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Monday, February 4, 2013

Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence. ; “The DNA analysis made it clear that the blood samples of the parents of Praveen matched with the DNA of Praveen, deceased and the same proved and established the identity of the dead body as the DNA had also been extracted from the portion of the limbs recovered from the lake and compared with that of DNA of parents.” ; to appreciate his evidence under Section 3 of the Evidence Act. The Judge must consider whether a prudent man would appreciate such evidence, and not appreciate the same in accordance with his own perception. The basis for appreciating evidence in a civil or criminal case remains the same. However, in view of the fact that in a criminal case, the life and liberty of a person is involved, by way of judicial interpretation, courts have created the requirement of a high degree of proof. 37. In view of the above, we do not find any merit in the appeal and the same is dismissed accordingly. However, before parting with the case, we would like to mention that the courts below have appreciated the entire evidence meticulously, but it would have been desirable if all the circumstances which completed the chain, rendering the accused liable for punishment could have been put together, to facilitate better understanding of the judgment.


                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1774  of 2010




      R. Shaji
         …Appellant


                                   Versus


      State of Kerala                                      …Respondent






                               J U D G M E N T




      Dr. B.S. CHAUHAN, J.

      1.    This appeal has been preferred against the  judgment  and  order
      dated 10.12.2009 delivered by the Kerala High Court  at  Ernakulam  in
      Criminal Appeal No. 86 of 2006, by way of which it  has  affirmed  the
      judgment and order of the Sessions  Court,  Kottayam  dated  3.1.2006,
      passed in Sessions Case No. 145 of 2005.


      2.    Facts and circumstances giving rise to this appeal are:
      A.    As per the  case  of  the  prosecution,
the  appellant  at  the
      relevant time had been working as the Deputy Superintendent of  Police
      at Malappuram, and his wife was living at Palluruthy, and was using  a
      vehicle which was driven by Praveen (deceased). 
He was also related to
      the appellant. Praveen developed  an  illicit  relationship  with  the
      appellant’s wife, and the appellant was informed of  this  development
      by his Manager,  Aji.
The  appellant  reached  Palluruthy,  and  made
      enquiries about  the  situation  from  Praveen  and  others,  and  his
      relatives tried to resolve the aforesaid matter.  In the  presence  of
      other  relatives,  the  matter  was  then  amicably  settled. 
 Praveen
      (deceased), was asked not to come to appellant’s house thereafter, and
      thus Praveen left and began working in a  shop  at  Ettumanoor,  as  a
      driver.
      B.    During this period, on  25/26.11.2004,  Vijayamma,  relative  of
      Praveen  (deceased),  and  N.  Sahadevan  PW.2’s  father,     informed
      Pavithran (PW.1), father of Praveen, that Praveen  was  in  danger  as
      Vijayamma had found out about the illicit  relationship  that  Praveen
      had developed with the appellant’s wife.
      C.    N. Sahadevan, PW.2’s father informed Pavithran (PW.1), Praveen’s
      father who resided at Trivendrum, via the telephone of this danger  to
      Praveen’s life.  Pavithran (PW.1) immediately informed his brother and
      requested him to help  Praveen,  as  he  may  not  be  spared  by  the
      appellant. N. Sahadevan, PW.2’s father, went and  brought  Praveen  to
      his own  house,  whilst  informing  everybody,  that  his  mother  was
      seriously ill. The appellant asked N.  Sahadevan,  PW.2’s  father,  in
      conversation over the telephone about Praveen,  and  directed  him  to
      bring Praveen back. PW.2’s father then took  Praveen  back.  When  the
      meeting took place in the presence of various relatives, the appellant
      (A-1), attempted to assault Praveen, but they were separated by  other
      persons. Praveen pleaded his innocence, and told  the  appellant  that
      Aji had played this dirty game for some personal gain.  However,  when
      Aji was called to participate in the said meeting,  he  stood  by  his
      version of events  and  stated  that  he  had  seen  Praveen  and  the
      appellant’s wife in  a  compromising  position.   The  appellant  told
      Praveen to leave the said place and to not enter the city.
      D.    Praveen  was  brought  by  Jilesh  M.S.  (PW.2),  and  taken  to
      Trivendrum for treatment. Praveen told his father after  a  period  of
      2/3 days that it was not safe for him  to  stay  in  hospital  as  2/3
      gundas had been roaming around in the hospital. Thus, he went back  to
      the city and sought employment.
      E.    On 15.2.2005, Divakaran (PW.7), neighbour of Vinu  (A-2),  while
      coming out of a bus stop, saw Vinu (A-2) coming on a motor bike  while
      Praveen was standing in the market.  Vinu (A-2), stopped the bike  and
      took Praveen towards Kottayam. They then went to a bar, had drinks  as
      were served to them by Saiju (PW.9), and came out of the bar  at  8.30
      p.m.,  after which they ate at a ‘thattukada’ (a  small  petty  shop),
      where  they  were  served  by   Jose  (PW.8),  an  employee  of    the
      ‘thattukada’. Mohammed Sherif @ Monai (PW.13), who was  the  owner  of
      the ‘thattukada’, saw the appellant (A-1), coming in a Maruti car.  In
      the said car, there were also some other persons. They had coffee,  as
      was served to them by Jose (PW.8), and seen by Mohammed Sherif @ Monai
      (PW.13).  The appellant  (A-1)  went  back  to  the  car  and  started
      driving. Other persons also joined him, and  Vinu  (A-2),  along  with
      Praveen, left on a Motor  Cycle.  Vinu  (A-2)   lifted  his  hand  and
      proceeded further.  The Maruti Van followed them. They  all  left  the
      city at about midnight, and drove into the jungle.
      F.    Shanavas (PW.12), an auto-rickshaw driver carrying  patients  to
      the Medical College, Kottayam found one motor cycle parked on the side
      of the road. As he had slowed down seeing the vehicles on the road, he
      also saw two persons coming out of the van. The pillion rider  of  the
      motor cycle sat in the van and after he got into the van, the van left
      immediately. The motor bike also started. He  noted  the  registration
      number of the van, and also that of  the motor bike.
      G.    Mohanan (PW.10), another auto rickshaw driver saw the Maruti Van
      parked on the road and a person standing  near  it.  Mohanan  (PW.10),
      stopped his auto and asked him what  had  happened,  however  he  only
      replied that a person had gone nearby. Thus, Mohanan (PW.10) left  the
      place.
      H.    On 16.2.2005, a pair of human legs was  found  floating  in  the
      backwaters of the  Vembanad  lake  (hereinafter  referred  to  as  the
      ‘lake’) at Kottayam, by a person who thereafter lodged a complaint  to
      Subhah K. (PW.68), Sub-Inspector of the Kottayam West Police,  on  the
      basis of which, an FIR was registered.
      I.    On 18.2.2005, Pavithran (PW.1)  lodged  an  FIR  in  the  Police
      Station alleging that his son Praveen had gone missing, and that after
      he became aware of the same, he had spent the last 3/4 days  searching
      for him, but had been still unable to trace him.
      J.    On 19.2.2005, a torso in a plastic bag, was seen floating on the
      eastern side of the lake. Upon obtaining requisite  information,  K.M.
      Antony (PW.17), Circle Inspector of  Vaikom,  reached  the  scene  and
      Pavithran (PW.1) also identified the torso, to be  that  of  his  son.
      While the inquest of the torso was being conducted, a  pair  of  hands
      was seen floating in the lake. K.M. Antony (PW.17) recovered the  same
      and conducted inquest. Pavithran (PW.1) identified  the  hands  to  be
      those of Praveen as well.
      K.    After the completion of the preliminary enquiry,  the  appellant
      and Vinu  (A-2),  were  arrested  on  24.2.2005.  The  house  of   the
      appellant (A-1) was searched by K.M. Anto (PW.74), Circle Inspector of
      Police, Kottayam West  and there was recovery of M.Os. 13 to 18, under
      Exts. P.17 and 18 Mahazars.  B. Muralidharan  Nair  (PW.77),  Dy.S.P.,
      Kottayam,  received information that a human head in a plastic  cover,
      had been spotted on the shores of the back waters  of  the  lake.  The
      head was then recovered and inquest prepared.   B.  Muralidharan  Nair
      (PW.77) obtained custody  of  the  accused  from  court.  The  chopper
      (M.O.4), alleged to have been used in the said crime was recovered  at
      the instance  of  the  appellant.   A  Maruti  Van  (M.O.5)  was  also
      recovered after information was furnished by the appellant  (A-1),  to
      the effect that the said Maruti Van had also been used.
      L.    After having completed the investigation,  a  charge  sheet  was
      filed  against  five  persons,  including  the  appellant.  The  trial
      however, could  be  conducted  only  against  two  persons,  i.e.  the
      appellant (A-1) and Vinu (A-2), as all  the  others  were  absconding.
      Subsequent  to  the  trial  of  this  case,  A-3  and  A-4  were  also
      apprehended, put to trial separately, and convicted under Section  302
      of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’).
       A-5 is still absconding.
      M.    So far as the present case is concerned,
 the  appellant  (A-1)
      was convicted under Section 302 read with Section 120-B  of  the  IPC,
      and was awarded a sentence of life imprisonment and a fine of Rs.  one
      lakh, in default of which, he would undergo SI for  a  period  of  one
      year.
Vinu (A-2) was sentenced to undergo imprisonment for life and to
      pay a fine of Rs.5,000/- only, in default of which, he  would  undergo
      SI for 3 months. Both the accused were also  convicted  under  Section
      201 read with Section 120-B IPC, and sentenced to imprisonment  for  a
      period of 3 years, and a fine of Rs.2,000/- each, in default of which,
      they would undergo SI for a  period  of   3  months  each.
They  were
      further convicted under Section 364 read with Section 120-B  IPC,  and
      sentenced to undergo RI for a period of 7 years each,  and  to  pay  a
      fine of Rs.5,000/- each, in default of which, they  would  undergo  SI
      for a period of one year. All  the  sentences  were  directed  to  run
      concurrently.
      N.    Aggrieved, both of them preferred  Criminal  Appeal  No.  86  of
      2006, which was dismissed by the High Court vide  judgment  and  order
      dated 10.12.2009.
            Hence, this appeal.


