STATE OF KERALA Vs. AMALRAJ

JUDGEMENT

(1.) Is the complicity of the appellants proved Are there sufficient circumstances pointing to the guilt of the appellants/accused Nos. 1 to 3 Is the conviction and imposition of sentence simultaneously under sections 302 and 201 IPC on the principal offenders justified Is the imposition of a death sentence on the 18 year old first accused justified These are the questions that arise for consideration before us. Three accused persons have been found guilty, convicted and sentenced in a prosecution for criminal conspiracy to commit murder and allied offences (Section 120B read with Section 302 IPC), murder (Section 302 IPC read with Section 34 IPC),. house trespass (Section 450 read with Section 34 IPC) and causing the evidence to disappear (Section 201 read with Section 34 IPC - The 1st accused has further been found guilty convicted and. sentenced under Section 302 read with Section 109 IPC also. The first accused faces a sentence of death., while others face a sentence of imprisonment for life The 4th person (4th accused) who faced indictment along with the appellants was found not guilty and acquitted. Appeals are preferred by the first accused (Crl.Appeal No. 1291/2008) and accused Nos. 2 and 3 (Crl.Appeal No. 268/2010). The death sentence imposed by the court below has been referred to this Court, for confirmation and the same has been numbered as DSR,No. 2/2008. We are proceeding to dispose of the two appeals and the DSR. by this common judgment.

(2.) To the charge/factual allegations first: Deceased MP-Abraham was a SeniorAdvocate of standing at the High Court of Kerala, He was found dead in his Chamber at 7.15 p.m. on 12.7.2007 - Six months" prior to his death, he had engaged the young first accused as an assistant Clerk in his office. The young man (date of birth: 02.04.1989 as conceded by the prosecution) hails from the economically backward section of society. He was getting acquainted with the work in the office and the affluence of the Advocate, his master. He had criminal instincts in him., alleges the prosecution. He committed theft, of M028 mobile "phone belonging to his master. He allegedly stole an ATM card of his employer. He was quick to realise the great potential for criminal behaviour at his new place of work. He had access to the cheque books of his master. He allegedly stole a cheque leaf, forged it and clandestinely siphoned out an amount of Rs. 30,000/- from his master's account, That was as per Ext. P18 cheque dated 16-5-2007. That his misdeeds were not detected allegedly encouraged him to continue his activities, He happened to realise that his master had a very big and fat amount in his bank account, He toyed with the idea of siphoning out funds from the bank account of his master. He knew that he will be caught - if he embarks on bigger game plans, He wanted such money; but wanted to avoid getting caught. Liquidating his master after siphoning out a big amount from his bank account was the idea that the devil planted in his young wicked brain. He contacted the 4th accused, a friend of his, who allegedly had connections with the underworld. The 4th accused in turn contacted his brother the 2nd accused. He brought in the 3rd accused. All the four accused allegedly conspired together, The 1st accused decided to siphon out funds before doing away with the deceased, After siphoning out the funds before giving time and opportunity to the deceased to detect the crime,, he was to be liquidated by the conspirators. Precise date of the conspiracy is not specifically averred by the prosecution. According to the prosecution.- the conspiracy was hatched some time after Ext. P18 cheque was fraudulently encashed on 16-5-2007 and before the date on which the deceased was murdered, i.e., 12.7.2007. The 2nd accused, one of the conspirators,- wanted a mobile phone to execute the object of the conspiracy, M.O28 which was stolen from the possession of the deceased by the 1st accused was handed over by the 1st accused to the 2 accused after obtaining the connection in the name of a relative of the 1st accused. Accused Nos. 2 and 3 thereafter started making arrangements to implement the object of the conspiracy. A motor cycle was requisitioned for the purpose., under Ext. P35, They procured M.O1. a bundle of waste cotton allegedly for the purpose of suffocating and strangulating the deceased. They allegedly purchased plastic wire of which M.O6 and M.O13 are portions.- for the purpose of being carried to the scene of the crime allegedly to tie the hands of the deceased and to immobalise him before they could, attempt to kill him by passing electric current through him. They purchased an electric pin and wire of which M.O.11 is the remnant to facilitate such attempt to electrocute the deceased. They were ready for the operation. With the help of the 3rd accused, the 1st accused withdrew an amount of Rs. 3 lakhs on 10.7.2007 under Ext. P19 forged cheque. Before the actual criminal operation of the conspirators, on 11-7-2007, a further amount, of Rs. 5 lakhs was withdrawn by the 1st accused using the forged Ext. P20 cheque. Of the amount so siphoned out. Rs. 6 lakhs was deposited by the 1st accused in the name of PW 10 Sheeba in an account maintained by her. Accused Nos. 1 to 3 allegedly converged at the office of the deceased Advocate on the evening of 12-7-2007. Accused Nos. l and 2 were in contact making use of M028 and MO30 mobile phones which they had in their respective possession, All the three allegedly trespassed into the office of the deceased and there in prosecution of the common object of the conspiracy, they attacked the deceased, strangulated him and caused his death- The prosecution has a case that an attempt was made to cause his death by passing electric current. But that attempt did not succeed and that is why they resorted to manual strangulation and smothering of the deceased. The miscreants went away from the scene of the crime unnoticed by anyone. The deceased did not on home (his house "was adjacent, to his office) as Usual on that evening to watch the TV news and his wife contacted PW1 a young Advocate neighbour. On that note of alarm,. PW1 went to the office of the deceased and it was he who found the deceased lying dead there, A portion of MO1 M02, M06 and MO11 were found at the scene, The prosecution has a case that MO 12 towel was found to be missing from the scene of the crime, PW1 lodged Ext. Pl complaint before the police, Ext JP1 (a) FIR was registered by PW43 on the basis of Ext. Pl, The police had no clue of the possible offenders. It appears that for some period initially "they groped in the dark. Ultimately, siphoning out of the funds was ascertained and the police resolved the mystery and identified the conspirators/offenders. Final report, was filed by PW46 after completing the investigation.

(3.) The case was committed to the Court of Sessions, Cognizance was taken by the learned Sessions Judge. The accused denied the offences alleged against them. Thereupon the prosecution examined PWs 1 to 46 and proved Exts. P1 to P85. Mos 1 to 42 were also marked by the prosecution.