Chekannur Maulavi Murder Case : Kerala High Court Acquits Prime Accused [JUDGMENT]

Indian Penal Code, 1860 - Sections 302, 120B, 364 and 201 - Chekannur Moulavi Missing / Murder Case.

Moulavi was a religious teacher in a 'Madrassa'. He had his own interpretation of holy 'Koran' and according to the prosecution, his approach was opposed by the orthodox muslim community. He had authored 15 books dealing with the controversial subjects in Islam. He even started a press by name P.K.M. Press at Edappal. He took classes on Fridays to his supporters to explain and propagate his ideology of Islam. That Moulavi had an ideological difference with a major group of Muslim community by itself cannot be a reason to arrive at a conclusion that the accused had an intention to commit murder and he had conspired with others. There is no evidence that any of the accused was involved in any such conspiracy. The case of the prosecution is that A1 and A4 had together gone to Moulavi's house in a jeep. The charge is that he was strangulated to death on 29th July 1993 at about 9.30 p.m by A3, A5, A6 and A7. None of the witnesses have spoken in that fashion and there is no circumstance to point out that any of those accused had strangulated Moulavi. It was only an inference drawn without any material on record. Court below had presumed that Moulavi was murdered since he was not seen after 29/7/1993. It was observed that, had he not been murdered, he would have come to Kalikavu at the appointed time. May be he is murdered, but what is the material adduced by the prosecution to prove the said fact is the question. Having given our anxious consideration to the arguments put forward on either side, we are of the view that even the identification of accused No.1 cannot be proved beyond reasonable doubt. There is substantial contradictions in the version of PW3 and PW21 which by itself cannot be the basis for arriving at a conclusion that A1 was one among the person who had gone to Moulavi's house on 29/7/1993. As far as A4 is concerned, even the Court below observes that he was not even identified by any of the witnesses. Only statement against him is that of PW22, which we have already considered. There is no evidence of conspiracy, of abduction or commission of murder. In the above circumstances, we are of the view that the appeal filed by the first accused is to be allowed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

MONDAY ,THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940

CRL.A.No. 2015 of 2010

AGAINST THE JUDGMENT IN SC 309/2003 of IVTH ADDITIONAL SESSIONS COURT, ERNAKULAM DATED 29-09-2010

APPELLANT/1ST ACCUSED

V.V. HAMZA

BY ADVS.  SMT.DHANYA P.ASHOKAN SRI.ALAN PAPALI SRI.B.RAMAN PILLAI (SR.) SRI.GILBERT GEORGE CORREYA SRI.SOJAN MICHEAL SRI.V.S.BOBAN

RESPONDENT/COMPLAINANT

STATE OF KERALA, REPRESENTED BY THE INSPECTOR OF CBI, CHENNAI,REP.BY THE STANDING COUNSEL FOR CBI,HIGH COURT OF KERALA,ERNAKULAM.

BY ADVS.  SRI.P.CHANDRASEKHARA PILLAI, C.B.I.  SRI.M.V.S.NAMBOOTHIRY, SC C.B.I.  OTHER PRESENT: SRI. SASTHAMANGALAM S .AJITHKUMAR -CBI

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 3.10.2018, ALONG WITH Crl.Rev.Pet.330/2011, CRL.A.462/2011, THE COURT ON 15.10.2018 DELIVERED THE FOLLOWING:

J U D G M E N T

Shaffique, J.

Crl.Appeal No.2015/2010 is filed by the first accused in SC No.309 of 2003 of the Additional Sessions Court, Ernakulam challenging judgment dated 29/9/2010 by which he was convicted and sentenced to undergo imprisonment for life in two counts i.e., for offence u/s 302 I.P.C. and S.120B r/w 302, 364 and 201 I.P.C. and to pay a fine of ₹50,000/- on both the counts.

2. Crl.Revision Petition No.330/11 is filed by defacto complainant challenging the acquittal of accused 2 to 9. The State has preferred Crl.Appeal No.462/2011 challenging the acquittal of the 4th accused. Since all matters relate to the very same issue, those are heard and decided together.

3. Sri.P.K.M.Abdul Hassan @ Chekannur Moulavi (hereinafter referred to as Moulavi) was missing since 27/9/199d. Moulavi was a religious teacher in a 'Madrassa'. He had his own interpretation of holy 'Koran' and according to the prosecution, his approach was opposed by the orthodox muslim community. He had authored 15 books dealing with the controversial subjects in Islam. He even started a press by name P.K.M. Press at Edappal. He took classes on Fridays to his supporters to explain and propagate his ideology of Islam.

4. A crime came to be registered on 31/7/1993 at 6 p.m when PW1 lodged a complaint before Ponnani police station alleging that Moulavi was not seen since 29/7/1993. In Ext.P1, it was stated that a few persons from Kozhikode had come to his house by about 8.30 pm on 29/7/1993 and he had gone with him and thereafter there was no information. The Sub Inspector of Police registered Crime No.129/1993 and investigation was conducted by the Circle Inspector of Police on the very next day. The whereabouts of Moulavi could not be traced out and thereafter investigation was handed over to CBCID. They registered Crime No.205. Even after two years, the investigation did not progress any further and Moulavi could not be traced. By notification dated 10/11/1995, the case was referred to CBI and on the basis of the said notification, the case was handed over to CBI on 12/1/1996. CBI registered FIR reproducing the FIR recorded by the CBCID (Ext.P37). They also filed a report incorporating S.364 of I.P.C. Initially the investigation was conducted by PW39 from 2/8/1996 who examined 88 witnesses and questioned 22 persons. Further investigation was conducted by PW36 from 26/8/1997 to 28/8/1998. PW36 took over investigation on 29/8/1998 till 29/7/1999. Investigation was further continued by PW37. Accused 1 and 2 were arrested on 27/11/2000. A Test Identification Parade (TIP) was conducted on 7/12/2000 and Ext.P35 is the report. PW3, wife of Moulavi identified accused 1 and 2. PW21, Abdul Jabbar identified A1 only. After questioning the accused, PW37 filed a report incorporating S.302 I.P.C. PW40 continued the investigation from 4/3/2002 and filed a final report on 16/12/2002.