      3.    Shri S. Gopakumaran Nair, learned senior counsel  appearing  for
      the appellant,  has  submitted  that
there  was  no  motive  for  the
      appellant to cause death of Praveen.
 It is a  case  of  circumstantial
      evidence as there is no eye-witness to the actual incident of killing.
      The chain of circumstances is not complete. 
Haridas (PW.14), an  auto-
      rickshaw driver had seen the appellant and others only for a  fleeting
      moment.  
Though the appellant and Vinu (A-2) were  arrested,  no  Test
      Identification Parade was conducted. 
The statements of witnesses  were
      recorded under Section 164 of the Code  of  Criminal  Procedure,  1973
      (hereinafter referred to as the ‘Cr.P.C.’) by a Magistrate who did not
      even mention the date of recording such  statements,  such  statements
      were not exhibited before the court for the purpose  of  corroboration
      and confrontation. 
Jose (PW.8), Shanavas (PW.12), and Mohamamed Sherif
      @ Monai (PW.13), identified Praveen (deceased),  by  seeing  only  his
      passport sized photograph. 
This is not enough as Shanavas (PW.12), had
      seen the appellant and others including Praveen (deceased), only for a
      brief moment and thus, was unable to identify them in court after  the
      lapse of a period of several months, during the course of  the  trial.
      
Different parts of the body were found, and the identification of  the
      dead body, merely on the basis of  a mole  on  the  leg  of  the  body
      cannot be held to be proper identification by the father, as the  dead
      body was recovered after a lapse of 3/4 days. 
Different parts  of  the
      body were recovered on different dates and by such time the skin would
      have dis-integrated entirely.  
Neither  Vijayamma  nor  Radhamma  were
      examined.  
Aji,  who  had  disclosed  information  pertaining  to  the
      illicit relationship of Praveen with the appellant’s  wife,  was  also
      not examined.  
A DNA test was conducted on the dead body to  determine
      whether the  same  was  in  fact,  the  body  of  Praveen  (deceased).
      
However, the FSL report disclosed that in respect of the chopper  used
      for the purpose of dismembering the parts of the body, no blood  group
      could be detected.  
The whole case of the prosecution  hence,  becomes
      unbelievable, and the conviction of the appellant is liable, to be set
      aside.


