Crl.A Nos. 1527/2018 & 773/2019, arising out of S.C.No. 407/2007, II Addl. Sessions Court, Thodupuzha, High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944** **CRL.APPEAL NO. 773 OF 2019** **AGAINST THE JUDGMENT DATED 22.10.2018 IN SC.NO.407/2007 OF** **ADDITIONAL DISTRICT & SESSIONS COURT-II, THODUPUZHA** **APPELLANT/2ND ACCUSED:** **RUBAN, S/O.ESAYYA, PUTHENVEETTIL HOUSE, CHAPATH KARA, UPPUTHARA VILLAGE, IDUKKI DISTRICT.** **BY ADVS.M/S. M.P.MADHAVANKUTTY, MATHEW DEVASSI, ANANTHAKRISHNAN A. KARTHA, REMYA M.MENON & ANOOP SATHYAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** **SRI. SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2023, ALONG WITH CRL.APPEAL NO.1527/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 CRL.APPEAL NO. 1527 OF 2018** **AGAINST THE JUDGMENT DATED 22.10.2018 IN SC.NO.407/2007 OF** **ADDITIONAL DISTRICT & SESSIONS COURT-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** **ISSAC @ KISHORE, AGED 38 YEARS, S/0 NADARAJAN, PUTHENPURACKAL HOUSE CHAPPATHKARA, UPPUTHARAVILLAGE.** **BY ADVS.M/S. V.JOHN SEBASTIAN RALPH, K.J.JOSEPH(ERNAKULAM), V.JOHN THOMAS, P.V.DENCY & RALPH R.JOHN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, COCHIN 31** **SRI. SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2023, ALONG WITH CRL.APPEAL NO.773/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ALEXANDER THOMAS & SOPHY THOMAS, JJ. =================================** ## **Crl.A No.773 of 2019 &** ## **Crl.A No.1527 of 2018** [ _arising out of impugned judgment dated 22.10.2018 in S.C.No. 407/2007 on the file of the II[nd] Addl. Sessions Court, Thodupuzha_ ] **=================================** Dated this the 21[st] day of February, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The aforecaptioned criminal appeals preferred by the two accused persons arise out of the impugned judgment dated 22.10.2018 in S.C.No.407/2007 on the file of the II[nd] Addl. Sessions Court, Thodupuzha. 2. A brief overview of the case would be pertinent:- The prosecution case is that the deceased, Brijitha, was a widow, aged 63 years and her children were not residing with her and she was living in a house situated in her property of the extent of about 6 Acres or so. She belonged to a farming family. Earlier, A-1's father (Sri.Natarajan) was the domestic help in her house and he used to reside in the same house. It appears that since A-1's father had some quarrel and fight with a third party, PW-3 (elder son of the deceased) instructed that Natarajan need not stay in the house of Brijitha any longer and his employment, as a domestic help, was discontinued. Thereupon, A-1, who is Natarajan's son, was engaged as a full time Crl.A.Nos.1527/18 & 773/19 **==> picture [30 x 9] intentionally omitted <==** domestic help to look after the farming operations in the deceased's house and also to stay in her house, as she was residing alone. It has come out in evidence that A-1 used to reside in a separate room, which was part of the house, but the access from that room could only be through the front door of the house. 3. On the day of the incident, ie. on 06.02.2006, at midnight and in the early hours of 07.02.2006, the deceased's sister-in-law (deceased's husband's brother's wife, who is also the mother of PW-1), who was residing at a distance of 50 mtrs. from the house of the deceased, had heard loud cries from the deceased's house and on hearing so, she had awakened her son (PW-1) and he (PW-1) had immediately gone to the house of the deceased. PW-1 then heard a loud cry coming from the kitchen of the house and on recognizing the voice as that of A-1, PW-1 asked A-1 to open the door near the kitchen, wherein A-1 told him that five assailants had attacked the deceased and that his legs and hands were tied down by them and that he is kept in the kitchen and that the kitchen door was locked and that the front door was open and that PW-1 can come through the front door. Thereupon, PW-1 found that the front door was open and he entered the room and had seen the deceased lady lying down in an Crl.A.Nos.1527/18 & 773/19 - : 3 :- unconscious position. PW-1's effort to awaken Brijitha (the deceased), had not succeeded and then, he went to the kitchen and found A-1, whose legs and hands were tied with clothes. PW-1 then untied A-1 and thereupon, A-1 told him that five assailants had come to the house and two of them had placed a shawl on the face and nose of Brijitha and had tightened it. That, when A-1 tried to resist, three other assailants had tied his hands and legs and gagged his mouth (വവായയയും മമൂടടികക്കെടടിയ ശശേഷയും) and had put the television at a high volume and had thereafter, searched and rummaged the house. Since Brijitha was lying motionless, PW-1 got panicked and he cried aloud and his mother and grandmother, who were residing nearby, came to the scene of occurrence. Thereafter, PW-1 informed Brijitha's elder son (PW-3), who was residing 3 kms. away and he came to the scene and he, along with A-1, had taken Brijitha to a nearby hospital. PW-1 thereafter went to his house, as his mother and grandmother were alone. Later, PW-1 got telephonic information from the hospital that Brijitha was found to be dead even before reaching the hospital. Thereafter, he proceeded to the police station at Kattappana, for giving information to the police about the crime incident. Ext.P-1 Crl.A.Nos.1527/18 & 773/19 **==> picture [30 x 9] intentionally omitted <==** First Information Statement (FIS) of PW-1 has been recorded by PW-22 (Sub-Inspector of Police) on 07.02.2006 at 4 a.m. in the morning and thereupon, Ext.P-26 FIR in Crime No.49/2006 of Kattappana Police Station has thus been registered, which has disclosed offences punishable under Secs.396 of the IPC (dacoity with murder), against five identifiable persons. 4. The abovesaid factual aspects are disclosed in Ext.P-1 FIS. Ext.P-26 FIR has been forwarded to the Judicial First Class Magistrate's Court, Kattappana on the same day at 6 AM, which has reached that court on 07.02.2006 at 9 AM. After registration of Ext.P-26 FIR, the investigation has been conducted by PW-17 (Circle Inspector of Police). 5. P.W-1 (the abovesaid nephew of the deceased) has given evidence in tune with the version given in Ext.P-1 FI statement. P.W-1 has stated that, when he saw the deceased lady in the lying down position, she was not wearing gold ornaments which were usually worn by her. Further, he has stated that, when he had seen A-1 in a tied down position in the kitchen, A-1's legs were tied firmly and his hands were tied loosely, etc. 6. The case of the prosecution is that P.W-17 (IO) suspected Crl.A.Nos.1527/18 & 773/19 - : 5 :- the role of A-1 and he arrested A-1 at about 6.20 p.m. on the same day (7.2.2006) and on questioning, A-1 confessed that the act was committed by him along with A-2 and that A-2 had taken the cash and gold and silver ornaments to his house and that he pointed out A-2 and the house, where he is residing. Further that, P.W-17 along with A-1 had proceeded to the house of A-2 and, on the way, A-2 was seen walking along the road and he was apprehended and arrested. P.W-17 then reached the house of A-2 and based on the abovesaid disclosure, he could recover MO-1 to MO-3 gold ornaments and MO-5 cash. Further that, MO-6 shawl, used for smothering the victim, was pointed out by A-2 and hairs were also detected in the shawl, which was safely preserved using cellophane plaster. Recoveries of MOs-1 to MO-3 gold and silver ornaments, MO-5 cash, MO-6 shawl, etc. were thus effected, as per Ext.P-13 recovery mahazar in the presence of P.W-19, one of the witnesses who was present at the scene of recovery. 7. P.W-12 (Senior Lecturer & Assistant Police Surgeon, Medical College Hospital, Kottayam) conducted the post mortem and prepared Ext.P-7 post moterm certificate, which has noted 13 ante mortem injuries. He has Crl.A.Nos.1527/18 & 773/19 - : 6 :- also certified that the death of the deceased is due to smothering. P.W-8 has taken Ext.P-3 series of photographs of the body of the deceased. P.W-17 (IO) had taken P.W-13 (finger print expert) as well as P.W-7 (Police Photographer) to the scene of occurrence, while preparing Ext.P-5 scene mahazar. PW-13 (finger printer expert) collected chance finger prints from the scene of occurrence from the various objects mentioned in the mahazar. Sample finger prints of A-1 and A-2 were also collected and sent to the finger print bureau. The sample finger prints of the accused were compared with the chance finger prints recovered from the scene and Ext.P-8 report dated 23.2.2006 was submitted, recording that the finger prints of both the accused were included in the chance finger prints collected from the scene of occurrence. Pursuant to the final report/charge sheet filed in this case, the learned Addl. Sessions Court framed charge for offences punishable under Sec.302 and 394 of the I.P.C. Both the accused pleaded not guilty. The prosecution then examined 22 witnesses and marked 26 Exhibits and identified 38 Material Objects. 