Sherimon Vs. State of
PRAKASH DESAI, J.
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 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.
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 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
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 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.
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 deceased to
the Pala Taluk Hospital where he was declared dead.
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.
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 7 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.
counsel for the State, on the other hand, submitted that the impugned judgment is
supported by cogent and reliable evidence and merits no interference.
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. 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.
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 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.
prosecution has also examined PW-5 Biju an employee of City Auto Finance at
Moovattupuzha to establish 10 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
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.
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 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 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
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 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
appeal is allowed in the aforesaid terms. The appellant is on bail, his bail
bond is discharged.
(RANJANA PRAKASH DESAI)