      4.    Per contra, Mr. Basant R. learned senior counsel  appearing  for
      the  State  has  opposed  the  appeal,  contending  that  the  various
      circumstances that stood proved, pointed only towards the guilt of the
      appellant, and that in the light of the facts and circumstances of the
      case, no one apart from the appellant could have committed the  murder
      of Praveen (deceased). The DNA test  established  that  the  different
      parts of the body that were recovered from  the  lake  were  in  fact,
      those of Praveen.  There was no reason for the prosecution  witnesses,
      particularly, Jose  (PW.8),  Mohanan  (PW.10),  Shanavas  (PW.12)  and
      Mohamamed Sherif @ Monai (PW.13), to depose against the appellant  and
      both  the  courts  below  also  have  found  their  evidence   to   be
      trustworthy.  Jose (PW.8) and Mohamamed Sherif @  Monai  (PW.13)  knew
      the  appellant,  as  well  as  Vinu  (A-2)  and  Praveen   (deceased).
      Therefore, holding a TI Parade  would  have  been  a  mere  formality.
      Though, Mohanan  (PW.10)  and  Shanavas  (PW.12),  the  auto  rickshaw
      drivers, were chance witnesses, their presence cannot be doubted as it
      is an ordinary circumstance that patients are taken  to  the  hospital
      even in the late hours of night, and the said incident had occurred on
      the road that led to the hospital.  There was sufficient light on  the
      road, and the High  Court  recorded  a  finding  to  the  effect  that
      Shanavas (PW.12), an auto rickshaw driver, even if he had been  unable
      to see Praveen, was still able to identify the appellant and others.


      5.    We have considered the rival submissions made by learned counsel
      for the parties and perused the record.


      6.    The courts below have appreciated the entire evidence on record,
      including the evidence of the defence.  The  appellant  also  examined
      Ajeesh  M.  Muraleedharan  (DW.1),  who  was  a  Sub-Editor,  Malayala
      Manorama and thereafter, the High Court concurred with the findings of
      fact recorded by the Sessions Court on various  issues.  There  is  no
      dispute that Praveen (deceased), was a victim of  homicide,  and  that
      the dismembered parts of the body recovered from the lake  were  those
      of Praveen, as the same stood proved by the DNA report. The High Court
      concurring with the opinion of the Sessions Court, held as under:
               “The DNA analysis made it clear that the  blood  samples  of
               the parents of Praveen matched  with  the  DNA  of  Praveen,
               deceased and the same proved and established the identity of
               the dead body as the DNA had also been  extracted  from  the
               portion of the limbs recovered from the  lake  and  compared
               with that of DNA  of parents.”




      7.    The recovery of other articles also stood  proved  as  the  High
      Court yet again concurring with the finding recorded by  the  Sessions
      Court in this regard, held as under:
               “The recovery has been made by the Investigating  agency  on
               the statement voluntarily made by the appellant  in  respect
               of various materials and the High Court  took  note  of  the
               fact that the appellant was the seasoned police officer  and
               unless and until some  of  the  links  were  identified  and
               located, nobody could doubt his involvement.   The  recovery
               witnesses have proved the recoveries.  B. Muraleedharan Nair
               (PW.77), stated that the seizure was at the  behest  of  the
               appellant and the vehicle infact recovered belonged  to  the
               brother-in-law of  Babu (PW.6) and   as  the  owner  of  the
               vehicle did not have enough space to park the vehicle in his
               house, the van was being parked  in  the  compound  of  Babu
               (PW.6). The said PW.6 was familiar to the appellant who  has
               deposed that the appellant had come to him on 15.2.2005  and
               told the said  witness  that  the  appellant’s  vehicle  had
               developed some trouble and that is why he wanted to use  the
               vehicle parked in the house of the said witness. The van was
               taken by the appellant  as  allowed  by  Babu  (PW.6)  after
               taking the consent of the  owner  and  the  witness  further
               disclosed that the van was brought  back  by  the  appellant
               after few days.  B. Muraleedharan Nair  (PW.77)  has  stated
               that the vehicle was identified  by  the  appellant  himself
               telling that this was  the  van  which  had  been  used  for
               committing the crime.”




      8.    Undoubtedly, the van was returned on 16.2.2005 and was recovered
      on 24.2.2005, and hence, it  might  have  been  used  in  the  interim
      period, but this does not affect the evidence on record.  Some  police
      officers collected samples of blood stains from the floor of the  said
      vehicle and also some hair. The hair and blood stains recovered during
      the investigation, were  compared  with  the  hair  collected  by  the
      Scientific Officer from the deceased, which established that the  said
      hair did in fact, belong to Praveen (deceased), and thus, the  use  of
      the said vehicle in the crime stood proved. The recovery  of  the  van
      was in accordance with the provisions of  Section  27  of  the  Indian
      Evidence Act, 1872 (hereinafter referred to as  the  ‘Evidence  Act’),
      and as the same was done at the behest of the appellant,  his  conduct
      was relevant under Section 8 of the Evidence Act.


      9.    The recovery of the chopper (M.O.4) stood  proved  as  the  said
      chopper was crafted by Vijayakumar (PW.5), who deposed that  appellant
      was familiar with him and that the appellant  had  given  him  a  leaf
      plate for the purpose of making a chopper, as also, a  kitchen  knife.
      He prepared both,  the  chopper  and  the  knife  in  accordance  with
      instructions, and handed them over to the appellant in early  January,
      2005. Vijayakumar (PW.5) identified the chopper.


      10.   As per the deposition of  B.  Muraleedharan  Nair  (PW.77),  the
      appellant made a disclosure statement to  the  effect  that  Praveen’s
      body was mutilated using the chopper (M.O.4).  The  said  chopper  was
      recovered from the southern side of the lake  on  the  basis  of  such
      disclosure  statement  made  by  the  appellant.   The  appellant  had
      exclusive knowledge as regards  the  place  of  concealment,  and  the
      evidence on record makes it clear that when he was in fact,  taken  to
      such place, the appellant himself got into the water and retrieved the
      chopper from there.  No one else knew that the weapon  was  hidden  in
      such a place, and the location was not one that was frequented by  the
      public at large. Therefore, recovery of the said chopper at the behest
      of the appellant  cannot be doubted.


      11.   The chopper (M.O.4) was recovered by M.K. Ajithkumar, Scientific
      Assistant, who deposed that at the time of recovery, the  chopper  had
      blood stains and hair stuck on it. Dr. P.  Babu  (PW.71),  a  Forensic
      Surgeon deposed that the dismemberment of the  body  of  the  deceased
      could certainly have been possible with the said chopper.  So  far  as
      the recovery of the skull of Praveen (deceased) is concerned, the same
      was also made  on  the  basis  of  the  disclosure  statement  of  the
      appellant. The investigating team was taken to the relevant  place  by
      the appellant, and it was on the basis  of  his  disclosure  statement
      that the skull was found.  This happened after digging in a few places
      around the land of Ananda Kini. A glove and a plastic rope  were  also
      recovered  at  his  behest,  and  in  light  of   the   aforementioned
      circumstances, it cannot be doubted that the said recoveries  suffered
      from any illegality.
            Some minor issues with respect to the above, were raised  before
      the Sessions Court, as well as before the High  Court,  and  the  same
      have rightly been explained by the courts below.  Thus,  they  do  not
      require any further discussion.


