment and order dated 3-3-2005. In this appeal, by special leave, the appellant has challenged the said judgment and order to the extent it confirms the conviction and sentence awarded to him.

3. It is necessary to give a gist of the prosecution story. The appellant, Sherimon (A-4) was the managing partner of a financial establishment called “City Auto Finance”, Moovattupuzha which was engaged in the business of advancing money for purchase of automobiles under hire-purchase arrangement. On 7-7-1997 one Shaji (PW 4) entered into a hire-purchase agreement with the said establishment for purchase of an autorickshaw bearing No. KL 5 F 5245 (MO 6) (for convenience “the said autorickshaw”) and obtained a loan amount of Rs 40,000 which was to be paid in monthly instalments. PW 4 committed default in repayment of the loan which prompted the appellant to repossess the said autorickshaw.

4. On 25-3-1999 at about 12 noon the appellant called Shiju alias Kunjumon (A-1), Salim Joseph (A-2) and Ratheesh alias Kannan (A-3) in the office of City Auto Finance, Moovattupuzha and hatched a criminal conspiracy to seize the said autorickshaw from the possession of PW 4 by hook or by crook. A-1 to A-3 were engaged in the profession of vehicle seizure.

5. In pursuance of the conspiracy entered into between A-1 to A-4, on 31-3-1999 at about 8.15 p.m, A-1 approached the deceased, who was driving the said autorickshaw at that time in the area of Government Hospital, Mudakkayom to hire the same for a trip to Anakuzhy for which the deceased agreed. Manoj (PW 1), a friend of the deceased was present. A-1 got into the said autorickshaw along with A-2 and A-3. Thereafter, the deceased sharing the driver's seat along with Manoj (PW 1) drove the said autorickshaw towards Anakuzhy through the Erattupetta-Pathampuzha public road. When they reached the area of Poonjar-Thekkekara Panchayat the accused asked the deceased to stop the said autorickshaw.

6. As directed, the deceased stopped the said autorickshaw. A-3 caught hold of the collar of PW 1 who was sitting along with the deceased in the driver's seat and pulled him out. Meanwhile, A-1 with intent to murder the deceased caught hold of him by his neck and with a knife stabbed him on the left side of his chest and his right armpit. Simultaneously, A-2 with a knife stabbed the deceased repeatedly on the outer aspect of his right arm and on the inner aspect of his inner forearm and below the right buttock and pushed him out of the said autorickshaw. Resultantly, the deceased fell on the road. Thereafter, the accused assailants fled away from the scene of occurrence. The police reached at the spot upon information given by PW 1 on phone and removed the deceased to Pala Taluk Hospital where he was declared dead.

7. On the basis of the information given by PW 1, FIR No. 107 of 1999 was registered and investigation commenced. On completion of investigation, charge-sheet was filed against the appellant and A-1, A-2 and A-3. The prosecution, in support of its case, examined as many as 13 witnesses (PW 1 to PW 13). The prosecution exhibited 30 documents (Exts. P-1 to P-30) and produced 23 material objects (MO 1 to MO 23) in evidence. No defence evidence was adduced. In his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short “CrPC”), the appellant stated that he was innocent and he claimed to be tried. Upon perusal of the evidence, the trial court convicted the appellant and others as above. As already stated, the appeals preferred by the appellant and others were dismissed by the High Court.

8. Mr Lalit, learned Senior Counsel submitted that the learned Sessions Judge fell into a serious error in convicting the appellant for the offence under Section 324 read with Section 120-B IPC. The counsel submitted that admittedly the appellant was not present when the offence was committed. No overt act has been attributed to him. The learned counsel submitted that to prove the charge of conspiracy, the prosecution has to establish that there was an agreement between the accused to do, or cause to be done an illegal act, or an act which is not illegal by illegal means. There must be a meeting of minds.

9. The Senior Counsel submitted that in this case there is no direct or indirect evidence on the basis of which conspiracy could be inferred. No one has stated that the appellant met A-1, A-2 and A-3 or that there was a meeting of minds. Assuming the conviction of A-1, A-2 and A-3 is justified, in the absence of any cogent evidence on record, the appellant cannot be held vicariously liable for the acts of A-1, A-2 and A-3 with the aid of Section 120-B. The learned counsel submitted that, in the circumstances, the order of conviction deserves to be set aside. He added that in case this Court acquits the appellant, he would not insist for recall of the order passed by the trial court directing the appellant to pay Rs 1,50,000 which was to be distributed amongst the heirs of the deceased.

10. The learned counsel for the State, on the other hand, submitted that the impugned judgment is supported by cogent and reliable evidence and merits no interference.