8. After closure of the prosecution evidence, the accused persons were questioned, as per Sec.313 of the Cr.P.C. and they denied incriminating circumstances against them. The specific case of Crl.A.Nos.1527/18 & 773/19 - : 7 :- A-1 is that he had not committed the offences and that, on the fateful night, he and the deceased lady were in the house and five assailants had trespassed into the house and they tied the hands and legs of A-1 and covered and smothered the face of Brijitha and removed her gold and silver ornaments and suffocated and also had taken cash from the house. 9. Further that, when A-1 cried out loud, PW-1 who is a neighbour, had reached there and untied A-1. Later, PW-1 returned to his house and informed PW-3 (son of the deceased), over phone, who reached there. Brijitha was later taken to the hospital, where it was revealed that she is no more. The Police had taken A-1 back to the house and directed him to show everything and thereafter, they had taken him to the Police Station and kept him in custody and was manhandled. It is the specific and asserted case of A-1 that five assailants had entered the house and committed the dastardly act and he is not involved at all in the above crime incident. 10. In his Sec.313 questioning process, the case of A-2 is that he was not involved in the crime incident and that the Deputy Superintendent of Police (Dy.SP), Crime Squad, had come to his house at about 6 AM in the morning on 07.02.2006 and had taken Crl.A.Nos.1527/18 & 773/19 **==> picture [30 x 9] intentionally omitted <==** him to the Police Station and manhandled him and then he was forced to touch several articles with his hands and that he was also shown as the accused in TV channels and his photographs were published in newspapers and that he was taken to the sub-jail on 08.02.2006, etc. 11. A-1 has not adduced any defence evidence. A-2 has examined DW-1. 12. After conclusion of the trial, the learned Sessions Judge has rendered judgment dated 11.07.2008 in the instant S.C.No.407/2007 and acquitted A-1, with the finding that, though evidence of PW-13 and Ext.P-8 report establishes that his finger prints were also among the chance finger prints collected from the scene of occurrence, the same was not taken as incriminating circumstance, since A-1 was residing in the house of the deceased as a full-time help and that mere presence of his finger prints cannot lead to his conviction and that there are no other incriminating circumstances to point to the culpability of A-1, etc. Further, the Sessions Court convicted A-2 by relying on the following incriminating circumstances: Crl.A.Nos.1527/18 & 773/19 - : 9 :- - (i) The presence of A-2 in the scene of occurrence has been confirmed by the fact that A-2's finger prints were found on the objects recovered from the scene of the crime, as evident by Ext.P-8 report of the finger print expert and the evidence given by PW-13 (finger print expert). - (ii) MO-1 to MO-3 gold and silver ornaments and MO-5 cash were recovered from the house of A-2 and the prosecution witnesses, who are the close relatives of the deceased, has identified that the said ornaments and cash, etc. belong to the deceased lady. Further that, these material objects were recovered under Ext.P-13 recovery mahazar and proved by the evidence of PW-17 (Investigating Officer), PW-19 (attesting witness) and PW-11 (goldsmith), etc. - (iii) MO-6 shawl, which contained grey hairs, was recovered from the house of A-2 and Ext.P-25 report of the Forensic Science Laboratory has proved that the said hair found on the shawl is similar to that of the specimen hair of the deceased lady, taken during the time of postmortem and further that, these materials have been recovered on the basis of the information furnished by A-2 at his house. - (iv) The evidence given by PW-4 has proved that the chilli powder contained in MO-4 chilli powder packet was purchased by A-2 from PW-4, who is a Provision Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** shopkeeper, on 05.02.2006, which is the day immediately prior to the crime incident. - (v) Further that, the prosecution has led evidence to show that chilli powder was found scattered in the scene of occurrence and an empty chilli powder packet, as per the abovesaid MO-4, was earlier recovered from the scene of occurrence. 13. The Trial Court, had then convicted A-2 by holding that these incriminating circumstances would prove beyond reasonable doubt that A-2 has committed the offence of robbery and murder of the deceased. 14. A-2 was sentenced to undergo life imprisonment with fine of Rs.15,000/- (Rupees Fifteen Thousand only), for the offence as per Sec.302 of the IPC and in default of payment of fine to undergo rigorous imprisonment for six months. He was also sentenced to undergo rigorous imprisonment for ten years and fine of Rs.5000/(Rupees Five Thousand only) for the offence as per Sec.394 of the IPC and in default of payment of fine, he was ordered to undergo RI for six months, etc. 15. Aggrieved by the afore judgment dated 11.07.2008 Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** rendered by the Sessions Court, A-2 had preferred Crl.Appeal No.1734/2009 before this Court, to challenge his conviction and sentence. The State had not preferred any appeal against the acquittal of A-1. But PW-3 (son of the deceased), as the de facto complainant, had preferred Crl.Revision Petition, as Crl.R.P No.3413/2008 before this Court, to challenge the acquittal of A-1. 16. A Division Bench of this Court later rendered a common judgment dated 25.07.2012, finally disposing of both Crl.A.No.1734/2009 & Crl.R.P No.3413/2008, in the case in _**Reuben** v._ _**State of Kerala**_ [2012 SCC online Ker. 17213], wherein it has held that the Sessions Court committed an illegality by not framing charge with the aid of Sec.34 of the IPC. It was found that Ext.P-8 finger print report, relied on by the court below to prove the presence of A-2 in the scene of occurrence, was not prepared by PW-13, but by one Sri.Rajendran, the Testor Inspector, who was not examined.Further, this Court held that Ext.P-8 does not show the reasons for arriving at the conclusion,but it is mentioned therein that a detailed expert opinion will be furnished, which was not produced. Hence, this Court, as per the afore judgment dated 25.07.2012, allowed both the Crl.Appeal and the Crl.Revision Petition, by setting Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** aside the acquittal of A-1 as well as the conviction of A-2 and remitted the case to the Sessions Court concerned, with the specific direction to frame proper charge and for fresh disposal and directed that the Testor Inspector, who issued Ext.P-8, shall be summoned and the expert opinion will be produced. Liberty was also accorded to both sides to recall any of the witnesses, who were already examined. 17. This Court noted that the specific case of the prosecution was that both the accused persons, in furtherance of a common intention, had committed the offences and that one of the specific issues framed by the Sessions Court, was as to whether the accused persons, in furtherance of their common intention and common object of committing robbery, did commit robbery and murder of the deceased lady, etc. But the Sessions Court had framed charge only for the offences as per Secs.302 & 394 of the IPC and had omitted to incorporate the aid of Sec.34 of the IPC and that, omission to include Sec.34 of the IPC in the charge, was a serious illegality. 18. This Court has also _inter alia_ ordered that, consequent to the remand, the Sessions Court should specifically consider as to whether A-2 alone, without the aid of A-1, could have committed the offences, especially when PW-1 saw him tied down, when he reached Crl.A.Nos.1527/18 & 773/19 - : 13 :- the house on hearing the cry of A-1 and he had informed PW-1 that the front door is not closed and further that, the fact that A-1 has not sustained any injuries is also a relevant fact to decide his culpability, with the aid of Sec.34 of the IPC, etc. Thus, on the above terms, this Court had remitted the matter to the Sessions Court concerned. 