5. Prosecution alleged that a criminal conspiracy was hatched at Markaz Arts College, Karanthur, Kozhikode under the leadership of Usman Musaliyar, accused No. 9, to eliminate Moulavi as according to them, he was acting against Islam and was having several followers. The other conspirators were accused No. 2 and 4 to 8. In furtherance of the said criminal conspiracy, accused Nos.2, 5, 6, 7 and 8 proceeded to the house of Moulavi in a Jeep bearing No.KL-11/A 9967 driven by accused No.4 and visited Moulavi at his residence at Edappal in the third week of July, 1993 under the pretext that they were his followers. They also invited Moulavi to Kozhikode to take a class. They offered to pick him up from his residence on 29/7/1993 by evening. Moulavi agreed to go with them and accordingly on 29/7/1993, accused No.4 along with accused Nos.1, 3, 5 6 and 7 proceeded to the residence of Moulavi in a new blue coloured jeep which did not have a registration number. The jeep was subsequently registered as KL-11/A 9967. At Kolappuram, except A1, all others got down and waited there. A1 and A4 proceeded to the mosque at Neduvattom, where they met a person by name Hussain Musaliyar. He was asked for blessing as they were proceeding to do something against Moulavi. Hussain Mussaliar blessed them and accordingly A1 and A4 reached the house of Moulavi at around 8.30 pm on the same day. Moulavi wanted to bring Jabbar (PW21), his employee in the press to stay at his residence as his wife (PW3) was alone. A1 and A4 proceeded to the press in the jeep along with Moulavi and they came back after picking up Jabbar. After dropping Jabbar, they proceeded towards Kozhikode by 9.30 p.m. Prosecution further alleged that when they reached Kolappuram, A3, A5, A6 and A7 joined them and they proceeded to Kozhikode. On the way, it was drizzling. A1 came to the front seat where Moulavi was sitting, so that Moulavi was between A1 and A4. A3, A5, A6 and A7 on instruction from A4, put a cloth around the neck of Moulavi from behind and strangulated him. The vehicle was taken to a place called Chuvannakunnu which was in the possession of A9. A2 and A8 had dug a pit at Chuvannakunnu as instructed by A4. In order to destroy the evidence, the dead body of Moulavi buried in the said pit along with his briefcase and the ligature used for strangulation. The aforesaid acts according to the prosecution constituted offence punishable u/s 120B r/w Sections 364, 302 and 201 of I.P.C. Further, the acts of A1 and A3 to A7 constituted the specific offence u/s 302 I.P.C.

6. It is stated that A3 was arrested on 19/11/2001 and A4 to A9 were absconding. When summons was issued, all the accused appeared in Court and they were released on bail. Prosecution examined PWs 1 to 40 and marked Exts.P1 to P37. Mos 1 to 16 were identified and marked. The defence placed reliance upon Exts.D1 to D16 series and examined four witnesses as DW1 to DW4. The Sessions Court found that there was no evidence to implicate accused Nos.2 to 9 in the alleged offences and accordingly they were acquitted. A1 alone was convicted. It is found that he was the person who had taken Moulavi on 29/7/1993. Though it was observed that the dead body could not be retrieved, Court below had drawn an inference from the available set of facts that Moulavi had been murdered pursuant to a conspiracy and that first accused was identified to have abducted him and after killing him in the night on 29/7/1993, his body was disposed of in some mysterious manner so that it will never be recovered. The Court below basically relied upon the oral testimony of PW3 and PW21 to arrive at the said conclusion.

7. Since a revision had been filed against the acquittal of A2 to A9 and the State has preferred an appeal challenging the acquittal of 4th accused and the first accused had preferred an appeal against his conviction, it is necessary to state in brief the nature of evidence that has been adduced in the matter.

8. PW1 has given the First Information Statement before the police alleging that Moulavi was missing. The FIS is Ext.P1. In Ext.P1, PW1 stated that on 29/7/1993, by about 9 p.m, two persons from Kozhikode had come and picked him up for attending a programme at Kozhikode. According to them, the said two persons came in an unregistered jeep. Crime No.129/1993 was registered at 6 p.m on 31/7/1993 by the Sub Inspector of Police, Ponnani.

9. PW2 has turned hostile to the prosecution. PW2 has been examined to prove that he knew accused 3 and 9 and that he had given a statement to the Magistrate u/s 164 Cr.P.C. He was declared hostile and during cross examination by the Prosecutor, he stated that he had given such a statement as he was threatened by CBI who were outside the Magistrate Court.

10. PW3 is the wife of Moulavi. She in her evidence has stated that she had seen Moulavi for the last time on 29/7/1993 between 8.30 and 9.00 p.m. Two persons had come and taken him stating that he had to take a class on Koran. On the previous day, she was told that some persons may come to invite him at 5.30 p.m on the next day. Since she would be alone, at 5.30 p.m, Moulavi had gone to bring his daughter and at about 6.30 p.m he came alone stating that the persons who had invited him may not come. He thereafter started writing. She was preparing food. At about 8 p.m, she heard her husband opening the door of the dining hall and office room. When she checked up, she saw a Jeep on their courtyard near the office room. Her husband was talking to two persons in the office room. He said that two persons had come to invite him and requested for tea. She prepared tea and gave it to her husband. Husband took the same and gave it to those two persons. She told her husband that she should not be left alone. Moulavi asked her to call his daughter and son-in-law. Moulavi told her that it is already 8.30 p.m, and they have to leave immediately, therefore, he will go and call Jabbar (PW21), an employee of the press. Immediately Moulavi along with the two persons proceeded in the Jeep. She saw two persons and out of the two persons, she saw one person clearly through the door. The other man was sitting near the table. When she asked that those persons were not known to her husband, Moulavi replied that they had come a week back and they are not persons to be worried about. She was asked to pack his things. She packed his dresses and other things. When he came back in the Jeep, it was about 9 p.m. Jeep was stationed near the road. Moulavi came to the house. She asked whether he had called Jabbar and he replied that Jabbar is talking to them near the jeep. She was asked to go along with her daughter the next day for seeing the Doctor. Since he did not have any money, he asked for ₹300/- from Jabbar as loan. He called Jabbar and took ₹300/- from him. He offered to return the money to Jabbar after the Koran class on the next Friday at Kalikavu. She was given ₹150/-. Jabbar was asked to meet him at Kalikavu Koran class the coming Friday and he was asked to sleep in his office room. He said that he will come back after the Koran class on Friday, by night. Moulavi went in the said jeep with the said two persons towards Kozhikode. On Friday, Jabbar called her and said that he was going to Kalikavu with a few books. On Friday, her son-in-law and daughter came. Her husband did not come back. Everybody told her that her husband was taken and murdered. Later she was informed that Moulavi had not attended the Koran class on Friday and he had not attended the Juma prayer on Friday. She stated that she had attended the TIP and she had identified two persons as persons who came on 22/7/1993 and on 29/7/1993. She said that out of two persons who came on 29/7/1993, one of them is in the box. She identified accused No.1. She could not identify the second man. The main attack by the defence counsel in respect of the evidence of PW3 is based on her previous statement. It is argued that, at best, she can have a glimpse of the accused and she was seeing them for the first time. The identification was challenged on the ground that she has shown the accused at Thrissur Guest House, which she denied. She said that she had seen A1 in the jail during TIP. She further deposed during cross examination of A1 that out of the two persons who came on 29/7/1993, one was dark and the other man was fair. One person was taller than A1. When she was asked, whether she had mentioned about a dark person earlier, her answer was that she cannot be blamed if it is not recorded in writing. She was confronted with her earlier statement to the Circle Inspector of Police on 1/8/1993. the question asked was this “[Omitted]” She was asked whether she had mentioned anything else to the Circle Inspector of Police and her answer was that she had mentioned.

