IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 CRL.A.No. 2186 of 2005() ------------------------ (SC.246/2002 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA CP.32/2002 of JUDL. MAGI. OF FIRST CLASS-I, THODUPUZHA) .................... APPELLANT: ------------------ KRISHNAT MADHUKAR KADAM, S/O.MADHUKAR JANUKADAM, C.NO.2605, CENTRAL PRISON, KANNUR. BY ADV. SRI.DEEPU THANKAN RESPONDENT: --------------- STATE OF KERALA, REP.BY D.Y.S.P.,CB CID, IDUKKI, CR.NO.2371/CR/01, THODUPUZHA POLICE STATION, CR.NO.469/01. PUBLIC PROSECUTOR SHRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/10/2009, ALONG WITH CRL.A.NO.64/06, THE COURT ON 11.11.2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal Nos. 2186 of 2005 & 64 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2009. JUDGMENT Bhavadasan, J, Four persons were sought to be prosecuted for the offences punishable under Sections 302 and 392 read with Section 34 Indian Penal Code. Among them accused Nos.2 and 3 had absconded and were not available for trial. Accused Nos. 1 and 4 alone stood trial. They were found guilty of the offences alleged against them. They were therefore convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- each, in default of payment of which they have to suffer simple imprisonment for six more months for the offence punishable under Section 302 IPC. They were also directed to suffer rigorous imprisonment for ten years each and to pay a fine of Rs.3000/- each for the offence punishable under Section 392 IPC, in default of payment of fine to suffer Crl.A.2186/2005 & con. Cases. . 2 simple imprisonment for a further period of three months. The substantive sentences were to run concurrently. Set off as per law was also allowed. 2. The first accused has preferred Crl.Appeal No.64 of 2006 and the fourth accused had preferred Crl.Appeal No.2186 of 2005. 3. Asharaf, the unfortunate victim, was a driver by profession. He was driving a Tata Sumo vehicle belonging to P.W.4 bearing registration No.KL-5E-6433. As usual, on 23.8.2001 also the deceased took the vehicle from the house of P.W.4. While waiting at Changanacherry Municipal Taxi Stand, accused Nos. 1 and 4 approached him. The first accused talked to Ashraf, while the fourth accused stood in front of the car. Accused Nos.2 and 3 stood on the opposite side of the road. It appears that accused Nos. 1 to 4 hired the vehicle driven by Ashraf to go to Thodupuzha. All the four got into the vehicle. Since Ashraf felt that he could return only late in the night, he called P.W.3, the Crl.A.2186/2005 & con. Cases. . 3 brother-in-law of P.W.4 from Ettumannoor. Ashraf informed P.W.3 that 3-4 persons hired the vehicle for a trip to Thodupuzha and he will return late in the night. P.W.4, the owner of the vehicle had gone to Coimbatore. On his return late in the night, he did not find the vehicle. On enquiry, he was informed that Ashraf had called and informed that the vehicle has been hired for a trip to Thodupuzha. To the surprise of P.W.4, Ashraf did not return the next day morning also. He found it to be unusual. He therefore enquired in the Municipal Taxi Stand at Changanacherry and came to know that on the previous day the vehicle had been hired to go to Kottayam side. 4. In the meanwhile, P.W.1, a driver by profession at Thodupuzha saw the dead body of Ashraf lying in a bush by the side of the road on 24.8.2001. He informed the Thodupuzha police station and Ext.P1 first information statement was recorded. P.W.1 was not familiar with Ashraf. When he learned that dead body of a person was lying in a bush by the side of a road, he had Crl.A.2186/2005 & con. Cases. . 4 gone to see the same. Ext.P1 was recorded by P.W.29, the Sub Inspector of Police attached to Thodupuzha Police Station. He accordingly registered crime under Ext.P23 FIR. He then summoned the services of Finger Print Expert, Dog Squad and Scientific Expert. He had conducted inquest and prepared Ext.P14 report. M.Os. 1 and 3 series of articles were seized. P.W.31 took over investigation. In the meanwhile, autopsy was conducted by P.W.26 who prepared Ext.P21 postmortem report. Opinion in Ext.P21 report was that death was caused due to penetrating injury sustained on the chest of Ashraf, and that injury could be caused by a knife. 5. P.W.31, who took over investigation recorded statements of the witnesses. On the basis of the statement given by P.W.10 on 27.4.2002, he had arrested accused No.4 on 29.4.2002 at about 8.30 p.m. On 30.4.2002 a team of officers went to Maharashtra. The team was headed by P.W.30. They reached Maharashtra and located accused Nos.2 and 3. They were arrested Crl.A.2186/2005 & con. Cases. . 