19. Aggrieved by the afore judgment dated 25.7.2012 rendered by this Court, which resulted in the setting aside of acquittal of A-1 and the remand, A-1 had preferred SLP(Criminal) No. 957/2012 to impugn the afore judgment of this Court. It appears that after grant of special leave, the above Appeal preferred by A-1 has been numbered as Crl. Appeal No. 165/2018 by the Apex Court. Later, the Apex Court has rendered judgment dated 23.1.2018 in the said Crl. Appeal No. 165/2018 in the case in _**Issac @ Kishore** v._ _**Ronald Cheriyan & Anr.** [reported as (2018) 2 SCC 278]._ After detailed consideration, the Apex Court upheld the judgment of this Court in Crl. Rev. Petition No. 13/2008, which led to the setting aside of the acquittal of A-1 and the remand of the case to the Sessions Court concerned. In pursuance thereof, the Sessions Court concerned had, subsequently, framed modified charge against the accused, alleging offences punishable under Secs.450, 392 & 302 read with Crl.A.Nos.1527/18 & 773/19 - : 14 :- Sec.34 of the IPC. Consequent to the remand, PW-2, PW-3, PW-7, PW-13 & PW-17 were recalled and examined in the Sessions Trial. So also, PW-23 (Tester Inspector, Finger Print Bureau) was examined as an additional witness. Exts.P-27 & P-27A series (finger prints and photographs) were marked through PW-13 (Finger Print expert). After closure of prosecution evidence, consequent to the remand, the accused persons were questioned under Sec.313(1)(b) of the Cr.P.C. and the incriminating circumstances were denied by them. The Sessions Court did not deem it fit and proper to record acquittal of the accused under Sec.232 of the Cr.P.C and the accused persons were called upon to tender defence evidence which they might have in support thereof. 20. From the side of the defence, DW-1 was recalled and re-examined. DW-2 & DW-3 were examined as additional witnesses and Ext.D-1 was marked. After conclusion of trial, consequent to the remand, the Sessions Court concerned has rendered the present impugned judgment dated 22.10.2018 in S.C.No. 407/2007, wherein both the accused persons were convicted for the offences punishable under Secs. 302, 392, 450 read with 34 of the IPC and they have been ordered to undergo the following sentences: ## Crl.A.Nos.1527/18 & 773/19 - : 15 :- - i. Both A-1 & A-2 were sentenced to undergo life imprisonment and to pay fine of Rs.25,000/- each for the offences punishable under Sec.302 read with 34 of the IPC. - ii. Both A-1 & A-2 were sentenced to undergo RI for 7 years and to pay fine of Rs.10,000/- each for the offences punishable under Sec.392 read with 34 of the IPC. - iii. Both A-1 & A-2 were sentenced to undergo RI for 7 years and to pay fine of Rs.10,000/- each for the offences punishable under Sec.450 read with 34 of the IPC. - iv. The accused persons were also granted the benefit of set off in terms of Sec.428 of the Cr.P.C. - v. The entire fine amount, if realized, was directed to be paid to the LRs of the deceased under Sec.357 of the Cr.P.C. 21. Being aggrieved by the abovesaid judgment of conviction of sentence rendered by the Sessions Court on 22.10.2018 in S. C. No. 407/2007, A-1 has preferred the instant Crl. Appeal No. 1527/2018 and A-2 has preferred Crl. Appeal No. 773/2019 before this Court. 22. For the purpose of convenience, we would refer to the sole appellant in Crl. Appeal No.1527/2018, who is A-1, as the first appellant/A-1. So also, the sole appellant in Crl. Appeal Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** No.773/ 2019, preferred by A-2, will be referred for convenience as the second appellant/A-2. 23. We have heard Sri. John S. Ralph, learned Advocate, instructed and assisted by Sri.Ralph R. John, learned counsel appearing for the first appellant/A-1, Sri.M.P.Madhavankutty, learned Advocate, instructed and assisted by Ms. Remya M. Menon, learned counsel appearing for the second appellant/A-2 and Sri. Saigi Jacob Palatty, learned Prosecutor for the respondent State of Kerala. 24. _In extenso,_ we have considered the various submissions made by the parties concerned. Instead of reiterating each of the respective rival contentions, we proceed to deal with the main contentions raised by them. ## **I. Veracity of the registration of the FIR and also as to whether there is any delay in the lodging of the FIS and registration of the FIR, etc.** : 25. One of the contentions raised by the appellants is that Ext.P-26 FIR could not have been registered at 4 A.M. on 7.2.2006 and that, the same may have been registered only much later and Crl.A.Nos.1527/18 & 773/19 - : 17 :- that, this is manifest from Column No.3(c) of Ext.P-26 FIR, which deals with the General Diary entry number and the time of information conveyed etc. and that therein there are overwritings and the figure '4.00 Hours' has been subsequently incorporated and it has substituted the previous figure, which could have been '7.00 Hours' or so. The appellants would contend that the specific case of PW-1 (first informant) is that, after he had reached the scene of occurrence after 12 midnight of 6.2.2006 and in the early wee hours of 7.2.2006, he had informed PW-3 (son of the deceased) and PW-3 and A-1 had taken the deceased to the hospital, etc. At that time, PW-1 had not taken the deceased to the hospital and he had gone to his nearby residence, which is about 50 meters away, as his mother and grandmother were living alone there. Further, the case of the prosecution and that of PW-1 is that, after getting information about the death of the victim from the hospital, he had reached the Police Station, which is 10 kms. away from his residence, before 4 A.M. on the morning of 7.2.2006, appears to be unbelievable. It is contended that, even according to PW-1, he had heard from A-1 that 5 assailants had committed robbery and murder of the deceased and therefore, a person like PW-1, who had not even bothered to take the deceased Crl.A.Nos.1527/18 & 773/19 - : 18 :- lady to the hospital, would not have gathered the courage to reach the Police Station well before 4 A.M. on that day, so as to lodge the FIS, etc. 26. Hence, it is urged that the actual lodging of the FIS and the registration of the FIR has been ante timed to make it appear as if the FIR has been registered on 6.2.2006 at 4 AM in the morning, whereas, actually, it could has been done belatedly. The abovesaid pleas of the appellant have been strongly opposed by the learned Prosecutor. After hearing both sides, it is to be noted that it is the specific case of P.W-1 that he had reached the scene of occurrence on hearing the loud cries of A-1 at around midnight of 6.2.2006 or the early wee hours of 7.2.2006. Thereafter, the incidents and the crime scene were intimated to his mother and grandmother and also to P.W-3 (son of the deceased). The evidence of P.W-1 and P.W-3 would show that P.W-3 had also reached the scene of occurrence immediately thereafter and it was he and A-1 who had taken the deceased lady to the hospital, where she was declared already dead. Due to the lack of factual details given in the evidence, we have to infer that P.W-1 and A-1 would have taken Brijitha to the hospital at around 1 AM or thereafter and they would have reached the hospital Crl.A.Nos.1527/18 & 773/19 - : 19 :- after half an hour or so, where she was declared to be already dead. Thereafter, P.W-3 has stated that he had gone back to his residence and later, he got telephonic information from the hospital that the lady was declared as dead and that thereafter, he had gone to the Police Station to lodge the FIS at around 4 AM in the morning of 7.2.2006. In the light of these factual aspects on record, there is nothing to disbelieve the version of P.W-3 that he, on coming to know of the death of the lady, had reached the Police Station, which is 10 kms. away, by around 4 AM on 7.2.2006. Moreover, the abovesaid evidence of P.W-1, P.W-3 and P.W-17 (IO) have not been challenged by the defence. True that there appears to be an overwriting in filling up of the blank columns in Column No.3(c), wherein the time is shown as 4 hours. However, while examining column No.3(b), which also deals with the time of the information, it is clearly shown therein as 7.2.2006 at 04.00 hours. The said handwritten entry is without any overwritings. The learned Prosecutor had submitted that, while filling up column 3(c), instead of initially writing the figure “4”, the figure “7” could have been possibly written, thinking as if it is the date of the incident, which is 7.2.2006 and on realizing the mistake, the same was corrected by an overwriting and