J.B. Koshy & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.NOs.934, 944 & 1154 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of April, 2007 JUDGMENT T.R. Ramachandran Nair, J. The appellants in the above appeals are accused 1 to 3 in Sessions Case No.353/2003 of the Court of Addl. Sessions Judge (Adhoc-II), Thodupuzha. All the three accused were found guilty under Sections 302, 392 and 201 I.P.C. They have been sentenced to undergo imprisonment for life and to remit fine of Rs.10,000/- each under Section 302 I.P.C. They were also sentenced to undergo rigorous imprisonment for a term of 10 years and to remit a fine of Rs.5,000/- by each under Section 392 I.P.C. The accused were further sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.2,000/- by each of them under Section 201 I.P.C. Set off allowed. 2. This is a case where the accused, three in number, are alleged to have murdered one Manikandan and robbed away a car bearing Registration No.KL-7 AF 1010 of which the deceased was the driver. The prosecution case in short is the following: 3. The incident occurred on 29.3.2002. The car which was being Crl.A.934, 944 & 1154/2004 -2- driven by the deceased was an Indica car owned by P.W.19. It was operated in association with M/s. Classic Tours and Travels, Ernakulam which is a proprietary concern owned by P.W.7. It was being operated as a tourist taxi at the relevant time. On the date of incident, accused 1 to 3 hired the car for a trip from Ernakulam to Kattappana. On the way, when they reached near a forest area, they inflicted serious stab injuries on Manikantan who was left in the forest area itself and stole the car and took it to Kambam in Tamil Nadu. 3. There are no eye witnesses to the incident and the entire prosecution story is rested upon circumstantial evidence. The learned Sessions Judge found that the prosecution has been able to prove the circumstances amply and the chain of circumstances proved established the guilt of the accused to the hilt and accordingly convicted and sentenced them. 4. Before this court, the counsels for the appellants mainly argued that the prosecution has developed only a false story before the trial court that at any rate, all the chain of circumstances have not been proved to the hilt, that the deceased was also involved in the act of stealing the vehicle and the real culprits are being shielded by the prosecution and the accused are only made scapegoats. Vehement arguments have been raised Crl.A.934, 944 & 1154/2004 -3- regarding the whole exercise done by the investigating agency for identification of the accused by conducting the test identification parade and that the accused are, at any rate, entitled to the benefit of reasonable doubt. 5. It was also argued that the evidence regarding the recovery of material objects and the weapon used by the accused are also not credit worthy and hence the findings rendered by the trial court relying on the said evidence are also liable to be set aside. Counsel also pointed out that certain aspects required proof by way of scientific evidence, the said best evidence was suppressed by the prosecution and the same is a serious lapse affecting the whole case . It is also pointed out that the crucial witnesses are associates/friends of the deceased and without any independent evidence of other witnesses, the guilt of the accused should not have been presumed. 6. In the light of the above arguments, a detailed discussion of the evidence of the witnesses is necessary. P.W.1 is the person who had given the First Information statement, Ext.P1 to the police in connection with the incident. He was the conductor of a bus bearing Registration No.KL-6A 7907 operated by Prakash Motors, which was being run in the route Thopramkudi-Muvattupuzha. While the bus was proceeding to Thodupuzha at about 5.45 p.m. when it reached a place called Cheribhagam, one person who was crawling on the side of the road, showed signal to stop it and even Crl.A.934, 944 & 1154/2004 -4- though the bus passed him, since the conductor saw him signalling, he gave bell to stop the vehicle. On seeing the bus stopping, he alighted the bus and was seated on one of the right side seats. According to P.W.1, injuries were seen on his head and neck and blood was also seen. P.W.1 asked him what had happened. It was repeated by the other passengers also. But he was not in a position to speak and was unable to respond obviously due to the injuries on his neck and head. According to P.w.1, he went out of the bus to see whether there was any vehicle accident but did not find anything. On seeing his condition, the vehicle was taken to a hospital and during this journey the man lied down in the bus itself. Ultimately, the vehicle reached the Taluk Hospital, Thodupuzha. In between, they had informed the police and one of the policeman was also deputed to accompany the injured. On reaching the hospital, the doctor examined him and declared him dead. He gave the F.I. statement in the Kulamavu Police Station in the morning. He identified MOs.1 and 2, the shirt and pants which were worn by the deceased on that day. 7. P.w.31 had conducted the autopsy on the body and Ext.P19 is the postmortem certificate issued by him after the postmortem examination in the Medical College Hospital, Kottayam. There were 22 injuries noted therein out of which injuries 1 to 7 and 15 were fatal injuries. His opinion Crl.A.934, 944 & 1154/2004 -5- was that death was due to the injuries caused on the head and neck. The injuries noted in Ext.P19 are the following: “1. Lacerated wound, 1.5 x 0.5 cm. bone deep on right side of head 6.5 cm. above ear. 2. Lacerated wound 4 x 2 cm. bone deep on the top of middle of head. 3. Lacerated wound 3 x 1 cm. bone deep, on left side of head, 10 cm above ear. 4. Contused abrasion, 2 x 1 cm. on the right side of forehead, 1 cm. above outer end of eyebrow. 