11. We are concerned in this appeal only with the conviction of the appellant under Section 324 read with Section 120-B IPC. The case of the prosecution as against the appellant, in short, is that PW 4 had purchased the said autorickshaw from Jaina Automobiles on 11-7-1997. He had entered into a hire-purchase agreement (MO 4) with City Auto Finance of which the appellant is the managing partner. There was default in the payment of instalments and this had infuriated the appellant. Therefore, according to the prosecution, on 25-3-1999 at about 12 noon in Moovattupuzha, the appellant had entered into a criminal conspiracy with A-1 to A-3, who were engaged in the profession of vehicle seizure, to repossess the said autorickshaw by hook or by crook irrespective of the consequences that may follow and, in pursuance of the said criminal conspiracy, on 31-3-1999, A-1 to A-3 under the pretext of going for a trip, hired the said autorickshaw and at about 10.30 p.m, murdered Binoy, the driver and took away the said autorickshaw.

12. Admittedly, the appellant was not present when the murder was committed. PW 1, a friend of the deceased, who is stated to be an eyewitness to the murder of Binoy does not speak about the appellant's presence. Similarly, PW 2, the autorickshaw driver who claims that he had seen A-1 to A-3 on 31-3-1999 sitting on the verandah of the building owned by CSI Church, has not referred to the appellant. PW 4 who had purchased the said autorickshaw has admitted that he had taken loan from City Auto Finance, Moovattupuzha for purchase of the said autorickshaw. He has identified his signatures on the hire-purchase agreement (MO 4). He has admitted that he had taken a loan of Rs 40,000 from City Auto Finance and that he had to repay the loan amount in 48 instalments. He has admitted that he was in arrears.

13. According to PW 4, he had sold the said autorickshaw to one Shashi and Shashi, in turn, had sold it to Kunjumon. He has stated that he did not know what happened to the said autorickshaw thereafter. This witness has not, in any manner, involved the appellant. He has identified MO 2 as a certificate of registration in respect of the said autorickshaw. He has identified MO 3 as an agreement dated 7-7-1997. He has identified MO 4, the hire-purchase agreement between him and City Auto Finance, against which he had obtained loan.

14. The prosecution has also examined PW 5, Biju an employee of City Auto Finance at Moovattupuzha to establish that on 25-3-1999 at about 12 noon, he had seen A-1 to A-3 visiting the appellant in his office. It is pertinent to note that this witness has turned hostile. His evidence does not further the prosecution case.

15. PW 13 was working as the Circle Inspector of Police, Erattupetta at the relevant time. According to him, on 15-6-1999 the appellant produced before him MO 2, the certificate of registration; MO 3, the agreement dated 7-7-1997 between PW 4 and City Auto Finance; MO 4, the hire-purchase agreement and MO 23, the insurance card of the said autorickshaw. He has stated that he seized the said articles under Ext. P-30, the mahazar.

16. It is undoubtedly true that PW 4 had not repaid the entire loan to City Auto Finance. He was in arrears. However, in our opinion, on the basis of the evidence on record to which we have made a reference hereinabove, it was wrong on the part of the trial court and the High Court to come to the conclusion that the appellant was a party to the alleged criminal conspiracy entered into by the appellant and A-1 to A-3 to repossess the said autorickshaw irrespective of the consequences and, pursuant thereto, on 31-3-1999, A-1 to A-3 murdered the driver of the said autorickshaw and repossessed it. It was wrong to come to the conclusion that the evidence referred to hereinabove indicates the existence of a strong motive on the part of City Auto Finance to repossess the said autorickshaw at any cost. When it is not the case of the prosecution that the appellant was present when the murder took place and when no overt act is attributed to him by any witness, to hold him responsible for the offence under Section 324 IPC with the aid of Section 120-B is clearly improper and illegal.

17. The gist of the offence of conspiracy is the agreement between two and more persons to do or cause to be done an illegal act or a legal act by illegal means. There must be meeting of minds resulting in an ultimate decision taken by the conspirators regarding commission of the crime. In this case, no such evidence has come on record. PW 5 Biju, the employee of City Auto Finance at Moovattupuzha was the only witness examined by the prosecution to prove the alleged meeting between the appellant and the other accused. He has turned hostile. Therefore, there is nothing on record to establish meeting of minds between the appellant and the other accused.

18. Assuming that the appellant had produced certain documents pertaining to the said autorickshaw, it cannot be concluded on the basis thereof that he had entered into a conspiracy with A-1 to A-3 to repossess the said autorickshaw because the loan amount was not repaid and in pursuance thereof A-1 to A-3 murdered the driver of the said autorickshaw. The evidence on record is totally inadequate to come to such a conclusion. It is, therefore, not possible to sustain the impugned judgment.

19. In the result, the impugned judgment and order of the Kerala High Court confirming the conviction and sentence awarded to the appellant under Section 324 read with Section 120-B IPC by the trial court will have to be, therefore, set aside and is accordingly set aside. However, we make it clear that the order passed by the trial court directing the appellant to pay a fine of Rs 1,50,000 is not set aside, in view of the statement made by his counsel, which we have quoted hereinabove. The fine amount, if not already paid, should be deposited in the trial court within a period of three months so that the trial court can take necessary action.

20. The appeal is allowed in the aforesaid terms. The appellant is on bail, his bail bond is discharged.