11. The omission in the earlier statement was pointed out by the following questions:-

[Omitted]

12. Further, when she was questioned, Ext.D4 portion of CD was marked which reads as under:-

"[Omitted]”

13. She stated that she mentioned about a dark person who does not have much height and was having a short beard. When she was asked why the police or CBCID have not recorded like that, her answer was that they did not deliberately write it.

14. In the cross examination of accused 2 to 4, contradictions have been marked with reference to the previous statements and again cross examination was based on her previous statement about a fair person. Question and answer was as under:-

"[Omitted]".

15. PW4 had stated that he is a follower of Moulavi and that he is a member of Koran Sunnath Society. He deposed that on 29th by noon, Moulavi had called him over telephone. He was informed that Moulavi could not come on 29th. He stated that normally Moulavi used to come on the previous day and on the next day they used to go for Juma together. On 30th, there was a Koran class at Kalikavu. Moulavi did not come on the said day. Since Moulavi did not reach, he himself had taken the class. They enquired about him at about 5.30 in the evening. They could not see Moulavi. Jabbar (PW21) came there. When he was asked about the whereabouts of Moulavi, he said that on the previous day, by 9 pm, two persons had taken him in a jeep to Kozhikode for taking Koran class. Thereafter, they made enquiries in Moulavi's house and had gone to PW1's house. It is thereafter PW1 had made a complaint to the police. He also deposed about the conflict Moulavi had with other Islamic organizations. Accused had cross examined him basically stating that he was also one of the suspects in the crime.

16. PW5 has been examined to prove the ownership of jeep bearing No.KL-11/A 9967. She purchased the jeep on 22/2/1999 from a vehicle seller Abdul Rahiman.

17. PW6 has been examined to prove that he knew accused 5, 7 and 8 and that there are two groups among Sunni Muslims as EK and AP Group. He knows that A7 belongs to Sunni group and does not know to which group A5 and A8 belongs.

18. PW7 is a person who had purchased property known as Chuvannakunnu and according to him, he held it for about two years and sold the same to a person by name Rahim. He was declared hostile.

19. PW8 has been examined to prove the different groups among Muslim community and that accused 1 and 4 had approached him for getting the blessings for the action they proposed to take against Moulavi. He was declared hostile to the prosecution. He deposed that he knew only A9 and he did not know A4.

20. PW9 is a witness who was holding the jeep KL-11 A 9967 for a period of two years. According to him, he had purchased the jeep for his son-in-law Latheef. It was purchased in the year 1996 from Ali Haji. It was sold to a person by name Ahammed Kutty. Vehicle was registered in the name of Aslam, brother of Latheef.

21. PW10 is Ahammed Kutty. He is also examined to prove the ownership of the jeep KL-11A 9967. He purchased the jeep by the end of 1998. He held it for a week and sold it to a person by name Ashraf.

22. PW11 is the person who knew A9. He had purchased the jeep for a person by name Ummar Haji. Ummar Haji sold the jeep to one Azeez. Initially a temporary registration number was given. When Ummar Haji was using the vehicle, it was given Regn.No.KL-11A 9967. He does not know the colour of the jeep. The jeep had met with an accident in which Ummar Haji had sustained injury. Question was asked whether the jeep belonged to Usman Musaliyar. He denied any knowledge. He was declared hostile.

23. PW12 is the brother of Moulavi. He had been examined only to mention about the fact that Moulavi had started an organization by name Sunnath Society and he had several followers.

24. PW13 is an employee of a press conducted by Moulavi. He was examined to prove that several publications were printed from the said press. He denied having knowledge about any of the accused.

25. PW14 is another employee of the press run by Moulavi. He mentioned about publication of the books. He mentioned that during the month of June, two persons had come to see Moulavi. One was fair and the other was a dark person. Moulavi was not there at that time. They waited for some time. They mentioned that they knew Moulavi and the house of Moulavi. At that time Moulavi had come and PW14 was asked as to who they were. They mentioned that they had come to see Moulavi. He knew that Moulavi did not know them. They purchased a book for ₹5. He does not know from where those people had come. PW 14 also does not identify any of the accused.

26. PW15 is the follower of Moulavi. He mentioned about the ideology of Moulavi. He had produced a cassette MO16 during investigation by CBI.

27. PW16 had deposed that he is a follower of Moulavi.

28. PW17 is a worker of Sunni Students' Federation (SSF). He denied having known A9. He was declared hostile.

29. PW18 is a person who had worked for SSF. According to him, he had seen Accused 2, 5, 6 and 8. He does not know any other person. He was declared hostile by the prosecution.