5. Lacerated wound 3.5 x 0.5 cm. bone deep horizontal over left eyebrow. 6. Lacerated wound 2.5 x 0.7 x 0.3 cm. oblique on left side of forehead, lower inner end 1.5 cm. outer to midline and 0.5 cm. above eyebrow. 7. Contused abrasion, 6 x 4 cm. on left side of forehead, 1 cm. outer to midline and just above injury No.6. Floor of anterior cranial fossa showed comminutted fracture over an area 9 x 7 cm. Under surface of left frontal lobe of brain showed laceration 7 x 5 x 0.3 cm. Subarachnoid bleeding on both sides of brain. 8. Contused abrasion 2.5 x 2 cm. pm on the front of nose, 1.5 cm below root. 9. Contused abrasion, 2 x 1 cm on the tip of nose. 10. Contused abrasion, 3 x 1.5 c.m. over left cheek. Maxilla bone underneath showed frcture. The upper left central incisor tooth showed fracture separation and was missing. 11. Contusion 4 x 2 x 0.5 cm. on the middle of inner aspect of upper Crl.A.934, 944 & 1154/2004 -6- lip. 12. Lacterated wound 2 x 1 x 0.5 cm. on the middle of inner aspect of lower lip. 13. Contused abrasion, 7 x 3 cm over the chin 14. Incised wound 14 x 1 x 0.3 cm. oblique left side of neck, lower front end being 4 cm outer to midline and 3 cm below jaw bone and back end at midline on back of neck. 15. Incised punctured wound, 3.3 x 0.8 x 4 cm. horizontal on the front of middle of neck, 2 cm above the sternum. the trachea underneath front cleanly cut. Both ends of wound sharply cut. 16. Abrasion 0.8 x 0.5 cm on front of right leg, 9 cm below knee. 17. Contused abrasion 6 x 2 cm. on outer aspect of right ankle. 18. Contused abrasion 3 x 0.8 cm. on inner aspect of right ankle. 19. Contusion 7 x 5 x 1 cm. on left palm, at root of thumb. 20. Contused abrasion 6x5 cm on front of left arm, 8 cm below top of shoulder. 21. Incised wound 0.7 x 0.5 x 0.5 cm. on the front of left forearm 6 cm above wrist. 22. Contused abrasion 6x2.5 cm on the top of left shoulder.” 8. The hiring of the Indica car by accused 1 to 3 are proved through P.Ws.2, 3, 6, 7 and 8. The accused had approached P.W.6 originally, who was the driver of a tourist taxi bearing registration No.KL-7 AG 6055. It was an Indica car and was parked near the north over bridge, Ernakulam in Crl.A.934, 944 & 1154/2004 -7- front of M/s. Broadway Travels. According to P.W.6, he was working as a driver in a car operated by M/s. Broadway Travels situated in Ernakulam North. P.W.6 deposed that at about 12 noon on 29.3.2002 accused 1 to 3 approached him for a trip to Kattappana stating that they want to bring down computer components from there. Since he was about to make a trip to Thiruvananthapuram, he told them to meet one Raveendran (P.W.2). Immediately he left for Thiruvananthapuram and only when he returned, he knew about the murder of Manikantan. He identified all the three accused in court and he had identified them in the test identification parade also. The evidence of P.W.6 shows that he had occasion to talk to the appellants and he could reflect the incident vividly. 9. The evidence of P.W.6 is corroborated in material particulars by the evidence of P.W.2. P.W.2 at that time was a driver of an ambassador car with registration No.KCF 7150. This car was also being operated by M/s. Broadway Travels. According to P.W.2, P.W.6 asked him whether he will be able to oblige the accused for a trip to Kattappana as P.W.6 was already engaged to go to Trivandrum. P.W.2 immediately agreed and accused 1 to 3 came to him and informed about the purpose for the trip. When P.W.2 showed them the car, he was told that they do not want an ambassador car but they want an Indica car. While they were talking, P.W.3 came to the Crl.A.934, 944 & 1154/2004 -8- spot with an Indica car with Reg. No.KL7-AA 5272. When P.W.3 was asked whether he was willing to have the trip, he told P.W.2 that he has got a trip to Calicut and he assured the accused that another vehicle would be arranged. Accordingly, P.W.3 contacted the deceased through mobile phone. The deceased responded to the call and came down with the vehicle KL-7 AF 1010. P.W.2 deposed further that the deceased agreed to go to Kattappana in his car and the trip started at about 12.30 p.m. He also identified M.O.1 and M.O.2, the shirt and pants worn by the deceased at the relevant time. He had identified the accused in the test identification parade. 