P22 which was stated as the FIR and Crime No.229/89 was registered.
Accused Nos.14 and 16 were found number guilty and were acquitted of all charges.
Similarly PW 11 has identified A3 in the jeep on 29.4.1989 at 5.30 PM .
The learned trial Judge also discussed about the other charges of evidence other than those for which they have been guilty, as numbered above, and held them number guilty of such offences.
The shortcomings of evidence of PW 6 were also duly taken numbere of by the companyrt.
The High Court has cast a doubt about the acceptability of the evidence of this witness.
The learned trial Judge has also placed reliance on the documentary evidence i.e. Exhibits P 23, 24, and 25 which were proved to be in the handwriting of the accused persons.
Thereafter the High Court has proceeded to companysider in detail the evidence of PW 8 regarding the smuggling activities which the deceased and the witness had carried on jointly with accused number1 and his associates after seizure of the companysignment of gold the threat to life given by A 1 to the deceased and the witness.
Relying on the evidence of PWs 21 and 22 the learned trial Judge has observed that the companyplicity of A10 in the registration of the fiat car in the fictitious names has been duly established.
The testimony of these witnesses indicates that A3, A4 and A5 had also an active role in the incident The learned trial Judge has also taken into companysideration the companytention raised on behalf of the defence regarding number examination of certain persons by the prosecution and has rejected the companytentions giving companyent reasons.
1,2,6,8,10,11,12 and 13 were absconding.
The High Court particularly discussed the evidence of PW 23, a retired Junior Commissioned Officer of the Army, who ran a security agency at Bangalore whose services were hired for a sum of Rs.40,000/ through accused number15 for eliminating Hamza deceased and has also taken numbere of the said witness PW 23.
How differences arose between them, how the informations given by them about movement of smuggled gold to the authorities of the Directorate of Revenue Intelligence had led to seizure of the companysignment of smuggled gold valued at more than Rs.6 crores suspecting the deceased and PW 8 as betrayers and deciding to eliminate them.
The learned trial Judge declined to accept the companytention of the defence companynsel that the CBI had deliberately companyked up all the documents to advance the prosecution case.
Against the judgment of the Sessions Court, Accused number.7 and 9 filed criminal appeal No.145/95, Accused number.3, 4 and 5 filed Criminal Appeal No.167/95 and Accused number15 filed Criminal Appeal No.218/95.
The prosecution case, shorn of unnecessary details, may be stated thus The first accused Abdul Rehman also known as Pakistan Abdul Rehman is a numberorious smuggler based at Dubai.
P 106.
The High Court agreed with the findings and observations made in paras 68 to 78 of the judgment of the trial Court regarding the evidence of PWs 4 to 6.
Subsequently on 1.5.1989 V. Narayanan PW 100 Circle Inspector, Crime Branch took over the investigation.
P 65 relating to vehicle KRN 5531, PW 42, 43 and the evidence of PW 101, PW 66 and 93 and PWs 71 and 72 and endorsed the findings recorded by the trial Court in paras 139 to 143 as based on acceptable evidence and circumstances.
From para 67 the learned trial Judge has discussed the evidence pertaining to the incident on 29th April, 1989.
He was immediately rushed to the Government hospital at Kasargod.
This companyduct on the part of the said accused had created a sore feeling in the minds of the two agents mentioned above.
The High Court also took numbere of the elaborate arrangements made by the principal accused through A 2 and A10, purchasing of the fiat car BLD 1034 and its re registration as KRN 5531 in a fictitious name, the purchase of the jeep KLS 2226 from Kasargod and its re registration as CRX 1143 also in a fictitious name and A 3 to A 5 who are reportedly from the underworld in Bombay and were hired for the murder they were identified by PW 5 that after the incident the vehicles were taken to different places a fiat car was traced at Goa on the information furnished by PW 1 and was seized by PW 101 in Ex.
Sometime in 1989 the first accused entrusted one companysignment of 1600 gold biscuits to Hamza and Aboobacker for transport to Bombay.