30. PW19 was also a worker of SSF. He denied having seen any of the accused. He was declared hostile.

31. PW20 is a teacher of Madrassa. He is a worker of SSF. He was a Joint Secretary. He does not know Moulavi. He only knew through newspapers. He was also declared hostile by the prosecution.

32. PW21 is Abdul Jabbar. He deposed that he was an employee of the press run by Moulavi. They published books relating to the religion. He was a proof-reader and doing office work as well. He has seen Moulavi for the last time on 29/7/1993 at about 8.30 p.m. He had come to the press the same day between 4.30 and 5.00. He was informed that he had to go to Kozhikode for a religious programme. Later he came to the press at about 8.30 p.m to call him. He used to reside in the top floor of the press. Moulavi asked him to follow him to Moulavi's house. He accompanied him in the jeep. He was sitting in the rear portion of the jeep. There were two other persons of which one was in the driving seat and the other person was sitting behind. Moulavi introduced him to them. The person sitting in the driving seat said that his name is Hameed and he said hello and shook hands with him. Person sitting behind told him that he was Mohammed. They proceeded to Moulavi's house. When they reached Moulavi's house, Moulavi got down and went inside his house to take his suitcase. PW21 got down from the jeep and came near the side where Moulavi was sitting and asked the persons from where they are coming. They said that they are vehicle brokers and had come for sale of vehicle. They also said that they had gone to Moulavi's house and they are going to take Moulavi to Kozhikode. Moulavi asked him to stay in his house and also asked him to come to Kalikavu after the Juma prayers. Moulavi got into the jeep and proceeded towards Kuttipuram. He identified A4 as the person who was driving the jeep and the person who was sitting behind as A1. He further deposed that on that day Moulavi's wife alone was in the house and there was nobody else. He further deposed that next day he had gone to Kalikavu and he reached there by 4.30-5.00. He had taken some books and notices. The books were taken for sale at Kalikavu. He further deposed that he had attended the TIP at Ernakulam Sub Jail. TIP was conducted in the presence of the Magistrate. He identified A1 and had shown him to the Magistrate. He also stated that he did not find out Moulavi at Kalikavu and a complaint was filed by Saturday. One of the omissions pointed out during cross examination was that PW21 had not stated to CBI that he had seen the accused in any light. Certain contradictions were also marked in his evidence. One of the questions asked based on his earlier statement was "[Omitted]”

33. In cross examination, he further stated that he had not talked to those persons while coming from the press until they reached Moulavi's house. But he stated that he could see the person while he was sitting in the back seat. He had also stated that when Moulavi was not found, he had stated to Ponnani Police that he could identify two persons who had come in the jeep. According to him, they would have taken it on record. He further stated that when he had gone to Ponnai police station, PW1, PW3 and PW4 were present. He further stated that he had informed to the Police the description regarding the persons with whom Moulavi had gone. During cross examination, suggestion made was that the accused were shown to him at Thrissur Guest House by CBI and their photographs were also shown. He further stated that he had come to Court twice for giving evidence, that was on 25/3/ and 27/3 and on both those days, he had seen all the accused.

34. PW22 has identified A4. He states that he was running a quarry. While the quarry had to be closed down, A4 with certain persons had come and was forcefully running the quarry. He was not in the place during the relevant time. When he came back, that day evening he saw A4 near a place known as Pallippady Angady. He questioned A4 about his high-handed action in runnung the quarry, he had a verbal confrontation with him. He threatened A4 and then A4 said “I have taken care of Moulavi and nothing has happened. If I do something to you, what would happen.” During cross examination he said that the quarry was stopped during 1997 and it is after one month from the said date that A4 had forcefully started functioning of the quarry. But he does not remember the month or date on which the incident happened. He also stated that he had not given any complaint. He also does not know whether quarry had to be stopped on the basis of the Court order or not. According to him, there was a case. Until it was closed, one Surendran was conducting the quarry. When he was asked whether A4 had come on behalf of Surendran, he said that he does not know. According to the defence, no such incident had happened during 1997 as alleged. In regard to the exact words used by A4, during cross examination, the following question has been asked:-

"[Omitted]”

35. PW23 is the son of Moulavi. He only deposed that his father was a progressive thinking person and the other factions of Muslim community had ideological difference with his father. He was afraid about the life of his father and he also deposed that there were people who opposed his ideology.

36. PW24 is a person who was conducting a press and a bookstall. He is a teacher of Farook College. He has identified the 9th accused. He stated that A9 has connection with Kaarathur Sunni Markas and was working with them. He did not identify A4. He was declared hostile.

37. PW25 is a waiter of Woodlands hotel during 1993. He knew Moulavi and Jabbar. He saw Moulavi on the day for the last time of 29/7/1993 at 9 p.m. He saw Moulavi coming and calling Jabbar and Jabbar following him through the Kuttipuram road.

38. PW26 is the vehicle broker. He had sold a vehicle to PW5 bearing NO.KL-11 A 9967 on 22/2/1999. He stated that the RC ownership was not changed in his name.

39. PW27 is another broker. He had purchased the vehicle KL- 11A/9967 in January, 1999. He had sold the vehicle to PW26.

40. PW28 is the person who deposed that PW24 had arranged purchase of a property for him. PW24 was a worker of SSF. He purchased 10 acres of land in Chuvannakunnu in the name of his wife. The property was sold to PW7.

41. PW29 is a person who is an employee of Markassul Sakkafathi Sunnia. The institution conducts Hajju Yatheem Khana Arts College, Engineering College, orphanage etc. He was cited for the purpose of identifying the accused and the circumstances under which Moulavi came to be missing. He was declared hostile.

42. PW30 is a Dental Surgeon. He was a follower of Moulavi and after hearing the speeches of Moulavi, he became a Mujahideen. He shifted his affiliation from Sunni to Mujahideen which according to him is a progressive approach to the religion. As per his ideology, instead of the prayer for five times a day, it is enough to conduct prayer three times a day. That alone has been mentioned in Koran. He narrates the ideology of Moulavi. He also narrates an incident where people reacted by throwing sticks and umbrella on Moulavi while he was rendering a speech at Kozhikode town. He also knew about the incident of missing of Moulavi after having proceeded to Kozhikode with a few persons. He has not stated anything about the involvement of the accused.

