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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