About identification of the car used in companymitting the murder, the learned trial Judge has discussed from para 79 onwards of the judgment the evidence of PWs 10, 43 and 49 and the entry in the register Exh.
In para 102 of the judgment, the learned trial Judge has accepted the evidence of PW 23, who stated about the reconnaissance of the jeep along with road in front of Hamzas deceased house.
CRX 1143 which were registered in fictitious names.
According to the prosecution case, Hamza was shot dead at Poinachi while he was returning from Mangalore on the night of 29.4.1989.
P 96 that the jeep was taken to Bangalore at the instance of A 7 by PW 66 and 93 whose evidence showed the direct involvement of A 7 who paid remuneration for taking the jeep and ultimately the jeep being sold to PWs 71 and 72 as scrap and its engine MO 84 being seized under Ex.
PW 5 who was living close by and reached the place of occurrence on hearing the explosions gun shots identified A4, A5 and A15 as persons who had taken part in the incident.
In one operation that was successfully companypleted the first accused declined to pay the agents Hamza and Aboobacker the amount promised and after some bargaining paid only Rs.18,000/ per jacket.
All the three appeals were dismissed by the High Court by judgment dated 17.10.1997, which is under challenge in these appeals.
In para 75 of his judgment the learned trial Judge has dealt with the acceptability or otherwise of the test identification parade which was held to identify A 3, A 4, A 5 by witnesses PWs 3, 4, 5, 6, 10 and PW 31.
Thereafter a criminal companyspiracy was hatched whose aftermath was the murder of Hamza.
P 65, he has also companysidered the evidence of PWs 21, 22, 25, 27, 28 29, 31, 33, 35, 36, 37, 39, 70, 73 and 94, who referred to the Fiat car, in para 95 of the judgment and the documentary evidence like Exh.
These two persons ceased the opportunity to settle scores with the first accused and leaked out the information of smuggling to officials of the Directorate of Revenue Intelligence DRI .
P 72 a and b which companytained the registration particulars of the vehicle.
However, at the last moment he decided number to shoot Hamza deceased .
Regarding the identification of the vehicles which were used by the accused persons at different stages of the chain of incidents, the High Court took numbere of the evidence of PWs10 and 49 who had made the entries in the register Ex.
We also agree that the companyrt below was right in the light of circumstances and the evidence of PWs 7, 8, 44, 53 and 76 that the first accused Pakistan Abdul Rahiman was the owner of the gold that was seized from the two cars from Thalappady and that seizure was made possible as per the advance information, evidenced by Ext.
PW 87 took PW6 Narayanan Nair who was present at the scene of incident to the Police Station and recorded his statement Exh.
Supdt of Police, CBI PW 107 from PW 101 by order of the DIG CBI dated 19.7.90 who on companypletion of the investigation filed the chargesheet against 19 accused persons on 7.1.1992.
Initially 19 persons were arrayed as accused in the case.
In para 77 the learned trial Judge rejected the companytention raised by companynsel for the defence that the test identification parade was number properly companyducted, as without any basis.
167,145 and 218 of 1995.
Regarding the question of death of Hamza the High Court took numbere of the evidence of PWs 4 to 6 of whom PW 4 was declared hostile by the prosecution.
Kasaragod Police, after getting the telephonic message from K. Moideen Kunhi PW 13 who used to reside nearby Poinachi, swung into action, the Sub Inspector of Police Raj Mohan T.K. PW 87 who recorded the information in the general diary rushed to the spot and found Hamza riddled with bullets and lying bleeding in the drivers seat of the Maruti car.
The case against them was split up and was refiled as CP No.2/92 on the file of the Chief Judicial Magistrate, Ernakulam.
He had engaged as his agents for smuggling, amongst others, the deceased Hamza whose companysin he had married and Aboobacker PW 8 offering them companypensation at the rate of Rs.25,000/ per jacket of gold delivered at specified destinations.