43. PW31 had deposed that he knew the 4th accused. He was asked whether he had travelled with the 4th accused to Aroor which he denied. He was declared hostile.

44. PW32 is an Engineer by profession. He deposed that he knew PW24 and he was a member of SSF. He was asked whether he knew anything about the murder of Moulavi, which he denied. He was declared hostile.

45. PW33 deposed that he had studied in the organization known as Markas. He deposed that he does not know whether A9 was employed in Markaz. He heard about the murder of Chekannoor Moulavi but he does not know how he died. He was asked whether A9 had informed him about the death of Moulavi, which he denied. He was also declared hostile.

46. PW34 did not identify any of the accused. He was declared hostile.

47. PW35 was the Magistrate who had conducted TIP. In his evidence, it is stated that witness No.1 in the TIP, Hawwa Umma had identified accused Nos.1 and 2. Witness No.2 Jabbar identified the first accused. Hawwa Umma is PW3 and Jabbar is PW21. He had also narrated the manner in which TIP was conducted and even though the suspects and non-suspects were shifted, the witnesses have identified them. During cross examination, the main thrust was that the accused had informed the Magistrate that while they were in police custody, they were shown to the witnesses at the Thrissur Guest House. Yet another factor which was highlighted was that the first accused had a fracture on his hand and he was wearing a bandage. The question and answer were like this: 

“Hamsa the suspect had a fracture at this hand and a bandage (Q) May be there, I did not remember (A)”

48. PW36 was the Additional S.P. CBI. During cross examination, he stated that PW21 has mentioned in Ext.D11 that he had not told that he had seen anybody in the light of the house from where the jeep was stationed. He further deposed that he questioned Jabbar at the Camp Office and not at Thrissur. But in the statement filed in Court, he had not mentioned the date of questioning Jabbar. During cross examination, the following omissions had been brought out. “While questioning Jabbar he did not tell “[Omitted]”

49. PW37 is an Inspector of CBI, SPE in Chennai. He had conducted investigation from 29/7/1999 to 4/3/2002. He is a person who requested for conducting TIP. He deposed that during questioning, he asked first accused where the body was disposed. A1 told him that he can lead him to the place where dead body was disposed. He also stated that on 24/1/2001, 25/1/2001, 27/1/2001, 29/11/2000, 30/11/2000, 3/12/2000 and 4/12/2000, they had gone to the place where the dead body was allegedly disposed of. They have conducted search by using JCB and other equipments. But they could not find out any trace of the dead body. The defence have a case that A1 was arrested at Lakshadweep. But when cross examined, PW37 stated that he was not arrested at Lakshadweep. When he enquired at Lakshadweep, he understood that he had gone to the mainland and he came back. When he was asked whether Gopakumar and two other officers along with A1 had travelled in the ship on 23/11/2000 night, his answer was that they would have travelled on the same day. They did not arrest him and he was given notice on 24/11/2002 directing him to come to the guest house on 25th. They had suspicion about him for about two months. He came on 26th and he was sent away. He again came on 27th. He denied having taken the accused to Thrissur Guest house on 27th. A2 was also directed to come on 25th. A2 had come on 25, 26 and 27th. A1 and A2 were arrested on 27th and were produced before the Magistrate. Questions were put stating that on several occasions, photographs of the accused appeared in the newspapers and the answer was that it was covering their face and body that publications have been made. When they were again questioned as to whether the photographs were taken on the date of arrest, his answer was that no such photographs were taken. Suggestion was that A1 was taken into custody on 22/11/2000 at Lakshadweep and A2 on 23/11/2000 and after taking them in custody, the arrest was recorded only on 27/11/2000. He further deposed that he had not recorded the statement of PW3 or PW21. But he had seen them and questioned. When he was asked whether he had seen the particulars mentioned by PW3 regarding the identity of the person she had seen, which was mentioned in the statement, his answer was that he can tell that only after seeing the statement. Cross examination also proceeded on the basis that accused were shown to PW3 and PW21 even before TIP.

50. PW38 was the Superintendent, CBI-SCB, Chennai during 2001. He only deposed that he had examined PW31 and PW11 and had given the statements which were marked in the case.

51. PW39 was working as the Inspector of CBI, Chennai during 1996-97. He had registered Ext.P37 FIR which was originally registered as Crime No.129/93 of Ponnani Police Station. He investigated the case from 2/8/1996 to 26/8/1997. He recorded the statement of 88 witnesses and questioned 22 persons. During cross examination he deposed that he did not record any statement of PW21 because PW21 told him that he had nothing else to state other than what he had stated to the Crime Branch officials. He was also questioned on the contradictions and omission marked while PW3 was examined. A specific question was asked regarding the complexion of the person she had seen which is recorded as under:-

“Except about a fair complexioned man, she has not told about the presence of any other person in the office room or seeing any other persons coming to the office room or to the house or stepping out from the office room or the house (Q) She has not told (A) She has also told you about any reason for her to notice the features of the person or persons who come during that night to invite Moulavi (Q)She did not tell me (A) She did not tell you that a black complexioned man was seen by her in that night (Q) She did not tell me (A).”

52. PW40 took over investigation on 4/3/2002. He also tried to locate the dead body with the help of bomb disposal squad, mine sweepers, metal detection etc. He stated that the accused person during investigation confessed that the place of the dead body was on Chuvannakunnu.

53. DW1 was the Manager of PWD Rest House. He had produced the register from 1st November, 2000 to 31/12/2000. Photocopies were also produced duly attested by the Assistant Engineer, PWD Rest House. It is marked as Ext.D17. As per Sl.No.3813, K.Pradeep Kumar, Inspector of Police, CBI, SCB, Chennai was the occupant on 22/11/2000. C.K.Subash was the occupant on 23/11/2000 till 27/11/2000. The said portions were marked as Exts.D17(a), D17(a)(i) , D17(a)(ii), D17(a)(iii) to prove that the 4 rooms were occupied by CBI officers till 24/11/2000. Ext.D17 (b)(i) is also one of the entries.