10. In the cross examination also, P.W.2 has clearly stated that all the three accused came together and the deceased was contacted over mobile phone under the north over bridge. All the three accused were identified by P.W.2 in court. He also stated that even though normally the drivers have to wear their uniform like white shirt and white pants, 29.3.2002 being Good Friday, that formality was not followed and the deceased was wearing his own usual dress. A suggestion was put to him that before identification parade was conducted, the photographs of accused were published in newspapers and whether he had seen it. This was denied by him. 11. The evidence of P.Ws.2, 3 and 6 are amply corroborated by the Crl.A.934, 944 & 1154/2004 -9- evidence of P.W.7. P.W.7 is a person who was operating Classic Tours and Travels and the car driven by the deceased was entrusted with him for renting out. The evidence of P.W.7 shows that on the date of incident at about 12.30 p.m. the deceased telephoned him and informed him that he is on a trip to Kattappana. P.W.6 asked him whether the party is familiar to him and it was replied by the deceased that even though he was not directly known to them, his friend had introduced. His evidence also shows that the deceased informed him that the accused will be able to pay the money only after reaching Kattappana and even though P.W.7 cautioned him not to leave without getting advance and wanted the deceased to bring them to his office, the deceased informed him that as the party was entrusted to him by his friend, he was leaving for the trip. It is P.W.7 who apart from P.Ws.8 and 20, had identified the body on 31.3.2002 in the Medical College Hospital as that of deceased Manikantan. He had also identified the dress worn by the deceased at the relevant time. 12. Thus, the prosecution has relied upon the evidence of P.Ws.2, 3, 6 and 7 to prove that the car driven by the deceased was hired by the accused on the date of incident for going to Kattappana. Even though the counsel for the appellants/accused strongly argued for the position that their evidence is only artificial and that these witnesses have only been planted Crl.A.934, 944 & 1154/2004 -10- by the prosecution, we find that the said argument is not having any force in the light of the clear evidence available in the case. Apart from the evidence of P.Ws.2, 3, 6 and 7 there is evidence of P.W.8 which corroborates the evidence of the other witnesses. 13. P.W.8 is also another driver of an ambassador car bearing registration No. KL 7 9090 and engaged by Classic Tours and Travels. According to P.W.8, while he and Manikantan were sitting in the ambassador car just near the office of the travel agency, Manikantan received a telephone call through mobile informing him that there is the possibility of a trip to Kattappana. Immediately Manikantan responded and went for finalising the trip with his car. He also identified the dress worn by the deceased at the relevant time. Thus, the entire chain of circumstances leading to the hiring of the vehicle has been proved to the hilt by the prosecution through their evidence. 14. Even though the counsel for the appellants strongly argued that their evidence is shaky and is not credit worthy, the argument developed does not appear to be sound. One of the main arguments raised against the acceptability of their evidence is that they did not go to see the dead body of Manikantan in spite of the fact that information reached them about the murder of Manikantan, in the Medical College. The evidence of P.W.7 Crl.A.934, 944 & 1154/2004 -11- shows that it was he who identified the dead body as that of Manikantan. It is clear from the evidence that the deceased was operating the vehicle as authorised by the travel agency owned by P.W.7. Therefore, it was only normal that the person who identified the dead body was P.W.7 and there is nothing unusual in the other witnesses not going immediately to the Medical College Hospital and confirming the dead body as that of Manikantan. Because of that circumstance alone their evidence cannot be discarded. P.W.8 another driver and P.W.20, the father of the deceased had also gone to the Medical College Hospital to identify the dead body. The next argument is that they are friends of the deceased and therefore the prosecution has planted them so as to form the chain of circumstances. This argument also cannot be accepted for more reasons than one. Firstly, the prosecution was attempting to prove the transaction of hiring the vehicle through these witnesses. The depositions of those witnesses will amply show that all the witnesses, viz. P.Ws.2, 3, 6 and 7 are categoric about the accused approaching the travel agency for hiring an Indica car for a trip to Kattappana. It is of importance to notice that in the cross examination no attempt had been made to challenge effectively their version regarding the hiring of the vehicle by the accused. The evidence of P.W.7 also would show that the deceased had informed him about the trip just before starting Crl.A.934, 944 & 1154/2004 -12- the journey and he had contacted him through phone even while he was proceeding with the trip. The owner of the travel agency and other witnesses are in the business of renting out cars and such a transaction is only a normal one. Therefore, it cannot be stated that their evidence is only artificial and does not inspire confidence in the court. Their evidence is credit worthy and natural and therefore the same is acceptable. 