shown as 04 Hours. We are Crl.A.Nos.1527/18 & 773/19 - : 20 :- inclined to accept the abovesaid explanation of the prosecution as a plausible one. In the absence of any challenge to the evidence of the prosecution witnesses, as above, we are constrained to repel the abovesaid contention of the defence. Further, we note that the death would have been declared by the hospital between 1 AM and 2 AM on 7.2.2006 and would have been known to PW-1 between 1.30 AM to 2 AM thereafter and FIS could have been lodged at 4 AM on 7.2.2006. Further, Ext.P-26 FIR has been registered on 7.2.2006 at 4 AM and the same has been dispatched to the court on 7.2.2006 at 6 AM and the same is seen to have been received by the Judicial Magistrate's Court concerned on 7.2.2006 morning by 9 AM. Hence, we are of the firm view that there has been no delay at all in the lodging of the FIS and the registration of the FIR and the gist of the first information that could be gathered by PW-1, on the information given to him by A-1, has been fully incorporated in Ext.P-1 FIS. So also, column No.12 of Ext.P-26 FIR contains the gist of the incidents narrated in Ext.P-1 FIS. So, we are of the view that FIS and FIR have been lodged and registered without any delay in the facts and circumstances of the case and there could not have been any possibility of any manipulation of the case of the prosecution, as the Crl.A.Nos.1527/18 & 773/19 - : 21 :- first information gathered by PW-1 as conveyed to him by A-1, who was in the house of the deceased has been fully narrated therein. 27. The afore FIR has been registered against five unnamed assailants for offences punishable under Sec.396 of the I.P.C. (dacoity with murder). Moreover, the main contents in the Ext.P-1 FIS, regarding the narration of the incidents relating to the occurrence of the crime, are the information secured by P.W-1 solely and exclusively from A-1, who was in the house of the deceased at the time of the incident. The evidence tendered by P.W-1, regarding the said aspects, are also on the same lines as in Ext.P-1. In cross examination, the accused has not, in any manner, challenged the version of P.W-1 regarding the information conveyed to him by A-1. On the other hand, the specific case of A-1 in Sec.313 Cr.P.C. stage is fully in consonance with the said version given by P.W-1 in Ext.P-1 as well as in his evidence regarding the information conveyed by A-1 in that regard. Suffice to say, it cannot be said that there has been any manipulation in the FIS by P.W-1 or by the investigating agency. So also, taking note of the fact that the death, on account of the gruesome murder, would have come to the knowledge of P.W-1 by way of hospital information after 2 AM or so on the fateful day and as the Police Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** Station is about 10 kms. away from his residence, it is only to be held that P.W-1 has taken all diligent steps for ensuring the lodging of the FIS and registration of the FIR as expeditiously as possible, inasmuch as the same has been effectuated on 7.2.2006 at 4 AM in the morning. 28. Further, the very contention of the accused that the FIR process could have been actually set in motion only much belatedly on that day at 7 AM or thereafter, would result in serious contradictions of certain other contentions of the accused, impugning the veracity of the prosecution case, regarding their arrest, which would be dealt with separately hereinafter. ## **II. Veracity of the prosecution case regarding the arrest - - of A 1 on 7.2.2006 at 6.20 PM and the arrest of A 2 on that day at 8 PM and other related aspects.** 29. The contention raised by the defence is that the evidence of PW-11 and PW-1 would show that A-1 was taken to custody by the police on 7.2.2006 at around 6.30 in the morning and later, A-2 was arrested on the same day at 8 in the morning. Thereafter, their arrests were deliberately not formally recorded, in order to have illegal custody of the accused persons and that they were tortured by the Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** Police and false confession statements were extracted from them and further that, Exts.P-16 & P-17 arrest memos were falsely created to make it appear as if A-1 was arrested on that day only at 6.20 PM in the evening and that, A-2 was arrested only at 8 PM on that day and this was done not only to extract false confessions from the accused by using torture etc. but also to ensure that false evidence, like gold ornaments, cash, shawl with hair etc., were planted in the residence of A-2 to thus create fabricated evidence for recovery, to show the culpability of the innocent accused. 30. The abovesaid submissions of the defence have been strongly opposed by the learned Prosecutor. 31. The evidences on record would show that the fact relating to the attack on the victim came to the knowledge of PW-1 after 12 midnight on 06.02.2006 and in the early wee hours of 7.2.2006 and thereafter, the fact regarding the death of the victim came to PW-1's knowledge, upon which Ext.P-26 FIR has been registered on 7.2.2006 at 4 AM. The FIR has been duly despatched to the jurisdictional Magistrate Court on the same day at 6 A.M., which has been received by the said Court on the same day morning by around 9 AM or so. Thereafter, the inquest process, which led to Ext.P-12 Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** inquest report dated 7.2.2006, has been conducted between 9.30 AM and 11.30 AM The process of preparation of Ext.P-5 scene mahazar was on the same day, at around 11.45 A.M. by PW-17 (Inspector of Police). The Postmortem process, which led to Ext.P-7 Postmortem certificate, has taken place between 1.55 PM to 2.55 PM on that day. PW-17 (I.O.) has given evidence that A-1 & A-2 have been arrested on the same day, as per Exts.P-16 & P-17 arrest memos, at 6.20 PM and 8 PM respectively. The attesting witness in Exts.P-16 & P-17 is one Natarajan, who is none other than the father of A-1. If the information recorded in Exts.P-16 & P-17 arrest memos are false and fabricated, no prudent person, who is behind such fabrication, would think of choosing A-1's father as the attesting witness to both Exts.P-16 & P-17 arrest memos. It is a matter of common knowledge that, in the process of investigation by the Police, especially in relation to serious offences like murder, it is not at all difficult for the Police to secure the presence of persons as witnesses to documents like arrest memo. If the accused had any such case, the easiest way was to cite Sri. Natarajan, father of A-1, as a defence witness, so that his version could have been examined before the Court and the same could have been subjected to cross examination Crl.A.Nos.1527/18 & 773/19 - : 25 :- by the prosecution. For reasons not known to us, the accused have not chosen to do so. Of course, there is no compulsion for the accused to adduce any defence evidence. What we are saying is that, if such fabricated arrests were contemplated, then no intelligent police officer would think of choosing the father of the accused as a witness to the arrest memo. 32. A contention has been raised by the defence that the distance between the place of arrest of A-1 and the place of arrest of A-2 is about 19 kms or so and therefore, it is quite impossible that Sri.Natarajan would have been the witness for both the arrests. 33. The learned Prosecutor would submit that the investigating agency would have chosen A-1's father to be the witness to the arrest memos, as he would have been present when A-1 was taken to custody and the Police would have done it only out of fairness and that the attestation in the second arrest memo also by the same witness cannot lead to any suspicious circumstances. 34. In this juncture, we have to note that no challenge or suggestion has been made by the defence in cross examination of the prosecution witnesses, more particularly PW-17 (I.O.) that the arrest, referred to in Exts.P-16 & P-17 arrest memos, have never been Crl.A.Nos.1527/18 & 773/19 - : 26 :- witnessed by Sri.Natarajan, etc. If such a challenge had been made in the evidence, then the Investigating Officer would have brought out his version in the matter to explain as to why the said suggestion/allegation of the defence is factually wrong. That has not been done. The cardinal aspect of the matter is that the defence has not chosen to make any such effort and therefore, raising pleas of this nature would amount to forcing this Court to examine hypothetical scenarios. Further, the evidence of PW-17 (I.O) would candidly disclose that A-1 was under Police surveillance from the morning of 07.02.2006. 