54. DW2 was the Chief Reporter of Malayala Manorama Daily. He produced the newspaper dated 5/6/2003. In page 11, it is written that two persons who were involved in Moulavi case have surrendered. A copy of said page 11 is marked as Ext.D18 and the news item with photograph as Ext.D18(a). the photograph was that of accused Nos.4 and 6.

55. DW3 was a police constable from 15/3/1993 to 10/6/2002. He deposed that there was a Detective Inspector by name Basheer who was in charge of the case investigation. He does not know the whereabouts of Basheer. He was associated with Basheer for the purpose of investigation and he can identify the signature of Basheer. He states that the statement of PW3 was taken on 26/8/1993 and 27/8/1993. It has initials of Basheer. He also stated that PW3 had given Exts.D4 and D4(a) to D4(f) statements. The omissions were also put to him. He stated that “കറച കറത ക,_ ത_ട_യള _ല_യ ഉയരമ_ല_ത ഒര_ൾ ഉണ_യ_രന എന PW3 പറഞ_ട_ല.”. Ext.D6 was also proved. He also deposed that PW3 had given Ext.D6 statement on 30/11/1993 to Mr.Basheer. He was also questioned on the other particulars relating to the deposition of PW21.

56. DW4 was the Circle Inspector of Police during 1992-93. He deposed that he had conducted investigation into the case. As per Government order, the investigation was entrusted to CBCID. He had recorded the statement of PW3 and she had given statements marked as Exts.D5 and D5(a). He also deposed that other than mentioning about a person having fair complexion, she did not give the description of any other person. She also stated that her husband had informed her that two persons had come. In respect of persons whom the witnesses do not know, it is normal to ask the details of their description. He also deposed that he had taken the deposition of PW21. He further stated that at the time of taking statement, PW21 did not say that he had talked to any person who had come in the jeep and he did not give any statement that they had mentioned their names to him. PW21 also had not given any statement that he had seen their faces from the light of the vehicles coming from the opposite direction. He also proved Ext.D3, the statement given by Salim Haji.

57. The learned standing counsel appearing for CBI contended that there is clear evidence against accused 1 and 4. It is submitted that the oral testimony of the witnesses have to be considered in the light of the identification of the accused. It is pointed out that the alleged contradictions or omissions are not fatal to the prosecution. The identification of an accused before Court is corroborated by the TIP conducted by the investigating officer. From the evidence of PW21, it is proved that he had occasion to travel with A1 and A4. Further, evidence of PW22 clearly indicates that A4 had threatened PW22 referring to the murder of Moulavi. PW21 was a natural witness and his evidence is further corroborated by the evidence of PW3 and other evidence that had been forthcoming in the matter. It is rather clear from the evidence that the Sunni faction of Muslim community did not like the ideology preached by Moulavi and Moulavi was even attacked during a public meeting. The TIP was conducted in accordance with the procedure prescribed and the contentions urged by the learned counsel for the appellant that the accused was shown to the witnesses in Thrissur Guest House was absolutely incorrect. It is also contended that if the accused was bearing a bandage at the time of TIP, the Magistrate who had conducted the TIP would have noticed the same and it would have been mentioned in the report as well. It is therefore submitted that on a re-appreciation of the entire evidence, it could be seen that accused 1 and 4 were responsible for the crime and 4th accused should also be convicted and appropriate sentence should be imposed on him.

58. Learned senior counsel appearing for the accused submitted that there is absolutely no evidence against any of the accused. None of the witnesses have spoken about any conspiracy to commit the murder of Moulavi. There is no proof to show that Moulavi has actually died or he was murdered. Though attempts were made by the investigating agency to trace out the dead body or any materials belonging to Moulavi and the entire Chuvannakunnu was ploughed and dug to find out any of the remains of Moulavi, no materials were found. Several witnesses were examined to prove the alleged conspiracy. But there is absolutely no evidence against any of the accused either to prove conspiracy or to prove the manner in which the offence had been committed.

59. The only evidence that had been relied upon by the Court below to convict the first accused is the oral testimony of PW3 and PW21. PW3 and PW21 have identified the first accused as one among the persons who have come to their residence on 29/7/1993. But even the said evidence lacks merit as the description of the person who had come on the said date as stated by PW3 during her initial version before the police was that he was a person having fair complexion. The first accused is not such a person. He is of dark complexion. As far as PW21 is concerned, he is alleged to have seen the accused while coming back from the press in the jeep along with Moulavi. His evidence is full of omissions and contradictions. Trial Court convicted A1 only on the basis of last seen theory and it is settled law that last seen theory by itself cannot form the basis for holding the accused guilty of the offence.

60. Learned Senior counsel placed reliance on the judgments of the Apex Court in Anjan Kumar Sarma v. State of Assam (AIR 2017 SC 2617), Ganpat Singh v. State of Madhya Pradesh (AIR 2017 SC 4839), Ravi v. State of Karnataka (AIR 2018 SC 2744), State of Karnataka v. Chand Basha [(2016) 1 SCC 501], Rishi Pal v. State of Uttarakhand (AIR 2013 SC 3641) and Rambraksh v. State of Chhattisgarh (AIR 2016 SC 2381). There cannot be any quarrel on the propositions laid down in the aforesaid judgments. However, to emphasise the point, it will be useful to refer to the judgment in Rishi Pal (supra). That was a case in which the dead body was not located. There was no evidence to show where and when the same was disposed of by the accused, even assuming that he had committed the crime. After referring to the decisions in Rama Nand and others v. State of Himachal Pradesh [(1981) 1 SCC 511] and other judgments, the Apex Court held at paragraphs 13 to 18 as under:-

“13. In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. Failure of the prosecution to assemble such evidence will, however, result in failure of the most essential requirement in a case involving a charge of murder. That is precisely the position in the case at hand. There is no evidence either direct or circumstantial about Abdul Mabood having met a homicidal death. The charge of murder levelled against the appellant, therefore, rests on a rather tenuous ground of the two having been last seen together to which aspect we shall presently advert when we examine whether the two being last seen together is proved as a circumstance and can support a charge of murder.