5 on 6.5.2002 at 7.30 a.m. On search of accused Nos. 2 and 3 they were able to recover a metal chain from the possession of accused No.2. Based on the confession statement of accused No.3, namely, Ext.P24(a), the car was recovered as per Ext.P24 mahazar. Based on Ext.P6(a) confession statement said to have been given by accused No.4, battery of the vehicle and number plates, namely M.O.10, 3 and 4 series were recovered. Search of the house of accused No.1 resulted in recovery of M.Os. 6, 7 and 9. Ext.P25 is the search list. On 6.5.2002 at about 5 p.m. the search of the house of accused No.4 was conducted and M.O.16 was recovered. Ext.P26 is the search list. Thereafter accused No.2's house was searched and Ext.P27 is the search list. In the meanwhile P.W.31 had the body hair, scalp hair, blood and body tissues of accused Nos. 1 and 4 collected with the aid of P.W.23. He obtained the site plan and various other documents necessary for the case, recorded statements of witnesses and completed investigation and laid charge before court. Crl.A.2186/2005 & con. Cases. . 6 6. JFCM, Thodupuzha, before whom final charge was laid, took cognizance of the offences. All the accused entered appearance. The learned Magistrate completed all the legal formalities. The learned Magistrate found that the offence is one exclusively triable by a court of Sessions and therefore committed the case to Sessions Court, Thodupuzha under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court, Ad hoc I, Thodupuzha for trial and disposal. 7. Even though before the said court all the four accused appeared initially, later on accused Nos. 2 and 3 absconded and the case against them was split up and re-filed. After hearing both sides, charge was framed for the offences punishable under Sections 302 and 392 read with Section 34 Indian Penal Code. The charge was read over to accused Nos. 1 and 4. They pleaded not guilty and claimed to be tried. Prosecution therefore had P.Ws. 1 to 31 examined Exts.P1 to P31 Crl.A.2186/2005 & con. Cases. . 7 marked. They also had M.Os. 1 to 17 identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 of the Criminal Procedure Code. They denied all the incriminating circumstances brought out in evidence and maintained that they were innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C. they were asked to enter on their defence. Accused Nos. 1 and 4 chose to adduce no evidence. On the basis of the available evidence, the court came to the conclusion that the prosecution has established the guilt of accused Nos.1 and 4. Accordingly conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal. 8. The question is are there any grounds made out to interfere with the conviction and sentence passed by the court below. 9. The prosecution says that accused Nos.1 and 4 along with accused Nos. 2 and 3 with a common intention to rob the Crl.A.2186/2005 & con. Cases. . 8 vehicle hired the vehicle to go to Thodupuzha. On the way, they killed Ashraf and took away the vehicle. 10. P.W.1 lodged the First Information Statement as he had the occasion to see the dead body of Ashraf lying in a bush by the side of the road. P.W.2 is the brother of the deceased. On 23.8.2001 Asharaf had gone as usual with the vehicle and parked his vehicle in the Municipal Taxi Stand at Changanacherry. Usually Ashraf returned early in the evening. On the date of the incident Ashraf had not come home as night advanced. Therefore P.W.2, the brother of the victim telephoned to the house of P.W.4, the owner of the vehicle. P.W.2 was informed that Ashraf had gone to Thodupuzha on a trip and would return late in the night. Next day the body of Ashraf was found in a bush by the side of the road. Ashraf had taken up employment with P.W.4 only four months ago. P.W.4 had good opinion about him. It appears that whenever Ashraf found that he will be able to return only very late in the night, he used to inform the same to P.W.4. P.W.4 had gone Crl.A.2186/2005 & con. Cases. . 9 to Coimbatore on 23.8.2001. He returned late in the night. When he did not find his vehicle, he enquired and found that Ashraf had telephoned and said that he would come late in the night as he had been hired for a trip to Thodupuzha. On enquiry the next day by P.W.4 he came to know that on the previous day his vehicle had been hired by three or four persons to go to Thodupuzha. On his way, it seems that Ashraf had occasioned to pass by the shop of P.W.5. Ashraf told P.W.5 that if anybody called from his house, they may be told that he will return late in the night as he was going to Thodupuzha. 11. P.Ws.6 and 7 are two important witnesses for the prosecution. They were drivers who parked their vehicles in the Municipal Taxi Stand at Changanacherry. Their evidence shows that on 23.8.2001 the accused had come to the Taxi Stand at about 6.30 p.m.. Two of them stood on the opposite side of the road and accused Nos. 1 and 4 approached Ashraf. One of them stood in front of the vehicle. Soon accused Nos.1 and 4 called accused Crl.A.2186/2005 & con. Cases. . 