35. The learned Advocates appearing for the defence has strongly contended that PW-11 in his evidence has not, in any manner, stated about the presence of Sri. Natarajan (attesting witness of Exts.P-16 & P-17 arrest memos) in the jeep when the police party and others had travelled from the place of arrest of A-1 to the place where A-2 was subsequently arrested, etc. Further, it is pointed out that the place of arrest of A-2 is said to be in ‘Porikanni’, which is 19 kms away from Kattapana, the place of arrest of A-1. If A-1 had in fact been arrested at 6.20 PM and A-2 had been subsequently arrested at 8 PM, then it would have been virtually impossible for Crl.A.Nos.1527/18 & 773/19 - : 27 :- Sri.Natarajan to be present in both the places to have witnessed not only Ext.P-16 arrest memo of A-1 but also Ext.P-17 arrest memo of A-2, etc. We have already held that the defence has not raised any suggestion during the Cross Examination of PW-17 (I.O.) while he had marked documents regarding the arrest and other related aspects of the accused that those documents, showing that Sri. Natarajan (father of A-1) had in fact attested those documents, are false and fabricated, etc. If such a challenge had been made, then PW-17 (I.O.) would have been able to give his explanation and thereafter, the Court would have been able to evaluate the rival pleas based on appreciation of evidence. That apart, it is to be noted that, apart from Exts.P-16 & P-17 arrest memos, the prosecution has also produced and proved Exts.P-18 & P-19, which are the inspection memos of A-1 & A-2 after their respective arrests. Therein also, the time of arrest of A-1 & A-2 are shown as 6.20 PM and 8 PM on that day, which is only in consonance with the version given in Exts.P-16 & P-17 arrest memos. Further, Ext.P-20 is the arrest notice in respect of the arrest of both A-1 & A-2 and the arrest notice is given to the aforesaid Sri.Natarajan, by stating that he is the father of A-1 as well as the neighbor of A-2. In Ext.P-16 arrest memo, it is shown that Crl.A.Nos.1527/18 & 773/19 - : 28 :- Sri.Natarajan is the father of A-1 and in Ext.P-17 arrest memo, it is shown that Sri.Natarajan is the friend of A-2. Moreover, it is seen that the address of A-1 and his father - Sri.Natarajan is one and the same and it is at Chapath and also, the address of A-2 is at Chapath, as can be seen from the details of those addresses given in the court records and Exts.P-16 to P-20 documents. 36. The learned Prosecutor has pointed out that the place of arrest of A-1 & A-2 as per Exts.P-16 & P-17 are shown as Kattapana & Porikanni, Chapath respectively and that the distance between the two places may be around 19 Kms. Further that, even according to the evidence of PW-11, the arrest of A-2 was at Porikanni Chapath, which is very near to Kattappana. That, there is no difficulty for any person to travel about 19 Kms within 1 hour or so. Further, in Ext.P-20 it is clearly shown that Sri.Natarajan is the neighbor of A-2. Further, Exts.P-16, P-17 & P-20 would show that the residence of Sri.Natarajan (father of A-1) is at Chapath. Indisputably, the residence of A-2 is also at Chapath. So, there is nothing unnatural of the presence of Sri.Natarajan at Chappath at around 8 PM during the arrest of A-2 and he could easily travel from Kattapana, where he was the attesting witness of Ext.P-16 arrest memo regarding the arrest of Crl.A.Nos.1527/18 & 773/19 - : 29 :- A-1 at 6.20 PM on that day. Being a neighbor of A-2 at Chappath, on hearing the police jeep coming and arresting A-2 at Chappath and taking him etc., the neighbouring people in the locality, including Sri.Natarajan, would have come to know it and he would have reached there knowing fully well that his son has already been arrested. In these circumstances, it is pointed out that the presence of Sri.Natarajan at Chapath at 8 PM is quite natural and there is no suspicious circumstances to disbelieve the presence of Sri.Natarajan at the time of arrest of A-2 at Chappath at that time. 37. Further, the learned Prosecutor would point out that if these aspects had been put to PW-17, by the defence during Cross Examination, then he would have been in a position to give clear answers to the same and that, after having not opted to do so, the defence cannot be permitted to blandly challenge the presence of Sri.Natarajan as an attesting witnesses in these documents. After hearing both sides, we are of the view that the abovesaid submissions of the learned Prosecutor will have to be countenanced and the same appears to be a reasonably plausible explanation. 38. The learned Prosecutor has pointed out that the very Crl.A.Nos.1527/18 & 773/19 - : 30 :- version given by A-1 to PW-1, which led to Ext.P-1 FIS, would create serious doubt and suspicions about the truthfulness and veracity of the version conveyed by A-1 and that therefore, in cases of this nature, the investigating agency, as part of their statutory obligation, has to take all alert and vigilant steps to ensure that the suspects are kept in surveillance in order to take further steps for further concrete action in the investigation process. Merely because A-1 would have been under surveillance by the Police, cannot pursuade a Court of law to infer that the accused would have been taken to custody without recording arrest and that, he would have been subjected to torture for extracting false evidence, etc. 39. Further, we note that the very candid disclosure made by the Investigating Officer, that A-1 was under surveillance, due to serious suspicion that arose out of his conduct, would show the bonafides in telling the actual state of affairs to the Court. The flexibility and the free play in the investigating process will have to be duly reckoned, as the investigation is within the sole domain of the police authorities concerned. So, merely on account of Police surveillance, if the Court were to infer about torture based on actual Crl.A.Nos.1527/18 & 773/19 - : 31 :- police custody without arrest, etc., then it would not be conducive to a proper harmonized approach in understanding the investigation process. 40. Further, we note that PW-11 (goldsmith) was cited only to prove Ext.P-6 gold appraisal certificate issued by him. It is common ground that though PW-6 gold appraisal certificate has been produced along with the final report and PW-11 has also been cited as a charge witness, the Police has not taken any Sec.161 Cr.P.C. Statement from him. 41. The learned Prosecutor has submitted that this is so, as the sole aspect on which PW-11 had to give evidence to the prosecution was regarding the issuance of Ext.P-6 gold appraisal certificate. In the Chief Examination, PW-11 has stated about the appraisal of MO1 to MO3 gold and silver ornaments and its weight and about the issuance of Ext.P-6 gold appraisal certificate. In his cross, he would state that PW-17 (I.O.) and two to three Police officials had come to his residence on 7.2.2006 at around 6.30 in the morning and that, he had gone with the police in the police jeep and in the police jeep, A-1 was there and later, when the police jeep had reached a place called 'Chapath', they had gone to the residence of Crl.A.Nos.1527/18 & 773/19 - : 32 :- A-2, etc. It is on this basis that the defence would contend that, as a matter of fact, A-1 has been taken to police custody at 6.30 in the morning and that, A-2 has thus been taken to custody at 8 AM on the same day and that, these arrests were suppressed and false evidences have been created for issuing Exts.P-16 & P-17 arrest memos to look as if the arrests were done only subsequently at 6.20 PM and 8 PM respectively on that day. 42. The learned Prosecutor has pointed out that the description of events by PW-11, in his Cross Examination, appears to be broadly correct and inadvertently, he would have stated that he had gone in the police jeep at 6.30 in the morning instead of stating that it is 6.30 in the evening. 43. The relevant part of evidence of PW-11 in Cross is as follows: "കവാലതത്ത് 6.30 കഴടിഞ്ഞ സമയതവാണത്ത് ശപവായതത്ത്......... " Except the above, he does not say about the timing of the subsequent arrest of A-2, as to whether it was 8 in the morning or 8 in the night. Hence, the abovesaid explanation of the prosecution appears to be reasonably plausible. True, as contended by the defence, the prosecution has not touched on this point by effecting re-examination Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** of PW-1. Further, the defence has also contended that the prosecution cannot be permitted to raise this plea, as they have not declared PW-11 as hostile. 