14. The second aspect to which we must straightway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs.15,000/-. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of Maharashtra (2007) 7 SCC 502 : (AIR 2007 SC 3050 : 2007 AIR SCW 5520), Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670 : (AIR 2013 SC (Cri) 193 : 2012 AIR SCW 5180), Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152 : (AIR 2010 SC 85 : 2009 AIR SCW 5608)]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.

15. Coming then to the circumstances which according to the prosecution prove the charge of murder against the appellant, all that we have is that the appellant and Abdul Mabood, the deceased, had left in a car bearing registration No.URM 2348 from No.1, Circular Road, Police Station Dalanwala, Dehradun and that on 2nd July, 1986 the appellant had gone to the house of one Akash Garg P.W.7 accompanied by a boy whom the witness identified as the deceased- Abdul Mabood. The deposition of PW8 Badlu Ram, posted as a Peon at Naval Cinema, Panipat, is also to the same effect. According to the said witness the appellant had gone to the cinema accompanied by a boy between 20-22 years of age whom he recognised as the alleged deceased-Abdul Mabood on the basis of a photograph shown to him at the trial. The only other evidence which has any relevance to the circumstances that led to the disappearance of Abdul Mabood is the deposition of Tejveer Singh P.W.11, resident of Budha Kheri, Panipat, a businessman by occupation, who claims to have seen the appellant with Abdul Mabood when the two visited his farm. The boy was identified by the witness by reference to a photograph shown to him as the alleged deceased-Abdul Mabood. According to the witness the appellant had gone away with his companion boy and when he returned at night he was all alone. He also appeared troubled and his clothes were stained with dust and sand. The appellant asked for a towel to take a bath and explained that his car had broken down and while trying to put it in order his clothes got soiled. When the witness asked him about the boy accompanying the appellant the latter is alleged to have explained that he had stayed back with his friend. The deposition of PW10 Ajit Chopra who is also a resident of Panipat proved that the appellant had visited his residence in the first week of July, 1987 and had left his car at Naval Talkies which was then brought to his factory by their driver Jai Bhagwan examined as PW9. The trial Court on the basis of the above evidence held that the deceased-Abdul Mabood had been taken by the appellant to Panipat and disposed of by him on the basis that the two were last seen together. The trial Court had, however, found no motive or evidence for the alleged murder of the deceased-Abdul Mabood. The High Court took a contrary view and found that the charge of murder could not be held to be proved on the basis of the evidence on record. The High Court was, in our opinion, correct in arriving at that conclusion. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court overlooked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered.

16. In Mohibur Rahman and Anr. v. State of Assam (2002) 6 SCC 715 : (AIR 2002 SC 3064 : 2002 AIR SCW 3523), this Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. Similarly in Arjun Marik and Ors. v. State of Bihar, 1994 Supp (2) SCC 372, this Court reiterated that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded. So also in Godabarish Mishra v. Kuntala Mishra and another (1996) 11 SCC 264 : (AIR 1997 SC 286 : 1997 AIR SCW 33), this Court declared that the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances. In Bharat v. State of M.P (2003) 3 SCC 106 : (AIR 2003 SC 1433 : 2003 AIR SCW 770); two circumstances on the basis whereof the appellant had been convicted were (i) the appellant having been last seen with the deceased and (ii) recovery of ornaments made at his instance. This Court held : 

"........Mere non-explanation cannot lead to the proof of guilt against the appellant. The prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant....."

17. We may also refer to State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755 : (AIR 2007 SC (Supp) 61 : 2007 AIR SCW 2226) where this Court held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances it is not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together. Reference may also be made to Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir (2002) 8 SCC 45 : (AIR 2002 SC 3164 : 2002 AIR SCW 3655) where this Court held : "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases...."

18. Finally in Jaswant Gir v. State of Punjab (2005) 12 SCC 438, this Court held that it is not possible to convict appellant solely on basis of 'last seen' evidence in the absence of any other links in the chain of circumstantial evidence, the Court gave benefit of doubt to accused persons.”

61. The above judgment has relevance to the facts of the present case as well. The very same principle had been reiterated in the other judgments.

62. In this case, though the prosecution alleges that Moulavi has been murdered, there is absolutely no evidence to prove the said fact. What we could deduce from the circumstance and the evidence available in the case is that Moulavi was missing since 29/7/1993. Even in instances where corpus is not recovered, the Court can arrive at a conclusion that the missing person had been murdered. The Apex Court in Rama Nand (supra) had observed that discovery of the dead body of the victim which proves physical evidence of violence is not the only mode of proving the corpus delicti in murder. In cases where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. It is held that such proof may be by direct ocular account of an eyewitness or by circumstantial evidence or by both. It is further held by the Apex Court in Rama Nand (supra) that, where the fact of corpus delicti, i.e., homicidal death, is sought to be established by circumstantial evidence, the circumstances must be of clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. However Apex Court cautioned that the said principle cannot be pushed too far as requiring absolute proof. Therefore, the Court while considering the matter, as a prudent man, ought under the circumstances of the particular case, act upon the supposition, that it exists. It is therefore held that the corpus delicti or the fact of homicidal death can be proved by telling the inculpating circumstances which lead to the conclusion that within all human probability, the victim has been murdered by the accused.

63. Court below proceeded on the basis that as far as A1 is concerned, he has been identified by PW3 and PW21 and he was one among the persons who had taken Moulavi in the jeep. Since he is not a follower of Moulavi and majority of the Muslims in the State are Sunnis, the first accused being a Sunni has the motive to commit murder. The Court below had relied upon circumstances which were not proved before Court. The main reason for conviction was the last seen theory. Each case has to be considered on its own facts. Reference is made by the Court below that when a person is abducted and was later found to be murdered, it is within the powers of the Court to draw a presumption that all the abductors are responsible for the murder. Further, it was based on the judgment in State of Rajasthan v. Kashi Ram (2007 (1) KLT S.N. 6 (C.No.10) wherein it was held that if a person is last seen with the deceased, he must offer an explanation which appears to the Court to be probable and satisfactory.

64. In the present case, the only evidence that could link the accused to the murder is the last seen theory. As held in the judgments cited above, last seen theory though is a strong piece of circumstantial evidence against an accused, it would be safer for the Court to look for corroboration especially in instances where the time lag between the occurrence of death and when the accused was last seen in the company of the deceased, cannot be proved by the prosecution. This is an instance where there is no proof that Moulavi had died. His death is assumed since he had not come back after going to Kozhikode on 29/7/1993.

