TMI Blog2000 (9) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... mum of which was the life imprisonment. The Accused No. 3 tried with them was convicted and sentenced for the offences under Section 201 read with Section 34 of the IPC. The conviction and sentence of A1 was upheld but the conviction of the lady accused A2 under Section 302 IPC was set aside. She was, however, convicted and sentenced under Section 201 of the IPC. Feeling aggrieved, the State has filed appeal No. 784 of 1994 for setting aside the judgment of the High Court and on proof of the existence of alleged conspiracy, to convict and sentence to A2 as well. Against his conviction and sentence under Section 302 and other offences under the Indian Penal Code, the A1 has filed Criminal Appeal No. 785 of 1993 with prayer of acquitting him of the charges. 3. Both the appeals have been heard together and are being disposed of by this common judgment. 4. The facts of the case are that deceased Soman had his college education in the University College at Trivandrum (Kerala) where initially he stayed with his elder sister who was employed in the offence of the Accountant General. After about one and a half years he shifted to the college hostel but continued visiting occasionally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the body of the deceased with a knife supplied by the approver. The head was thrown in the river. The boat again proceeded further. A1 caused many penetrating injuries on the abdomen of the headless body and pushed it also into the waters of Pamba River, apparently with the object to destroy the evidence. 5. As after 18th July, 1987 Soman did not return to his house, his father started inquiring about his whereabouts. Soman's mother, wife, sister and in-laws who were at Thiruvananthapuram were contacted over the telephone to convey the news of his missing and also to ascertain as to whether by any chance, he had reached there. Finding no clue of the missing Soman, all his relations reached to his family house and intensified his search. On 20th July, 1987 an FIR in a man-missing case Crime No. 254/87 was registered at Kayamkulam Police Station. On 22nd July, 1987 PW2 Mathew found a headless body floating in the Pamba River. He contacted the Police at Pulimcunnu Police Station, where on the basis of his statement Crime No. 75/ 87 was registered. PW56 who was investigating Crime No. 75/87 conducted a search of A1's official quarters at Ramankiri on 25th July, 1987 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed earlier,, the Trial Court convicted A1 and A2 and sentenced them to undergo rigorous imprisonment for three years under Section 193, 5 years rigorous imprisonment under Section 201, 6 months under Section 342 and imprisonment for life under Section 302 read with Section 120B of the IPC. All the sentences were to run concurrently. Accused No. 3 was sentenced to undergo rigorous imprisonment for one year under Section 201 read with Section 34 IPC. The High Court relied upon the testimony of the approver but found on facts that the prosecution has failed to prove the conspiracy between A1 and A2 before the murder of Soman and acquitted her for offences under Section 302 and 120B, IPC. However, she was found to be guilty of the offence punishable under Section 201 IPC and sentenced to the period of imprisonment she had already undergone by that time which was treated as sufficient in the circumstances of the case. 9. Dr. Jose, Varghese, learned Advocate appearing for the appellant-State urged that the High Court committed a mistake of law in holding that the criminal conspiracy between A1 and A2 for murdering deceased Soman has not been proved. According to him there was sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It was further held: In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour. 12. We are aware of the fact that 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 pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whether 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. 14. After referring to some judgments of the United States Supreme Court and of this Court in Yash Pal Mittal v. State of Punjab 1978CriLJ189 ; Ajay Aggarwal v. Union of India AIR 1993 SCW 1866, the Court in State of Maharashtra v. Som Nath Thapa 1996CriLJ2448 summarised the position of law and the requirements to establish the charge of conspiracy, as under: The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods of services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lover 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 or 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reflective of a plot hatched by her and 1st accused together. The said conduct need not necessarily be reflective of that. In the same manner as 1st accused drafted P W1 and 3rd accused he would have secured the services of 2nd accused subsequent to the murder. One circumstance in the above context is relevant as it has a tendency to absolve 2nd accused from the charge of criminal conspiracy. When some of the neighbours heard a commotion on the night of 19-7-1987, they rushed to the police quarters. PW23 said that it was a female sound and the word overheard indicated that the female was crying aloud. It is indicative of 2nd accused witnessing some act which 1st accused would have perpetrated on the deceased and on seeing it she would have cried aloud. Then again PW1 said that while he was taking 2nd accused to Changanacherry her countenance had a grieving look. We are inclined to think, from the aforesaid circumstances, that she was only a victim of intimidation and coercion in doing what 1st accused would have commanded her to do. We are, therefore, giving her benefit of doubt in regard to the charge of criminal conspiracy. 17. After perusing the whole record, scanning the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong 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 PW 1 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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