44. In that regard, it is to be noted that the purpose for which PW-11 was cited as a prosecution witness was only to give evidence regarding the issuance of Ext.P-6 gold appraisal certificate and nothing else. It appears that not even Sec.161 Cr.P.C. Statement was recorded from him. PW-11 has fully stated the factual details regarding the issuance of Ext.P-6 gold appraisal certificate in tune with the case of the prosecution. The other evidentiary aspects, regarding the arrest of A-1 & A-2, etc., stated by him in cross examination are not matters on which he was called upon to give evidence. In such a scenario, merely because the prosecution has not declared him hostile will not preclude this Court from independently evaluating his evidence. Further, even in the Cross, the specific suggestion of the accused is that PW-11 has not even gone to the residence of A-2. Thus, a specific challenge has been made by the accused that the version of PW-11, that he has, in fact, witnessed the arrest of A-2, is false. Further, it is also suggested by the defence in Cross that PW-11 is a stock witness of the Police. So, it can be seen Crl.A.Nos.1527/18 & 773/19 - : 34 :- that the very case of the defence is that PW-11 is not a believable and trustworthy witness and that he has not even witnessed the arrest of A-2. That being so, the abovesaid pleas of the defence appears to be not tenable, so as to persuade this Court to accept that A-1 & A-2 were actually taken to custody much earlier and that, their subsequent arrest, as shown in Exts.P-16 & P-17, are false and fabricated, etc. In the Cross of A-2, PW-11 has stated that he had reached the residence of A-2 at 8'O clock. But, he does not say whether it is 8'O clock in the morning or in the evening/night. So also, the specific challenge made in the Cross of PW-11 by A-2 is that PW-11 is giving false evidence in favour of the Police. 45. Further, the defence would also place reliance on the evidence of DW-1, who is the witness cited by A-2. DW-1 would state that he is a neighbour of A-2 and that, the incident in question is said to have happened on 7.2.2006 and he has given evidence before the Court on 10.6.2008. 46. More crucially, we note that PW-17, who is an officer of the rank of Inspector of Police, has given evidence regarding the arrest of A-1 & A-2 in terms of Exts.P-16 & P-17 and that, their arrests were effected on 7.2.2006 at 6.20 PM and 8 PM respectively, etc. Crl.A.Nos.1527/18 & 773/19 - : 35 :- 47. DW-1 has stated that some Policemen had come to the residence of A-2 on 07.02.2006 at 6 AM in the morning and had taken him away in their bike, etc. In that regard, it is to be noted that the defence has taken a highly varying stand on the factual issue before us. On the one hand, they would say, placing reliance on the evidence of PW-11, that A-1 & A-2 were arrested by PW-17 on that day at 6.30 AM and 8 AM in the morning. In Sec.313 questioning process, the accused has taken the stand that the arrest was made by a Dy. Superintendent of Police, Crime Squad at 6 AM in the morning on that day. Nowhere in the evidence has it come out, even remotely, that a higher police officer of the rank of Dy. Superintendent of Police of the Crime Squad was, in any manner, involved in this case. We are told that, going by the norms issued by the Police Department, an offence in the nature of murder, as per Sec.302 of the IPC, is to be investigated by an Officer of the rank of Inspector of Police and not by an inferior officer. In this case, it is common ground that the investigation has been done by PW-17, who is an officer of the rank of Inspector of Police. It is not known as to on what basis the defence would contend that a higher officer of the rank of Dy.Superintendent of Police and that too of a specialised wing, like the Crime Squad, was Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** involved in this case, except a bald allegation in that regard. The case built up by the defence on the basis of evidence of PW-1 is that A-2 was taken into custody by the Police at 6 AM in the morning. In the light of these aspects, we are not in a position to accept the evidence of DW-1, regarding the arrest of A-2. Further, we also note that DW-2 has clearly stated that he had seen the news of the arrest of the accused persons in the local television channel on that day at around 7.30 PM in the night. Further, the defence has put a specific suggestion to PW-17 (I.O.) during his Cross Examination that the news regarding the arrest of accused persons in this case was conveyed through local television channels at 7.30 P.M. on that day. This is also borne out from the evidence given by PW-1 mentioned supra. These aspects would also probabilize the case of the prosecution, that the arrest of A-1 & A-2 have been effected not in the morning but only in the evening of that day. 48. The learned Public Prosecutor would point out that even the abovesaid factual aspect projected by the defence, would highly probabilise the case of the prosecution and that too built up on the basis of statutory and official records that, the arrest was made only subsequently. Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** 49. In the light of these aspects, we are not prepared to countenance the plea of the defence that the arrest of the accused persons, as recorded in Exts.P-16 & P-17, are false and fabricated and their contentions in that regard stands repelled. 50. Further, the defence has contended that the Police would have deliberately created records to show the belated arrest of the accused and has suppressed the actual earlier arrest, so that they could obtain hairs of the deceased, which they could get only after the conduct of postmortem and that, such hairs would have been falsely planted in MO-6 shawl, etc. 51. The learned Prosecutor would strongly deny these allegations and would point out that the Court may not take any presumption that the Police is bend upon creating false evidence in a case of this nature and that the Police have diligently and very efficiently conducted the investigation in this case. Further that, the inquest process and the postmortem process will be conducted only much after the reporting of the death and hence, the taking of nail clippings, hairs, swabs, etc., from the body of the deceased, can normally be effected only after the postmortem process is over. Further, ordinarily, in a vast majority of cases, the arrest could be Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** effected only much later. Further that, if the abovesaid contention of the defence is accepted, it will lead to the situation that the Court may have to presume that since hairs or other body specimens have been obtained by the Police, after the postmortem process is over, they would have planted such objects to frame false evidence, etc., and such an inference cannot be legally countenanced. 52. After hearing both sides, we are firmly of the view that the abovesaid submission of the prosecution is quite fair and reasonable. By the very nature of the course of investigation, inquest, postmortem, etc., can be conducted only after the reporting of the death of the victim. Therefore, it goes without saying that collection of the requisite specimens from the body of the deceased, like nail clippings, hair, swabs, etc., can be done only after the postmortem is over. Merely because the arrest is effected later and if specimens like hairs, nail clippings are obtained, the Court cannot presume that the Police would have falsely planted the specimens collected from the body of the deceased,etc. Further, the learned Prosecutor would point out that if a devious Police Officer wants to create such false evidence, then one need not wait until the collection of the specimens after the postmortem process, as, ordinarily, the body would be kept in the Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** mortuary, which would be amenable to the control of the Police and they can easily take such hair samples from the body, even before the conduct of the inquest. It is to be noted that merely because of such possibilities, the Court cannot presume that the Police will not carry out their official functions and duties in a fair and proper manner and that they would adopt devious methods to create false evidence. In the light of the above aspects, we are constrained to reject the abovesaid contentions of the defence. 53. We have already accepted the prosecution case that arrest of A1 & A2 was effected on 07.02.2006 at 6.20 PM & 8.00 PM, respectively. 