      12.    Learned  senior  counsel  for  the  appellant  has  urged  that
      statements of  certain  witnesses  were  recorded  under  Section  164
      Cr.P.C. before Magistrates, namely,  Kalampasha (PW.61) and Dinesh  M.
      Pillai (PW.62).  The said statements were not put on record before the
      trial court, and the same were  not  marked.  Thus,  the  trial  stood
      vitiated as the accused has been denied an opportunity  to  contradict
      the aforementioned statements of the witnesses, which were made  under
      oath before the magistrates, which though are not  in  the  nature  of
      substantive  evidence,  could  well  be  used  for  the   purpose   of
      corroboration  and  contradiction.   Denial  of  such  opportunity  is
      against the requisites of a fair trial.


      13.   Clause (iv) of Section 207 Cr.P.C.  clearly  provides  that  any
      statement recorded under Section 164 Cr.P.C., shall be made  available
      to the accused alongwith all the other documents that have been  filed
      alongwith the charge sheet. The appellant herein,  has  neither  urged
      that the statements recorded under Section 164 Cr.P.C. were not a part
      of such documents, before the trial court, nor was any issue raised by
      him at the time of cross-examination of B. Muralidharan Nair  (PW.77),
      the investigating officer.  The same is a question of  fact.  However,
      it appears from the documents on record that such  documents,  if  the
      same were in fact, a  part  of  the  record,  were  not  marked.   The
      appellant raised this issue for the first time before the High  Court,
      and the High Court dealt with the same observing:
               “A reading of the judgment of the court below show that both
               sides referred to the same in detail and the court below has
               also referred to the  same  in  its  judgment.  It  is  well
               settled that the statement under Section 164 Cr.P.C. can  be
               used both for corroboration and contradiction of the  author
               of the statement and thus, did not find  this  ground  worth
               acceptance.  Even  otherwise,  it  appears  that   statement
               recorded under Section 164 Cr.P.C. by the Magistrate was not
               in detail. No question had been put to the  witnesses  whose
               statements had been recorded nor an attempt had been made to
               extract answers from them and the witnesses  were  asked  by
               the learned magistrates what they wanted to say and they had
               no clue as to what they had to speak. Therefore, they simply
               spoke what came to their mind at that point of time  whether
               it was relevant or irrelevant.  The witnesses could  not  be
               deemed to carry so much of wisdom to  enable  them  to  know
               what are the essential facts they need to state  before  the
               learned magistrate.  The  witnesses  whose  statements  were
               recorded before the magistrate were simply asked  “have  you
               finished, you can go”.




      14.   Evidence given in a court under oath has great  sanctity,  which
      is why the same  is  called  substantive  evidence.  Statements  under
      Section 161 Cr.P.C. can be used only for the purpose of  contradiction
      and statements  under  Section  164  Cr.P.C.  can  be  used  for  both
      corroboration and contradiction.  In a case where the  magistrate  has
      to perform the  duty  of  recording  a  statement  under  Section  164
      Cr.P.C., he is under an obligation to elicit all information which the
      witness wishes to disclose, as a witness who  may  be  an  illiterate,
      rustic villager may not be aware of the purpose for which he has  been
      brought, and what he must disclose in his statements under Section 164
      Cr.P.C.  Hence, the magistrate  should  ask  the  witness  explanatory
      questions and obtain all possible information in relation to the  said
      case.


      15.   So far as the statement of witnesses recorded under Section  164
      is concerned, the object is two fold; in the first place, to deter the
      witness from changing  his  stand  by  denying  the  contents  of  his
      previously recorded statement, and secondly,  to  tide  over  immunity
      from prosecution by the witness under Section 164.  A  proposition  to
      the effect that if a statement of a witness is recorded under  Section
      164, his evidence  in  Court  should  be  discarded,  is  not  at  all
      warranted. (Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR
      1999 SC 2565; and Assistant Collector of Central Excise, Rajamundry v.
      Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901).


      16.   Section 157 of the Evidence Act makes it clear that a  statement
      recorded under Section 164 Cr.P.C., can be relied upon for the purpose
      of corroborating statements made by witnesses in the  Committal  Court
      or even to contradict the same. As the defence had no  opportunity  to
      cross-examine  the  witnesses  whose  statements  are  recorded  under
      Section 164 Cr.P.C., such statements cannot be treated as  substantive
      evidence.
           During the investigation, the Police Officer may sometimes  feel
      that it is expedient to  record  the  statement  of  a  witness  under
      Section 164 Cr.P.C. This usually happens when the witnesses to a crime
      are clearly connected to the accused, or where  the  accused  is  very
      influential, owing to which the witnesses may be  influenced.   (Vide:
      Mamand v. Emperor, AIR 1946 PC 45; Bhuboni Sahu v. King, AIR  1949  PC
      257; Ram Charan & Ors. v. The State of U.P., AIR  1968  SC  1270;  and
      Dhanabal & Anr. v. State of Tamil Nadu, AIR 1980 SC 628).


      17.   It has been argued by the learned  counsel  for  the  appellant,
      that as the blood group of the blood stains found on the chopper could
      not be ascertained, the recovery of the said chopper cannot be  relied
      upon.
            A failure by the serologist to detect the origin  of  the  blood
      due to dis-integration of the serum, does  not  mean  that  the  blood
      stuck on the axe could not have been human blood at all. Sometimes  it
      is possible, either because the stain is insufficient  in  itself,  or
      due to  haematological  changes  and  plasmatic  coagulation,  that  a
      serologist may fail to detect the origin of  the  blood  in  question.
      However, in  such  a  case,  unless  the  doubt  is  of  a  reasonable
      dimension, which a judicially conscientious mind  may  entertain  with
      some objectivity, no benefit can be claimed by  the  accused  in  this
      regard.
           Once the recovery is made in pursuance of a disclosure statement
      made by the accused, the matching or non-matching of blood  group  (s)
      loses significance.  (Vide : Prabhu Babaji Navie v. State  of  Bombay,
      AIR 1956 SC 51; Raghav Prapanna Tripathi v. State of U.P., AIR 1963 SC
      74; State of Rajasthan v. Teja Ram, AIR 1999 SC 1776;  Gura  Singh  v.
      State  of  Rajasthan,  AIR  2001  SC  330;  John  Pandian  v.   State,
      represented by Inspector of Police, Tamil Nadu, (2010) 14 SCC 129; and
      Dr. Sunil Clifford Daniel v. State of Punjab, JT 2012 (8) SC 639).