65. What remains as evidence in the case is only the last seen theory and that too the first accused alone has been identified by the witnesses while being examined before Court. No other circumstance had been brought out or proved by the prosecution to infer that any of the other accused was involved in the crime. In a recent judgment in Satpal v. State of Haryana [(2018) 6 SCC 610], the Apex Court had reiterated the principle relating to last seen theory which reads as under:- 

"There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine".

66. Even regarding identification of A1, there is material contradiction in the evidence of PW3 and PW21. In the earlier statements given by PW3, she referred to have seen only one person. According to her, it was a fat person having fair complexion, whereas first accused whom she had identified before Court is a dark complexioned and lean person. It is relevant to note that when the man missing case was filed before the Ponnani police station on 31/7/1993 by PW1, PW3 and PW21 were present. They did not give any description regarding the accused to the police in order to identify them. PW21 though have identified A1 in the box as well as during TIP had not mentioned about having any discussion with them during their travel from the press to Moulavi's house on 29/7/1993. Even the identification of A1 by PW3 and PW21 before Court and during TIP according to the defence had been manipulated. The defence has a contention that CBI had taken the first accused to custody even at Lakshadweep on 22/11/2000 and he was brought to the mainland of Kochin. PW37 during evidence denied that CBI had taken Guest House at Thrissur. But evidence had been adduced by the defence through DW1 to prove Ext.D17 and the entries thereon which clearly indicates that the CBI officers had taken about four rooms from 23/11/2000 to 27/11/2000. During that time, PW37 was the investigating officer. In the absence of any explanation from the CBI for what purpose they had taken the said rooms at Trichur Guest House, a doubt had been cast upon. The TIP was conducted after several days from the alleged date of arrest. Even assuming that the defence version has to be disbelieved, A1 is being identified by PW3 and PW21 after about 7 years. When PW3 had given a description of the person she had seen at the earliest point of time as having fair complexion and she had not mentioned about any other person in her earlier statement to the police, the identification itself during TIP is doubtful. The same is the situation as far as PW21 is concerned. He had not given the description of any of the persons whom he had seen during the relevant time to the police. The defence has a case that he was a planted witness and that he was also shown the accused in Trichur Guest House.Several omissions had been brought forth in the previous statement given to the police officers which had been proved in the case. Since the omissions relate to identity of the accused, those are material omissions and will amount to contradictions. The Court below was therefore not justified in arriving at a conclusion that first accused was properly identified by PW3 and PW21.

67. Even assuming that the contradictions brought out by the defence with reference to the evidence of PW3 and PW21 are to be ignored, still the only evidence to implicate A1 is that he had been to Moulavi's house on 29/7/1993, and they were last seen together. It is not for the defence to give any explanation as to what happened to Moulavi after being taken from his house. If there was evidence to prove Moulavi's death immediately after him being taken in the jeep, an explanation from the accused would have been necessary. But there is no such evidence. It is for the prosecution to prove with either ocular or circumstantial evidence that Moulavi had died and there are circumstances to implicate the accused to the crime. Unfortunately no such material is forthcoming in the case.

68. The prosecution has a case that the evidence of PW22 supports the prosecution version. A4 appears to have mentioned to PW22 that he was involved in the murder of Moulavi. But during cross examination, the defence was able to bring forth the actual statement made by A4 to PW22. Even assuming that his version can be believed, it was only a threat made to PW22 stating that if Moulavi can be murdered, why not him. We do not think that PW22's evidence will render any support to the prosecution case.

69. Much evidence had been adduced by the prosecution to prove the ownership of the jeep in which Moulavi was allegedly taken by the accused 1 and 4. There is nothing to indicate that the ownership of the jeep vested with any of the accused and they were using the jeep during the relevant time. At any rate, there is nothing to indicate that A4 was having any connection whatsoever with the jeep. A4 is the person who was allegedly driving the jeep at the relevant time.

70. In this case, to arrive at a conclusion that the accused was involved in a conspiracy to abduct and commit murder of Moulavi and thereafter destroy the evidence, there ought to be sufficient circumstances which are proved beyond reasonable doubt to arrive at such a conclusion. Though an attempt had been made to prove motive against the accused, prosecution had miserably failed to prove the same. That Moulavi had an ideological difference with a major group of Muslim community by itself cannot be a reason to arrive at a conclusion that the accused had an intention to commit murder and he had conspired with others. There is no evidence that any of the accused was involved in any such conspiracy.

71. The case of the prosecution is that A1 and A4 had together gone to Moulavi's house in a jeep. The charge is that he was strangulated to death on 29th July 1993 at about 9.30 p.m by A3, A5, A6 and A7. None of the witnesses have spoken in that fashion and there is no circumstance to point out that any of those accused had strangulated Moulavi. It was only an inference drawn without any material on record. Court below had presumed that Moulavi was murdered since he was not seen after 29/7/1993. It was observed that, had he not been murdered, he would have come to Kalikavu at the appointed time. May be he is murdered, but what is the material adduced by the prosecution to prove the said fact is the question.

72. Having given our anxious consideration to the arguments put forward on either side, we are of the view that even the identification of accused No.1 cannot be proved beyond reasonable doubt. There is substantial contradictions in the version of PW3 and PW21 which by itself cannot be the basis for arriving at a conclusion that A1 was one among the person who had gone to Moulavi's house on 29/7/1993. As far as A4 is concerned, even the Court below observes that he was not even identified by any of the witnesses. Only statement against him is that of PW22, which we have already considered. There is no evidence of conspiracy, of abduction or commission of murder.

73. In the above circumstances, we are of the view that the appeal filed by the first accused is to be allowed. The appeal filed by the State and Crl.Revision Petition filed by the defacto complainant are to be dismissed.

Accordingly, Crl.Appeal No.2015/10 is allowed. We set aside the conviction and sentence of the first accused/appellant. He shall be released from the prison forthwith, if his presence is not required in any other case. Crl.Appeal No.462/11 and Crl.Revision Petition No.330/11 are dismissed.