10 Nos. 2 and 3 and they left in the car driven by Ashraf. According to these witnesses, they came to know that Ashraf was no more from the newspaper Rashtradeepika on the next day. P.Ws. 8 and 9 deposed that the accused persons had taken a room in the lodge owned by P.W.8 on 22.8.2001. This is not of much significance at all. P.W.10 is the uncle of accused No.4. Accused No.4 was a friend of the first accused. P.W.10 deposed that first accused had worked with him for for years. Since the conduct of accused No.1 was far from satisfactory, P.W.10 sent him away. It seem from his evidence that accused No.4 had worked at a place in Muvattupuzha for four years and then he left Kerala. From the evidence of this witness, it is seen that accused No.4 had called P.W.10 and enquired about first accused. It was revealed to him that accused No1 owed Rs.25,000/- and that accused No.4 had come in search of accused No.1. The evidence is to the effect that accused No.4 told him that he along with others had taken a Tata Sumo vehicle. As per the evidence of P.W.10 he telephoned to the Crl.A.2186/2005 & con. Cases. . 11 house of accused No.4. The call was attended by the father of fourth accused, who informed P.W.10 that a Tata Sumo had been brought to the house and he does not know how fourth accused came into possession of the same. P.W.10 seems to have passed on this information to a Police Constable by name Faizal. Faizal told him to inform the Crime Branch. P.Ws. 11 and 12 are the witnesses to the recoveries and other matters. Their evidence will be discussed at the appropriate places. P.W.26 had conducted autopsy over the body of deceased Ashraf and furnished Ext.P21 report. P.W.24 is the Assistant Director of FSL who prepared Exts.P17 and P18. P.W.27 had conducted identification parade. P.W.28 is the Joint Director of FSL, who had collected hair samples from the car. The evidence of P.Ws. 29, 30 and 31, who are the police officers had already been referred to. 12. The court below seems to have been impressed by the evidence of P.Ws. 6, 7, 8, 9, 27, 30 and 31. Reliance was also placed on the extra judicial confession alleged to have been made Crl.A.2186/2005 & con. Cases. . 12 by accused No.4 to P.W.10 as one of the circumstances which went against the accused. So also the court below found that various recoveries were properly proved. Finding that cogent evidence was adduced by the prosecution, the court below held accused Nos.1 and 4 guilty. 13. Learned counsel appearing for the first accused in Crl.Appeal 64 of 2006 pointed out that the case is built on circumstantial evidence. In such cases, no link should remain unsubstantiated. The link established should form a complete chain leading to an irresistible conclusion of the guilt of the accused and should be inconsistent with his innocence. Learned counsel pointed out that the court below had relied on the following circumstances: a) Identification of accused Nos.1 and 4 by P.Ws.6, 7, 8 and 9. b) Extra judicial confession to P.W.10 by accused No.4. Crl.A.2186/2005 & con. Cases. . 13 c) The hairs taken from the vehicle matched with the hair samples of accused Nos. 1 and 4. d) Recovery and seizure of various articles. 14. Learned counsel for the appellant in Crl.Appeal 64 of 2006 pointed out that none of the above circumstances is established beyond reasonable doubt. The evidence of P.Ws. 6, 7, 8 and 9 regarding the identification of the accused cannot be accepted. After the arrest of accused Nos. 1 to 4, atleast on two occasions, they were produced before the JFCM court for extension of remand and the witnesses could have easily seen them. Custody of first and fourth accused was obtained on 6.5.2002 and accused Nos.2 and 3 on 10.5.2002. Test identification parade was conducted only on 1.6.2002. Meanwhile, the evidence shows that, according to learned counsel, the accused were taken to various places. It was very easy for the witnesses to see them and the test identification parade conducted by P.W.27 was an idle exercise. It was also pointed out that the persons Crl.A.2186/2005 & con. Cases. . 14 selected for the identification parade had no comparison with the accused persons and that too vitiated the identification parade. In support of his contention, learned counsel for the appellant relied on the decisions reported in Suryamoorthi v. Vogindaswamy ((1989) 3 SCC 24) and State of A.P. v. M.V. Ramana Reddy ((1991 4 SCC 536). Relying on the above decision, it was contended that the identification parade said to have been made is of no value. 15. Drawing attention to the so-called confession statement said to have been made by accused No.4 to P.W.10, the learned counsel pointed out that that statement by accused No.4 to P.W.10 cannot bind accused No.1. In support of this contention, learned counsel relied on the decision reported in Basanti v. State of Himachal Pradesh ((1987) 3 SCC 227). 