      18.   In view of the above, the Court finds that it is not possible to
      accept the submission that in the absence of a  report  regarding  the
      origin of the blood, the accused cannot be convicted, for it  is  only
      because of the lapse of time, that the blood could not  be  classified
      successfully. Therefore,  no  advantage  can  be  conferred  upon  the
      accused to enable him to claim any benefit, and  the  report  of  dis-
      integration of blood etc. cannot be termed as a missing link,  on  the
      basis of which the chain  of  circumstances  may  be  presumed  to  be
      broken.
      19.   Motive  is  primarily  known  to  the  accused  himself  and  it
      therefore, it may not be possible for the prosecution to explain  what
      actually prompted or excited the accused to commit a particular crime.
      In a case of circumstantial evidence, motive may be  considered  as  a
      circumstance, which is a relevant factor for the purpose of  assessing
      evidence, in the event that there is no unambiguous evidence to  prove
      the guilt of the accused. Motive loses all its significance in a  case
      of direct evidence  provided  by  eye-witnesses,  where  the  same  is
      available, for the  reason  that  in  such  a  case,  the  absence  or
      inadequacy of motive, cannot stand in the way of conviction.  However,
      the absence of motive in a case depending entirely  on  circumstantial
      evidence, is a factor that weighs in  favour  of  the  accused  as  it
      “often forms the fulcrum of the prosecution story”.   (Vide:  Babu  v.
      State of Kerala, (2010) 9 SCC 189; Kulvinder Singh & Anr. v. State  of
      Haryana, AIR 2011 SC 1777; Dandu Jaggaraju v. State of A.P., AIR  2011
      SC 3387).


      20.   The evidence on record clearly established, that  the  appellant
      had adequate reason to harbour animosity towards Praveen,  as  he  may
      well have been unable to tolerate the intimacy that the  deceased  had
      developed with his wife. In light of the fact that the  appellant  had
      absolute faith and trust in the deceased, and had hence allowed him to
      have free access and absolute freedom in his house, the alleged act of
      betrayal of trust was committed by the deceased, which  the  appellant
      no doubt found gravely humiliating and agonizing.
            Jilesh M.S. (PW.2) deposed, that when the appellant became aware
      of the illicit relationship between Praveen and his wife, he had  said
      that in the event that he was able to lay his  hands  on  Praveen,  he
      would chop him up into pieces. The  said  threat  was  followed  by  a
      tirade of abuses. Jilesh M.S. (PW.2) consulted  Pavithran  (PW.1),  in
      this regard. Both of them have deposed as regards the manner in  which
      the situation was handled  by  the  relatives  of  the  appellant  and
      Praveen.
           We do  not  find  force  in  the  submission  made  by  Shri  S.
      Gopakumaran Nair, learned senior counsel appearing for  the  appellant
      that the appellant had absolutely no grievance against his  wife  Smt.
      Shadi, and  that  even  after  the  alleged  incident,  she  had  been
      accompanying her husband to all social events,  as  Ajith  (PW.3)  has
      deposed that the appellant had attended  the  engagement  ceremony  of
      Vinu (A-2) along with his wife and son, and  that  too,  only  3  days
      prior to the alleged murder,  thus, it would be most unnatural for him
      to annihilate Praveen (deceased).  It is further  urged  that  Praveen
      (deceased) had in fact, misbehaved with the appellant’s wife, and  the
      matter was settled upon the interference of several  relatives,  after
      which Praveen (deceased) was asked to quit his job and was  also  told
      not to enter in the city.  In the event that the  defence  version  is
      accepted, and it is believed that  Praveen  (deceased)  had  in  fact,
      misbehaved with the wife of the appellant,  the  same  could  actually
      lead to the inference that the appellant may have had an even stronger
      motive to eliminate Praveen (deceased).
           Further, there is no force in the submission advanced on  behalf
      of the appellant that Shirdhi (PW.4), the son of  the  appellant  from
      his first wife, did not support the  case  of  the  prosecution.   His
      statement is only to the effect that when the meeting  took  place  on
      26.11.2004 he did not attend the meeting and stayed  upstairs.   Thus,
      he has not  deposed that the said meeting was not held.  Additionally,
      his statement that Praveen (deceased) had tendered an apology and that
      upon the intervention of relatives  and  friends,  the  appellant  had
      actually pardoned him, cannot be believed, as the said witness was not
      present at the meeting owing to which he could not have been  an  eye-
      witness to the aforementioned part of the incident.
      21.   Undoubtedly, in this case Aji, the Manager of the appellant  who
      had revealed the existence of the alleged relationship between Praveen
      and the appellant’s wife, has not been examined, but  we  are  of  the
      considered opinion that non-examination of the said witness  will  not
      adversely affect the case of the prosecution. The same is the position
      so far as Radhamma, the appellant’s sister,  Bijulal,  nephew  of  the
      appellant and Vijayamma, aunt of Jilesh M.S. (PW.2) are concerned, who
      could also have unfolded the factum of the said meeting being held  in
      this respect.


      22.   In the matter of appreciation of evidence of  witnesses,  it  is
      not the number of witnesses, but the quality of their  evidence  which
      is important, as there is  no  requirement  in  the  law  of  evidence
      stating that a particular number of  witnesses  must  be  examined  in
      order to prove/disprove a fact. It is a time-honoured principle,  that
      evidence must be weighed and not counted.  The  test  is  whether  the
      evidence has a ring of truth, is cogent, credible and trustworthy,  or
      otherwise. The legal system has laid emphasis on the value provided by
      each  witness,  as  opposed  to  the  multiplicity  or  plurality   of
      witnesses. It is thus, the quality and not quantity, which  determines
      the adequacy of evidence, as has been provided by Section 134  of  the
      Evidence Act. Where the law requires the examination of at  least  one
      attesting witness, it has been  held  that  the  number  of  witnesses
      produced over and above this,  does  not  carry  any  weight.   (Vide:
      Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; Jagdish Prasad v.
      State of M.P. AIR 1994 SC 1251;  Sunil Kumar v. State Govt. of NCT  of
      Delhi AIR 2004 SC 552; Namdeo v. State  of  Maharashtra  AIR  2007  SC
      (Supp) 100; Kunju @ Balachandran v. State of Tamil Nadu, AIR  2008  SC
      1381; Bipin Kumar Mondal v. State of  West  Bengal  AIR201O  SC  3638;
      Mahesh & Anr. v. State of Madhya Pradesh  (2011)  9  SCC  626;  Kishan
      Chand v. State of Haryana JT 2013( 1) SC 222).


