Sherimon vs State Of Kerala

SHERIMON ... APPELLANT

Versus

STATE OF KERALA ... RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellant (original accused 4) along with three

others (original accused 1, 2 & 3) was tried by the Additional

Sessions Judge, Kottayam in Sessions Case No. 256 of 2000

for offences punishable under Sections 302, 392, 120 (B)

read with Section 34 of the Indian Penal Code (for short,

"the IPC"). Learned Sessions Judge convicted accused 1

under Section 302 of the IPC and sentenced him to life

imprisonment. Learned Sessions Judge convicted the

appellant and accused 2 and 3 under Section 324 read with

Section 120B of the IPC and sentenced them to undergo

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rigorous imprisonment for 3 years each. They were

acquitted of offences punishable under Sections 392 and 302

of the 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. 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.

2. It is necessary to give a gist of the prosecution story.

The appellant-Sherimon (A4) 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

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establishment for purchase of an auto rickshaw bearing no.

KL-5/F-5245 (MO6) (for convenience, "the said auto

rickshaw") and obtained loan amount of Rs.40,000/- which

was to be paid in monthly installments. PW-4 committed

default in repayment of the loan which prompted the

appellant to re-possess the said auto rickshaw. On

25.3.1999 at about 12 noon the appellant called Shiju @

Kunjumon (A-1), Salim Joseph (A-2) and Ratheesh @

Kannan (A-3) in the office of City Auto Finance,

Moovattupuzha and hatched a criminal conspiracy to seize

the said auto rickshaw from the possession of PW-4 by hook

or by crook. A1 to A3 were engaged in the profession of

vehicle seizure. In pursuance of the conspiracy entered into

between A1 to A4, on 31.3.1999 at about 08.15 p.m., A1

approached the deceased, who was driving the said auto

rickshaw 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. A1 got into the said auto rickshaw

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along with A2 and A3. Thereafter, the deceased sharing the

driver's seat along with Manoj (PW-1) drove the said auto

rickshaw 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 auto rickshaw. As directed, the

deceased stopped the said auto rickshaw. A3 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, A1 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, A2 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 right buttocks and pushed him out of the said auto

rickshaw. 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

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deceased to the Pala Taluk Hospital where he was declared

dead.

3. On the basis of the information given by PW-1,

FIR No.107/99 was registered and investigation commenced.

On completion of investigation, charge-sheet was filed

against the appellant and A1, A2 and A3. The prosecution, in

support of its case, examined as many as 13 witnesses (PW-

1 to PW-13). The prosecution exhibited 30 documents

(Exhibits P1 to P30) and produced 23 material objects (MO1

to MO23) in evidence. No defence evidence was adduced. In

his statement recorded under Section 313 of the Code of

Criminal Procedure, (for short, "the Cr.P.C."), 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, appeals

preferred by the appellant and others were dismissed by the

High Court.

6 4. Mr. Lalit, learned senior counsel submitted that learned

Sessions Judge fell into a serious error in convicting the

appellant for offence under Section 324 read with Section

120B of the IPC. Counsel submitted that admittedly the

appellant was not present when the offence was committed.

No overt act has been attributed to him. 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. 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 A1, A2 and A3 or that there was a meeting of

minds. Assuming the conviction of A1, A2 and A3 is

justified, in the absence of any cogent evidence on record,

the appellant cannot be held vicariously liable for the acts of

A1, A2 and A3 with aid of Section 120B. Counsel submitted

that, in the circumstances, the order of conviction deserves

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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.

5. 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.

6. We are concerned in this appeal only with the

conviction of the appellant under Section 324 read with

Section 120B of the IPC. The case of the prosecution as

against the appellant, in short, is that PW-4 had purchased

the said auto rickshaw from Jaina Automobiles on

11.7.1997. He had entered into a hire purchase agreement

(MO4) with City Auto Finance of which the appellant is the

Managing Partner. There was default in the payment of

installments and this had infuriated the appellant.

8 Therefore, according to the prosecution on 25.3.1999 at

about 12 noon in Moovattupuzha, the appellant had entered

into a criminal conspiracy with A1 to A3, who were engaged

in the profession of vehicle seizure, to re-possess the said

auto rickshaw by hook or by crook irrespective of the

consequences that may follow and, in pursuance of the said

criminal conspiracy, on 31.3.1999, A1 to A3 under the

pretext of going for a trip, hired the said auto rickshaw and

at about 10.30 p.m., murdered Binoy, the driver and took

away the said auto rickshaw.

7. Admittedly, the appellant was not present when the

murder was committed. PW-1, a friend of the deceased,

who is stated to be an eye-witness to the murder of Binoy

does not speak about the appellant's presence. Similarly,

PW-2 the auto rickshaw driver who claims that he had seen

A1 to A3 on 31.3.1999 sitting on the varanda of the building

owned by C.S.I. Church has not referred to the appellant.

PW-4 who had purchased the said auto rickshaw has

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admitted that he had taken loan from City Auto Finance,

Muvattupuzha for purchase of the said auto rickshaw. He

has identified his signatures on hire purchase agreement

(MO4). 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. According to him, he had sold the said auto

rickshaw to one Shashi and Shashi, in turn, had sold it to

Kanjumon. He has stated that he did not know what

happened to the said auto rickshaw thereafter. This witness

has not, in any manner, involved the appellant. He has

identified MO2 as a certificate of registration in respect of

the said auto rickshaw. He has identified MO3 as an

agreement dated 7.7.1997. He has identified MO4, the Hire

Purchase Agreement between him and City Auto Finance,

against which he had obtained loan.

8. The prosecution has also examined PW-5 Biju an

employee of City Auto Finance at Moovattupuzha to establish

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that on 25.3.1999 at about 12 noon, he had seen A1 to A3

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.

9. PW-13 was working as a Circle Inspect of Police,

Erattupetta at the relevant time. According to him, on

15.6.1999 the appellant produced before him MO2 the

certificate of registration, MO3, the Agreement dated

7.7.1999 between PW-4 and City Auto Finance, MO4 the

Hire Purchase Agreement and MO23 the Insurance Card of

the said auto rickshaw. He has stated that he seized the

said articles under Exhibit P30, the Mahazar.

10. 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

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to come to the conclusion that the appellant was a party to

the alleged criminal conspiracy entered into by the appellant

and A1 to A3 to repossess the said auto rickshaw

irrespective of the consequences and, pursuant thereto, on

31.3.1999, A1 to A3 murdered the driver of the said auto

rickshaw 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 the

City Auto Finance to repossess the said auto rickshaw 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 offence under Section 324 IPC with the aid of

120B is clearly improper and illegal. 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

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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.

Assuming that the appellant had produced certain

documents pertaining to the said auto rickshaw, it cannot be

concluded on the basis thereof that he had entered into

conspiracy with A1 to A3 to repossess the said auto rickshaw

because the loan amount was not repaid and in pursuance

thereto A1 to A3 murdered the driver of the said auto

rickshaw. The evidence on record is totally inadequate to

come to such a conclusion. It is, therefore, not possible to

sustain the impugned judgment.

11. 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

13 Section 120B of the 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.

12. The appeal is allowed in the aforesaid terms. The

appellant is on bail, his bail bond is discharged.

.....................................................J.

(AFTAB ALAM)

.....................................................J.

(RANJANA PRAKASH DESAI)

NEW DELHI

NOVEMBER 14, 2011