NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.1221 OF 2005

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

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.  

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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.  

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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  

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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                                                       

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