15. Counsel for the appellants relied upon the following decisions of the Hon'ble Supreme Court, i.e. Bodh Raj alias Bodha and others v. State of Jammu and Kashmir (AIR 2002 SC 3164), State of U.P. v. Satish (AIR 2005 SC 1000), Din Dayal v. Raj Kumar alias Raju and others (1999 Crl.L.J.467) and State of Punjab v. Sucha Singh and others (AIR 2003 SC 1471) in support of their contentions that the evidence adduced by the prosecution in this case are not sufficient to prove the accused guilty. In AIR 2002 SC 3164, their Lordships have held that circumstantial evidence can be the sole basis for conviction if all the conditions are satisfied. The conditions to be satisfied have been reiterated therein which are the following: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; Crl.A.934, 944 & 1154/2004 -13- 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclusive nature and tendency; 4) they should exclude every possible hypothesis except the one to be proved; and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” The said legal position was reiterated in AIR 2005 SC 1000. Counsel for the appellants relied upon the decision of the Hon'ble Supreme Court in State of Rajasthan v. Mani Ram (AIR 2001 SC 2430) to contend for the position that the conduct of the witnesses, viz. P.Ws.2, 3 and 6 in not visiting the Medical College Hospital immediately after coming to know of the murder, is not a natural conduct and therefore their testimony should have been discarded. The facts of the case relied upon by the counsel for the appellants are totally different. That was a case where one of the eye witnesses took no steps to save the deceased from attack by the accused. His evidence was also in conflict with the medical evidence. The Hon'ble Supreme Court did not rely upon the evidence of P.W.11 also as the said witness did not take any steps to save his grandmother with whom he was Crl.A.934, 944 & 1154/2004 -14- living, from the attack of the accused. It is only in the above circumstances that their Lordships found that the conduct is not a natural one. In the decision of the Honourable Supreme Court in 1999 Crl.L.J. 467 also the facts are different. In that case the conduct of the witnesses was found unnatural due to the fact that the eye witnesses who were closely connected with the deceased, did not accompany the deceased to the hospital nor had informed the police about the incident. One of the eye witnesses who was a close relative of the deceased and who had accompanied the deceased to the hospital also did not disclose the name of the accused to the police. It was therefore held that this creates serious doubt regarding truthfulness of evidence of eye witnesses. In the decision reported in AIR 2003 SC 1471, the facts were that the eye witness who was the father of the deceased, did not try to rescue his son who sustained as many as 24 injuries. Therefore, it was held that this conduct makes his presence doubtful. It was in these circumstances the evidence of the eye witness was found most unnatural. 16. Going by the facts of this case, there is nothing in common with the cases cited by the counsel for the appellants. Those are all cases where the eye witnesses even though claimed to have witnessed the incident, did not render anything so to make their position a natural one. Thus, their evidence did not inspire confidence. The circumstances herein are totally Crl.A.934, 944 & 1154/2004 -15- different. Merely because P.Ws.2, 3 and 6 did not go to the Medical College Hospital for identifying the body of the deceased, they will not become untrustworthy. P.W.7 under whom the deceased was operating the taxi, had identified the dead body as that of Manikantan, apart from P.W.8 and P.W.20. Hence, the conduct attributed to P.Ws.2, 3 and 6 in not visiting the hospital to identify the body or to see the dead body, there is not an unnatural one warranting to treat their evidence as untrustworthy. Therefore, we reject the said argument of the counsel for the appellants. The principles stated in those decisions have no application to the facts of this case. 17. The other argument raised by the counsel for the appellants is in regard to the non-acceptability of the evidence regarding identification of the accused in the test identification parade conducted by the investigating agency. The main argument is that the witnesses had the opportunity to see the photographs of the accused through newspapers and therefore their identification in the identification parade is tainted. As a matter of fact, all the witnesses denied seeing the photographs in the newspapers. But even otherwise there is no case that these photographs if at all published, was at the instance of the investigating officer. If at all photographs have been published, the responsibility will lie only with the publisher of the Crl.A.934, 944 & 1154/2004 -16- newspaper and not that of the investigating agency. Even otherwise, going by the principles stated by this court in the decision reported in Sajeevan v. State of Kerala (1993 (1) KLT 712) the evidence given by the witnesses identifying the accused in the identification parade cannot be rejected solely on the ground that photographs of the accused were published in the newspapers. This court and the Honourable Supreme Court have clearly held that simply because of that reason the evidence cannot be eschewed. The following paragraph of the decision in 1993 (1) KLT 712 is apposite to the context herein: “ It is not the work of the investigating agency, but the exercise of journalistic calibre. Investigating agency has, normally, no control over such journalistic adventures. Hence such publication cannot be prevented by the police in a society where freedom of press is guaranteed. It has become very usual that in sensational criminal cases newspapers would display enthusiasm to publish photos of different facets including photos of the accused. It is not necessary that witnesses should see such photos in the newspapers. Even if a witness happens to see the photo of a