      23.   It is a settled legal  proposition  that  the  conviction  of  a
      person accused of committing an offence, is generally based solely  on
      evidence that is  either  oral  or  documentary,  but  in  exceptional
      circumstances,  such  conviction  may  also   be   based   solely   on
      circumstantial evidence. For this  to  happen,  the  prosecution  must
      establish its case beyond reasonable  doubt,  and  cannot  derive  any
      strength from the weaknesses in the defence put  up  by  the  accused.
      However, a false defence may  be  brought  to  notice,  only  to  lend
      assurance to the Court as regards the various links in  the  chain  of
      circumstantial  evidence,  which  are  in  themselves  complete.   The
      circumstances on the basis of which the conclusion of guilt is  to  be
      drawn, must be fully established. The same must  be  of  a  conclusive
      nature, and must exclude all possible hypothesis except the one to  be
      proved. Facts so established must be consistent with the hypothesis of
      the guilt of the accused, and the chain of evidence must be  complete,
      so as not to leave any reasonable ground for a  conclusion  consistent
      with the innocence of the accused, and must further show, that in  all
      probability the said offence must have been committed by the  accused.
      (Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR  1984  SC
      1622; and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC
      200).


      24.   Divakaran (PW.7), deposed that he knew  Praveen  (deceased)  and
      Vinu (A-2) from childhood, and that on the fateful day Vinu (A-2)  had
      taken Praveen on a motor cycle and had driven towards Kottayam.
           Jose (PW.8) was running a ‘thattukada’ (petty shop)  during  the
      night. He deposed that on 15.2.2005 at 8.30 p.m.,  Praveen  (deceased)
      came with Vinu (A-2) to his shop, and that the two, after their  meal,
      left for the theatre, on a motor cycle. At 11.45 p.m.,  the  appellant
      and three others also came to his shop and had coffee.  The  appellant
      then returned to the van after which, the other three persons also got
      into the van.  The appellant got into the driver’s seat  of  the  van.
      When most of the people had left after watching the movie, the witness
      saw Vinu (A-2) and Praveen on the said  motor  cycle,  riding  towards
      Thirunakkara.  Vinu (A-2) came close to the van, lifted his  hand  and
      then proceeded. Thereafter, the van in which the appellant  (A-1)  was
      sitting, followed them. During the cross-examination on behalf of  the
      appellant (A-1), the witness deposed that at the  time  when  A-2  had
      lifted his hand, there was only a distance of 5 feet between  the  van
      and motorcycle. This witness further deposed that he  had  been  shown
      only one photograph. He stated that A-1 had come to his shop  and  had
      remained there for 10-15 minutes.   During this  cross-examination  on
      behalf of A-2, the said witness also deposed  that  he  had  told  the
      police and magistrate that A-2 and Praveen had eaten a Bull’s eye, and
      that he had accepted cash from them and had also returned the balance.




      25.   Baiju (PW.9), was working as the barman  at  Hotel  Arcadia.  He
      deposed that it was in fact, A-2 who had come with another  person  on
      the 15th February 2005, at about  6.30  p.m.  to  the  Hotel  and  had
      consumed liquor.  He stated that they had remained  in  the  bar  till
      about 8.30 p.m. and that A-2  had  paid  the  bill.  The  witness  had
      noticed the  presence  of  the  two  because  they  were  both  highly
      intoxicated at the said  time.


      26.   Mohanan (PW-10), an auto rickshaw driver, deposed that  on  15th
      February 2005, he had seen an Omni Van along the eastern side  of  the
      Arpookara temple. That night, he was driving  from  MCH,  to  Kottayam
      town via Panambalam road. While returning, he stated that he had  seen
      the Omni Van some 200 metres east of the temple, and on  the  southern
      side of the road at about 12.30 -1 am. The van  was  green  in  colour
      with KL7 registration and 5855 number.  Furthermore, a  man  was  also
      seen by him standing near the door of the driver’s seat.  Upon asking,
      the said man only replied that one person had gone up.  He  could  not
      see much as the van was closed but, the vehicle was most  certainly  a
      van MO.5. During cross-examination on behalf of appellant  (A-1),  the
      witness deposed that the person standing near  the  said  van,  had  a
      North Malabari accent.


      27.   Shanavas (PW.12) also an auto driver by  profession,  identified
      Shaji (A-1) and Vinu (A-2). He deposed that he had first seen them  on
      15th February 2005 while he was proceeding  in  his  auto  from  Baker
      Junction to MCH. He had seen an Omni Van and a motorcycle on the  side
      of the road beyond Chemmanampadi, near the Medical  College,  and  had
      seen two persons coming out of the said van.  He further deposed  that
      the two people had then caught hold of the pillion rider of the  motor
      cycle, and had taken him to the van.  Thereafter, the,  van  left  the
      place and he followed the van to MCH. He identified  A-1 as the person
      he had seen there and A-2, as the  person  who  had  been  riding  the
      motorcycle.
           During his cross examination by the appellant (A-1), the witness
      deposed that he had in fact, seen three other persons there.  However,
      he did not identify them.