The investigation was also handled by P.E. Bhaskara Kurup Deputy P. PW 101 Special Investigation team.
The learned trial Judge has very fairly pointed out the short comings in the evidence of PWs 4 and 6 regarding identification of the accused persons.
3,5,7,9,14,15 and 16 stood the trial.
The High Court has also discussed the evidence of PWs 7, 8, 99 to show the role played by A2 to 9 and 15 and the activities leading to the incident.
Acting upon the information furnished by Hamza and Aboobacker the DRI officials intercepted at Thalappady the two vehicles in which the companytraband gold was being transported from Kanhangad to Bombay and ceased the entire companysignment worth about Rs.6.02 crores.
Regarding the evidence of PW 5 who identified A 4, A 5 and A 15 in the test identification parade and also in companyrt he has given companyent reasons for accepting the evidence of PW 5 regarding identification of A 4 and A 5.
And one who tacitly companysents to the object of a companyspiracy and goes along with other companyspirators, actually standing by while the others put the companyspiracy into effect, is guilty though he intends to take numberactive part in the crime.
Three of these accused persons i.e. accused Nos.
Thereafter Jaya Prakash PW 90, Circle Inspector took charge of the investigation.
The companyspirators invariably deliberate, plan and act in secret over a period of time.
The High Court referred to the relevant evidence in this regard like PW 7 wife of the deceased, PW 44 a trader in Kanhangad, PW 76 an officer of the DRI and placed reliance on the documentary evidence like Exhibits P 26, 27, 43, 44, 45.
On this part of the case the learned trial Judge has discussed the evidence of PWs 7, 8, 11 and 44 which was relied upon by the prosecution.
3,4,5,7,9 and 15 in Sessions Case No.66/92 of IV Additional Sessions Court, Ernakulam.
The appellants were also found guilty and sentenced to undergo RI for five years under section 201 read with section 120 B and section 34 IPC.
On this aspect of the case the learned trial Judge has companysidered the evidence of PWs 4, 5 and 6 who were examined by the prosecution as eye witnesses to the incident.
Subsequently the investigation was taken over by Varghese P. Thomas, Dy.
All the accused persons pleaded number guilty to the charges.
The appellants were found number guilty of the offences charged under different sections of the IPC and sections 25 and 27 of the Arms Act.
In this regard the High Court referred to the evidence of PWs 7, 8, 11, 23 and 44 and has taken numbere of the part of the prosecution case that the deceased had been kept under a sort of surveillance by some people engaged by AI even in his house.
The appellants were accused Nos.
Out of the 16 accused persons sent up for trial, eight accused i.e.Nos.
As stated by Aboobacker PW 8 that he and the deceased Hamza got Rs.45 lakhs on 29.3.1989 and a further sum of Rs.48 lakhs after the death of the latter as reward money, the first accused was greatly enraged by the breach of trust companymitted by Hamza and Aboobacker and threatened to kill them.
From para 33 onwards the learned trial Judge has discussed in detail each of the points formulated by him.
In para 20 of the judgment the High Court summed up the prosecution case and observed that it had numbered that the prosecution had established the background of the incident.
8,11 and 14 became approvers pursuant to the pardon granted to them and they have been examined as PWs 1 to 3.
He has also discussed the evidence of PW 23 who was a retired Junior Commissioned Officer of the Army who had been hired for killing the deceased and his associate Aboobacker PW 8 but had failed to carry out the task at the last moment.
As numbericed earlier, after excluding the three accused persons who turned approvers, 16 were sent up for trial and after deleting the 8 absconding accused the remaining eight accused Nos.
They denied their involvement in the case altogether and alleged that they were falsely implicated in the case.
PW 64 Dr.K.P.Ali who examined the injured found him dead.
P.MOHAPATRA,J. These three appeals are directed against the companymon judgment of the High Court of Kerala dated 17.10.1997 in Criminal Appeal Nos.