54. As borne out from the evidence of PW-17 (IO), A-1 had given a confession statement, the relevant part of which has been marked as Ext.P13(a):- "എകന്നെ കൂടടികക്കെവാണയ ശപവായവാൽ റമൂബകനെയയയും അവനെത്ത്കറ വവീട കവാണടിചയ തരവായും" The content of Ext.P13(a) is that A1 has stated that if the Police takes him, he will point out Ruben (A2) and the house where he is residing. Based on this statement, the police and A-1 had gone to the residence of A-2 and on the way, they had seen A-2, from where A-2 was taken into custody. A-2 has given Crl.A.Nos.1527/18 & 773/19 - : 40 :- a confession statement, the relevant part of which is marked as Ext.P13(b), which reads as follows:- "അമ്മചടിയയകട വവീടടിൽ നെടിന്നെത്ത് എടയത സസ്വർണവ കവാശയും വവീടടിൽ കവചടിടയണത്ത്. എകന്നെ കകവാണത്ത് ശപവായവാൽ കവാണടിചയ തരവായും." 55. The contents of Ext.P-13(b) is that the gold ornaments and cash taken by him from the residence of the deceased lady has been kept by him in his residence and that if the police takes him, he can show that to them. Of course, going by the well accepted legal principles regarding the applicability of Sec.27 of the Indian Evidence Act, the inculpatory words in Ext.P-13(b) to the effect that "അമ്മചടിയയകട വവീടടിൽ നെടിന്നെത്ത് എടയത" has to be eschewed out {See paras 2o to 22 of _**Venkatesh @ Chandra & Anr.** v._ _**State of Karnataka**_ [2022 SCC OnLine SC 765] }. Based on this, A-2 had taken the investigating agency to his residence and had shown where the gold ornaments and cash were concealed and the said objects (MO-1 Gold Ring, MO-2 Gold earrings, MO-3 Silver base chain, hereinafter referred to short as “MO-1 to MO-3 ornaments”) were recovered, as mentioned in Ext.P-13 recovery mahazar dated 07.02.2006. 56. Ext.P-13 recovery mahazar dated 07.02.2006 has been Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** prepared at 8.50 PM. The recovery of MO-1 to MO-3 & MO-5, in terms of Ext.P-13, has been attested by PW-19. P.W-17 and P.W-19 have given evidence regarding the aforesaid recovery of MO-1 to MO-3 ornaments and MO-5 cash from the residence of A-2, as pointed out by him. The defence has taken a contention that Ext.P-13(a) and Ext.P-13(b) are not admissible in evidence and further that the recovery made in pursuance of Ext.P-13(a) and Ext.P-13(b), are not legally acceptable, etc. The specific contention of A-1 is that Ext.P-13(a) cannot be said to be an evidence within the purview Sec.27 of the Indian Evidence Act and it is hit by Sec.25 of the Indian Evidence Act. It is contended by A-2 that Ext.P-13 ought not to have been marked in evidence by the court, which is a document which contains confession statements of both the accused. Further that, though a recovery mahazar, as in Ext.P-13, containing a Sec.27 Evidence Act disclosure statement of the accused may be marked in evidence, when it contains the confession statement of an accused, it is squarely hit by the bar under Sec.25 of the Indian Evidence Act, etc. The learned Prosecutor would strongly contend that Ext.P-13 (a) and Ext.P-13(b), after eschewing out the inculpatory part, if any, are indeed admissible in evidence and if recovery is made, Crl.A.Nos.1527/18 & 773/19 - : 42 :- in pursuance of the same, the same is admissible in terms of Sec.27 of the Evidence Act, which is a well accepted proviso or exemption to the bar otherwise contained in provisions as in Secs.25 & 26 of the Indian Evidence Act. In that regard, it may be pertinent to refer to the dictum laid down in para No.10 of the Privy Council in the celebrated decision in the case in _**Pulukuri Kottaya & Ors.** v._ _**King-Emperor**_ [AIR 1947 PC 67], wherein it has been held that, if the effect of Sec.27 in a case, wherein information given by the person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced by him were stolen in a dacoity, would all be admissible, etc., then, little substance would remain in the ban imposed by the two preceding sections, viz., Sec.25 and 26, on confessions made to the police, or by persons in police custody. It was held therein that the ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess, by the exercise of undue pressure. It was further held that, if all that is required to lift the ban is the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers Crl.A.Nos.1527/18 & 773/19 - : 43 :- of the police will prove equal to the occasion, and that, in practice, the ban will lose its effect. It was thus held that, on normal principles of construction, the proviso to Sec.26, added by Sec.27, should not be held to nullify the substance of the Section and it is fallacious to treat the " _fact discovered_ " within the section as equivalent to the object produced. It was further held that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. It was further held therein that information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. That information supplied by a person in custody that " _I will produce a knife concealed in the roof of my house_ " does not lead to the discovery of a knife; knives were discovered many years ago. What is involved is that, it leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added " _with which I stabbed A_ ", these words are inadmissible, since they do not relate to the discovery of the knife in the house of the informant. Crl.A.Nos.1527/18 & 773/19 - : 44 :- 57. Further, the following case laws would also be relevant in the facts and circumstances of this case. In the cases in _**Jaffar Hussain Dastagir** v._ _**State of Maharashtra**_ [(1969) 2 SCC 872] a Three-Judge Bench of the Apex Court dealt with a case of the scope of Sec.27 _vis-a-vis_ the statement of the accused to the Police officer and its admissibility and about the facts so discovered, etc. Therein, the appellant and two others were prosecuted under Sec.379 read with Sec.34 of the I.P.C. for committing theft of diamonds from the defacto complainant in a train, in furtherance of their common intention. As against the appellant, the prosecution relied on the evidence furnished by the statement said to have been made by the appellant to the Police, in consequence of which he is said to have led the Police party to the Bombay central railway waiting hall and the discovery of the diamonds from A-3. The portion of the said statement of the appellant reads as follows: _“I will point out one Gaddi alias Ramsingh of Delhi at Bombay Central Railway station at III Class Waiting Hall to whom I have given a packet containing diamonds of different sizes more than 200 in number”_ . Therein, the trial court acquitted A-2 and convicted the appellant (A-1) & (A-3). The Bombay High Court altered the conviction of the appellant (A-1) to one under Sec.411 of the I.P.C. In appeal before the Crl.A.Nos.1527/18 & 773/19 - : 45 :- Apex Court, it was contended on behalf of the appellant that there was no discovery of any fact made, as a result of the statement, to render it admissible in evidence against him under Sec.27 of the Indian Evidence Act. The Apex Court has held, in paras 4, 5 & 7, etc., thereof, that in order that Sec.27 may apply, the prosecution must establish that the information given by the appellant accused led to the discovery of some fact deposed by him. That the discovery must be of some fact which the Police had not previously learnt from other sources and that the knowledge of the fact was first derived from the information given by the accused. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact, which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the Police will not apply if all the above conditions are fulfilled. If an accused charged with a theft of articles or receiving stolen articles, within the meaning of Sec.411 I.P.C., states to the police, ' _I will show you the articles at the place where I have kept them_ ' and the articles Crl.A.Nos.1527/18 & 773/19 - : 46 :- are actually found there, there can be no doubt that the information given by him led to the discovery of the fact i.e., keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle, there is no difference between the above statement and that made by the appellant in this case, which, in effect, is that ' _I will show you the person to whom I have given the diamonds exceeding 200 in number_ ". It was held therein that the only difference between the two statements is that a " _named person_ " is substituted for ' _the place_ ' where the article is kept. In neither case are the articles or the diamonds the fact discovered. There can be no doubt that the portion of the alleged statement of the appellant would be admissible in evidence. However, their Lordships of the Apex Court, after appreciating the evidence, came to the conclusion that, although the statement might otherwise have been admissible in evidence, there was no discovery of a fact connecting the appellant with the receipt of the diamonds, which were stolen, within the meaning of Sec.27 of the Evidence Act because the Police already knew that the third and/or the 4[th] accused had the diamonds. It was Crl.A.Nos.1527/18 & 773/19 - : 47 :- further held by the Apex Court therein, that in neither case as above, could the articles or the diamonds be said to be the fact discovered. It will be pertinent to refer to paras 4, 5 and 7 of the case in _**Jaffar Hussain Dastagir's case supra**_ [(1969) 2 SCC 872], which read as follows: “ _**4.