      28.   Mohammad Sherif (PW.13) a businessman, deposed that he knew  the
      appellant (A-1) and identified him as Shaji and also  Vinu  (A-2).  At
      about 8.30 p.m. on 15th February 2005, A2  and  Praveen  came  to  his
      petty shop from the Arcadia Bar premises, on a red coloured bike. Jose
      (PW8), an employee of PW13 was previously acquainted with the  accused
      (A-2) and Praveen (deceased), and hence, PW8 introduced  them  as  his
      friends. He further deposed that the Omni Van arrived in front of  the
      Arcadia Bar at 11.30 pm. A1 got out of the driver seat  and  proceeded
      to the theatre. The three other persons came out of the  van  and  had
      black coffee at the witness’s shop. All of them (including  A-1)  then
      returned to the van.  Later, when  A-2  and  Praveen  riding  a  bike,
      approached the Arcadia Bar, A-2 signaled to A-1 to follow him and rode
      in the direction of Thirunakkara. The van followed the bike  and  they
      headed to MCH, Ettumanoor and Ernakulam.
           During the cross examination on behalf of the  appellant  (A-1),
      the witness deposed that he did not tell anybody about A1 and that  he
      did not even talk to Jose (PW.8), about the incident that occurred  on
      15/02/2005. He deposed that he did not know A1’s friends, or the place
      to which A1 belonged. He only stated that he knew A1 when he  was  the
      control room, S.I.
           Mohammed Sherif (PW.13) denied having told the Police that Shaji
      Sir of Valiadu was the person he had seen on the road. He deposed that
      he knew S.I.s such as Satheesan and Suseelan, and that they were  also
      from the West Police Station. He further said that he knew of A1  only
      as control room S.I. He had read about the incident  in the subsequent
      days’ newspaper. He further admitted that the help of the  police,  as
      well as that of the Municipality, was needed to  run  the  petty  shop
      which did business from 8.00 p.m. to 1.30 a.m.
      29.   Reji (PW11) deposed that on 15.2.2005 at about mid-night, he had
      gone to Baker Junction and there he  had  seen  the  appellant  (A-1),
      getting out of  the  driver’s  seat  of  a  green  coloured  van.   He
      thereafter,  crossed M.C. Road and went  into  the  Post  Office   and
      placed inland like material inside the post box.  The appellant  (A-1)
      returned to the van after crossing the road,  got  into  the  driver’s
      seat and drove off towards Baker Junction.  It  appears  that  in  the
      cross-examination, he did not support the  case  of  the  prosecution.
      However, his evidence is not very relevant with respect to the  issues
      involved in this case,  as  at  the  initial  stage  the  witness  had
      supported the case of the prosecution to the extent  that  it  was  in
      fact, the appellant (A-1), who had posted the letter in  the  name  of
      the deceased’s father, that was purported  to  have  been  written  by
      Praveen (deceased), stating that he was going to Bombay in  search  of
      employment.    This   letter   seems   to   have   been   written   to
      misdirect/mislead the deceased’s  family.  The  same  became  entirely
      insignificant,  as  immediately  after  the  murder  of  Praveen,  the
      dismembered  parts  of  his  body  were  recovered.   Thereafter,  the
      incident became the talk of the town and the same was high-lighted  by
      both, the print and the electronic media.


      30.   The evidence referred to hereinabove alongwith the  material  on
      record, reveals that Praveen (deceased) was a victim of  homicide  and
      further that there is no dispute regarding the identification  of  his
      body and its parts thereof, as has been referred to hereinabove.   The
      recoveries of a shirt (MO.1), underwear (MO.2) and of a watch  (MO.3),
      belonging to Praveen (deceased) were identified by  Pavithran  (PW.1).
      His body was also identified by PWs.1 to 3 and the DNA report did  not
      leave any room for doubt with  respect  to  the  said  identification.
      Same stood proved by super imposition.
            The injuries found on the body that were revealed by  the  post-
      mortem  report established that the dismemberment of the parts of  the
      body was possible by using a weapon like the chopper  (MO.4),  as  was
      explained/opined by Dr. Babu (PW.71).  Praveen died in the intervening
      night between 15/16.2.2005.  He was last seen on 15.2.2005  with  Vinu
      (A-2) and the appellant (A-1).  The motive  as  explained  hereinabove
      stood proved.    Vinu (A-2)  and  the  appellant  (A-1)  were  closely
      related and together  they  had  hatched  a  conspiracy  to  eliminate
      Praveen (deceased).  Pavithran (PW.1) has  stated  in  his  deposition
      that Praveen (deceased) did not bear any animosity towards any person.
       In fact, in his statement under Section 313  Cr.P.C.,  the  appellant
      has even admitted so.  Praveen (deceased) was seen by Divakaran (PW.7)
      talking to Vinu  (A-2)  at  his  work  place.   Divakaran  (PW.7)  was
      acquainted  with  both  Vinu  (A-2)  and  Praveen   (deceased)   since
      childhood.
            The evidence of Baiju (PW.9) who was working at Hotel Arcadia at
      Kottayam, revealed that he was the man who had served drinks  to  Vinu
      (A-2) and Praveen (deceased).  The  Virca  Report  proved  by  Sujatha
      (PW.64), corroborated the same.
            Jose (PW.8) and Mohammed Sherif (PW.13) identified the appellant
      (A-1) and Vinu (A-2) and stated they knew  both  of  them  very  well.
      Baiju (PW.9) was not acquainted with  either  Vinu  (A-2)  or  Praveen
      (deceased) but he did in fact, have an opportunity to see them  for  a
      sufficient amount of time as he had served  them  food.   Babu  (PW.6)
      deposed that the appellant (A-1) was well  acquainted  with  him.   He
      stated that he had taken  the  Maruti  Van  (MO.5)  from  him  on  the
      afternoon of 15.2.2005, and had  returned  the  same  to  him  on  the
      afternoon of 16.2.2005.  Phone calls made by the  appellant  (A-1)  to
      Babu (PW.6), were also not denied  by  the  appellant  in  his  cross-
      examination under Section 313 Cr.P.C.  The aforementioned call details
      were duly proved.  There is also material on record to show  that  the
      said van was used in the crime by the appellant (A-1) and 3 others.
            Vinu (A-2) and Praveen (deceased) after watching a movie at  the
      cinema hall and having meals etc., proceeded towards  Thirunakkara  on
      the bike, and Vinu (A-2) signaled to the person in the van by  raising
      his hand.  The  appellant (A-1) and three other persons  followed  the
      bike in the van.  On the way Praveen (deceased), was transferred  from
      the bike to the van as deposed by Shanavas (PW.12) auto driver, who is
      a natural witness, and he also identified the appellant (A-1), Vinu (A-
      2), and Praveen (deceased) by way of photographs.  He stated  that  he
      had seen the van standing in the middle of the road.  The said witness
      turned hostile  and  did  not  support  the  prosecution  case  fully.
      Recoveries of all the material items/objects stood proved.