16. As regards the hair samples, learned counsel pointed out that it is true that the car was seized long before the arrest of accused. But the hair samples taken from the car and hair Crl.A.2186/2005 & con. Cases. . 15 samples of the accused reached the FSL on the same date. There is no explanation from the side of the prosecution as to why there was delay in forwarding the hair samples taken from the car to the FSL. Under the given circumstance, according to learned counsel, manipulation by the investigating agency cannot be ruled out. According to learned counsel, equally shabby is the evidence regarding the recoveries made. As regards the recoveries, it is stated that most of the recoveries were made from the house of the accused while they were in custody. For reasons best known to the investigating agency, they did not feel it necessary to take the accused to their houses. It is also pointed out that none of the witnesses to the various recoveries was examined. Therefore, according to learned counsel, the recoveries cannot be relied on. 17. Learned counsel appearing for accused No.4 in Crl.Appeal 2186 of 2005 in addition to the grounds urged by the learned counsel for he appellant in the other case pointed out that the so called confession statement given by accused No.4 to Crl.A.2186/2005 & con. Cases. . 16 P.W.10 does not implicate accused No.4 at all. If that be so, it could not be treated as an extra judicial confession. 18. Learned Public Prosecutor countering the above arguments pointed out that the contentions taken by the appellants are without any basis. The court below, according to the learned Public Prosecutor has considered the evidence in considerable detail and had come to the conclusion that they are acceptable. According to the Public Prosecutor, identification parade conducted was proper. There is no fixed formula regarding the conduct of identification parade and effect of the identification parade conducted varies from case to case depending upon the facts of each case. Learned Public Prosecutor also pointed out that there can be no precedents with respect to the appreciation of evidence as the evidence in each case will have to be independently evaluated. Learned Public Prosecutor stressed that the prosecution has produced all the possible evidence and none should expect the impossible from the prosecution. Identification Crl.A.2186/2005 & con. Cases. . 17 of the accused by P.Ws.6 to 9, recovery of M.O.11 book and various other articles some of which were parts of the vehicle belonging to P.W.4 are sufficient to show the involvement of accused Nos.1 and 4 in the crime. Ext.P19 report furnished by the expert regarding the hair analysis also indicate that the accused were involved. All the links in the chain had been independently proved and according to the learned Public Prosecutor the cumulative effect of the links so proved lead to the irresistible conclusion that it was the accused and the accused alone, who had committed the gruesome act. Therefore, the learned Public Prosecutor, summed up by saying that no grounds are made out to interfere with the judgment under appeal. 19. The case is built of circumstantial evidence. Principles to be applied are well known. While appreciating circumstantial evidence, it is stated that the court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete, pointing to the guilt of the accused Crl.A.2186/2005 & con. Cases. . 18 and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. Circumstantial evidence relied on must be found to have been fully established and must be consistent only with the hypothesis of guilt. But it is not to say that the prosecution must meet each and every hypothesis put forward however far fetched or fanciful it may be. The prosecution evidence must not be rejected on the slightest ground because law permits rejection if the doubt is reasonable and not otherwise. It is unnecessary to refer to plethora of decisions on this aspect. It will be sufficient if one refers to the decision reported in Kusuma Ankama Rao v. State of A.P. (AIR 2008 SC 2819), wherein it was held as follows: “It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be Crl.A.2186/2005 & con. Cases. . 19 justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. We may also make a reference to a decision of Crl.A.2186/2005 & con. Cases. . 20 this Court in C.Chenga Reddy and Ors. v. State of A.P. ((1996) 10 SCC 193, wherein it has been observed thus: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....” In Padala Veera Reddy v. State of A.P. And Ors. (AIR 1990 SC 79)l, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain Crl.A.2186/2005 & con. Cases. . 21 conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl. L.J 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 20. It also needs to be noticed that it is not every lingering or fanciful doubt that can be regarded as a reasonable doubt. A doubt must be reasonable and it must be such that a reasonable person would