      31.   A criminal conspiracy is generally hatched in secrecy, owing  to
      which, direct  evidence  is  difficult  to  obtain.  The  offence  can
      therefore be proved, either by adducing circumstantial evidence, or by
      way  of  necessary  implication.   However,  in  the  event  that  the
      circumstantial evidence is incomplete or vague, it  becomes  necessary
      for the prosecution to provide adequate proof regarding the meeting of
      minds,  which is essential in order to hatch a criminal conspiracy, by
      adducing  substantive evidence in court.   Furthermore,  in  order  to
      constitute the offence of conspiracy, it is  not  necessary  that  the
      person involved has   knowledge of all the stages of action. In  fact,
      mere knowledge of the main object/purpose of conspiracy, would warrant
      the attraction of   relevant  penal  provisions.  Thus,  an  agreement
      between two persons to do, or to cause an illegal act,  is  the  basic
      requirement of the offence of  conspiracy  under  the  penal  statute.
      (Vide: Mir Nagvi Askari v. CBI, AIR 2010 SC 528; Baldev Singh v. State
      of Punjab, AIR 2009 SC Supp. 1629; State of M.P. v. Sheetla Sahai, AIR
      2009 SC Supp. 1744; R. Venkatkrishnan v. CBI, AIR  2010  SC  1812;  S.
      Arul Raja v. State of T.N., (2010) 8 SCC 233; Monica Bedi v. State  of
      A.P., (2011) 1 SCC 284; and Sushil Suri v. CBI, AIR 2011 SC 1713).


      32.   An argument has been  advanced  by  Shri  S.  Gopokumaran  Nair,
      learned senior counsel appearing on behalf of the appellant,  that  as
      the witnesses PW.8 and PW.11 have admitted in their cross-examination,
      that they have been the accused  persons  in  certain  other  criminal
      cases, their testimony should not have been relied upon by the  courts
      below.  The argument seems to be rather attractive at the outset,  but
      has no substance, for the reason that the law does not prohibit taking
      into consideration even the evidence provided by  an  accomplice,  who
      has not been put to trial.
           It is a settled legal proposition that the evidence provided  by
      a person who has not been put to trial, and who could  not  have  been
      tried jointly with the accused can be considered, if the  court  finds
      his evidence reliable, and conviction can also safely  be  based  upon
      it.  However, such evidence is required to be considered with care and
      caution. An accomplice who has not been put to trial  is  a  competent
      witness, as he deposes in court after taking an oath, and there is  no
      prohibition  under  any  law  to  act  upon  his  deposition   without
      corroboration.  (Vide:  Laxmipat  Choraria  &   Ors.   v.   State   of
      Maharashtra, AIR 1968 SC 938; Chandran alias Manichan alias Maniyan  &
      Ors. v. State of Kerala, AIR 2011 SC 1594; and Prithipal Singh &  Ors.
      v. State of Punjab & Anr., (2012) 1 SCC 10).


      33.   It has further been submitted that  the  prosecution  failed  to
      hold the test identification parade.  Therefore, the prosecution  case
      itself becomes doubtful.
            In Vijay @ Chinee v. State of M.P.,  (2010)  8  SCC  191,  this
      Court, while dealing  with  the  effect  of  non  holding  of  a  test
      identification parade, placed very heavy reliance upon  the  judgments
      of this Court in Santokh Singh v. Izhar Hussain & Anr.,  AIR  1973  SC
      2190; State of Himachal Pradesh v. Lekh Raj & Anr., AIR 1999 SC  3916;
      and Malkhan Singh & Ors. v. State of M.P., AIR 2003 SC 2669  and  held
      that, the evidence from a test  identification  parade  is  admissible
      under Section 9 of the Evidence Act, 1872.  The identification  parade
      is  conducted  by  the   police.   The   actual   evidence   regarding
      identification, is that which is given by the witnesses in  court.   A
      test identification parade cannot be claimed by an accused as a matter
      of right.  Mere identification of an accused in a test  identification
      parade is only a circumstance corroborative of the  identification  of
      the accused in  court.   Further,  conducting  a  test  identification
      parade is meaningless if the witnesses know the accused,  or  if  they
      have been shown his photographs, or if he  has  been  exposed  by  the
      media to the public. Holding  a  test  identification  parade  may  be
      helpful to the investigation to ascertain whether the investigation is
      being conducted in a proper manner and  with  proper  direction.  (See
      also: Munna Kumar Upadhyay v. State of A.P., AIR 2012 SC 2470).


      34.   In the instant case, the witnesses,  particularly  Jose  (PW.8),
      Baiju (PW.9), Reji (PW.11) and Shanavas (PW.12), made  it  clear  that
      they were acquainted with the appellant since he  was  posted  in  the
      control room of their city.  Moreover, just after  the  incident  took
      place, the  same being a sensitive case wherein the main accused was a
      highly ranked official of the police department,  wide  publicity  was
      given to the same by the media. In light of the  aforementioned  fact-
      situation, the holding/non-holding of  a  Test  Identification  Parade
      loses its significance. It is also pertinent to note that the  defence
      did not  put  any  question  to  B.  Muralidharan  Nair  (PW.77),  the
      investigating officer in relation to why such TI Parade was not held.


      35.   The prime witness of the prosecution has no doubt been  Shanavas
      (PW.12), and in relation to him, the submission advanced on behalf  of
      the appellant  that  the  High  Court  had  entirely  disbelieved  his
      testimony, is  factually  incorrect.
 In  fact,  the  High  Court  re-
      appreciated the evidence of the said witness and held as under:
               “The act of identifying the victim from  his  passport  size
               photograph seems to be unconvincing. But that does not  mean
               that his evidence in toto has to be  thrown  out.  The  fact
               remains that atleast his evidence  as  regards  the  act  of
               accused nos. 1 and 2 and others in forcing a person from the
               motor bike into the van has to be accepted.”


            In view of the above, we do not find any cogent reason  to  dis-
      believe the testimony of Shanavas (PW.12) in toto.


      36.   Be that as it may, when a statement is recorded  in  court,  and
      the witness speaks under oath, after he understands  the  sanctity  of
      the oath taken by him either in the name of God  or  religion,  it  is
      then left to the court to appreciate his evidence under Section  3  of
      the Evidence Act. 
The Judge must consider 
whether a prudent man  would
appreciate such evidence, and not appreciate the  same  in  accordance with his own perception. 
The basis  for  appreciating  evidence  in  a
      civil or criminal case remains the same. However, in view of the  fact
      that in a criminal case, the life and liberty of a person is involved,
      by way of judicial interpretation, courts have created the requirement
      of a high degree of proof.


      37.   In view of the above, we do not find any merit in the appeal and
      the same is dismissed accordingly. However, before  parting  with  the
      case, we would like to mention that the courts below have  appreciated
      the entire evidence meticulously, but it would have been desirable  if
      all the circumstances which completed the chain, rendering the accused
      liable for punishment could have  been  put  together,  to  facilitate
      better understanding of the judgment.






                                                            ..………………………….J.
                                                                 (Dr.   B.S.
    CHAUHAN)




                                             .…………………………..J.
                                        (V. GOPALA GOWDA)
    New Delhi,
    February 4, 2013

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