** The High Court came to the conclusion that the complicity of the appellant with the crime alleged rested only on two pieces of evidence brought forward at the trial. The first was his identification by Mehta and his companion at the identification parade to the affect that he was present in the train on the material date and at the material hour. By itself this means nothing because there were a number of other persons who were standing in the passage at the same time and there is no suggestion ... and indeed there could be none... that any of these persons were connected with the crime. To fasten the guilt on the appellant the prosecution had to rely on the evidence furnished by the statement alleged to have been made by the appellant to the police and the Panchas in consequence whereof he was said to have led the police party to the Bombay Central Railway Station waiting hall and to the discovery of the diamonds from Accused 3. As the statement of the accused recorded above was in the nature of a confession it would come under the embargo of Section 26 of the Evidence Act unless it can be brought within the ambit of Section 27 of the Evidence Act which reads:_ _“Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”_ _In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused. If the police had no information before of the complicity of Accused 3 with the crime and had no idea as to whether the diamonds would be found with him and the appellant had made a statement to the police that he knew where the diamonds were and would lead them to the person who had them, it can be said that the discovery of the diamonds_ Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** _with the third accused was a fact deposed to by the appellant and admissible in evidence under Section 27. However, if it be shown that the police already knew that Accused 3 had got the diamonds but did not know where the said accused was to be found, it cannot be said that the information given by the appellant that Accused 3 had the diamonds and could be pointed out in a large crowd at the waiting hall led to the discovery of a fact proving his complicity with any crime within the meaning of Section 27. The fact deposed to by him would at best lead to the discovery of the whereabouts of Accused 3._ _**5.** Under Section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled. If an accused charged with a theft of articles or receiving stolen articles, within the meaning of Section 411 IPC states to the police, “I will show you the articles at the place where I have kept them” and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle there is no difference between the above statement and that made by the appellant in this case which in effect is that “I will show you the person to whom I have given the diamonds exceeding 200 in number”. The only difference between the two statements is that a “named person” is substituted for “the place” where the article is kept. In neither case are the articles or the diamonds the fact discovered._ **==> picture [230 x 7] intentionally omitted <==** _**7.** This Court had to consider the scope of Section 27 of the Evidence Act in K. Chinnaswamy Reddyv. State of Andhra Pradesh. [19633 SCR 412] There the appellant was convicted under Section 411, of the IPC by an Assistant Sessions Judge. He was tried along with another person who was convicted under Sections 457 and 380 of the IPC. A house had_ Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** _been burgled and valuable articles stolen. During the course of investigation the police recovered 17 ornaments on the information given by the appellant. The other accused had also given information on the basis of which another stolen ornament was recovered. The Assistant Sessions Judge came to the conclusion that the other accused had actually committed house breaking and had removed the ornaments from the house burgled and had handed over 17 of them to the appellant. He also came to the conclusion that the 17 ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under Section 411 of the IPC. On appeal the Sessions Judge held that the appellant had not been proved to be in possession of the 17 ornaments which were recovered at his instance from a garden. According to the Sessions Judge the full statement of the appellant that “he would show the place where he had hidden them (the ornaments)” was not admissible against him. The Sessions Judge held that the part of the statement of the appellant which related to his having hidden the ornaments was inadmissible. There was a criminal revision to the High Court and retrial was ordered and it was against that order that the appeal to this court was directed. Overruling the interpretation of the Sessions Judge, this Court held that the whole of the statement related distinctly to the discovery of the ornaments and was admissible under Section 27 of the Evidence Act. It was said:_ _“These words (namely, where he had hidden them) having nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement.”_ _The contention that in a case where the offence consisted of possession even the words “where he had hidden them”, would be inadmissible as it amounted to an admission by the accused that he was in possession of them was rejected on the ground that if the statement related distinctly to the fact thereby discovered it would be admissible in evidence irrespective of the question as to whether it amounted to a confession or not. There can be no doubt that the portion of the alleged statement of the appellant extracted by us would be admissible in evidence.”_ 58. As mentioned herein above, though it was held in paras 4, 5 & 7 supra that the above referred statement of the appellant therein (A-1) would be admissible in evidence, their Lordships further discussed the evidence in paras 8 to 10 thereof and found that the Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** investigating officer therein already had prior knowledge that the other accused persons (A-3 and A-4) had custody of the diamonds and hence, it was held that the statement of the appellant (A-1), that A-3 had custody of the diamonds, would not be something unknown to the Police so as to constitute " _a fact deposed to as discovered in consequence of the information received_ " from the appellant. The discovery, if any, merely related to the whereabouts of A-3 and there was no discovery of any fact deposed to by the appellant within the meaning of Sec.27. If the police had not gone to the office of the Bombay Samachar and had not learned of the complicity of A-3 with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of A-3. Hence, it was held in para No.12 thereof that, although the statement might otherwise have been admissible in evidence, there was no discovery of a fact connecting the appellant with the receipt of the diamonds, which were stolen, within the meaning of Sec.27 of the Evidence Act, because the police already knew that A-3 and A-4 had the diamonds. Hence, the appeal was allowed and the appellant was directed to be set at liberty. However, it has been held, in para 11 thereof, that, in view of the Crl.A.Nos.1527/18 & 773/19 - : 51 :- above aspects, the discovery, if any, merely related to the whereabouts of A-3. It will be pertinent to refer to paras 11 and 12 of the decision in _**Jaffar Hussain Dastagir's case supra**_ [(1969) 2 SCC 872], which read as follows: _**“11.** In our view Gaud must have learnt that Parekh and/or Accused 3 had the custody of the diamonds. Therefore the statement of the appellant that Accused 3 had the custody of the diamonds would not be something unknown to the police so as to constitute “a fact deposed to as discovered in consequence of the information received” from the appellant. The discovery, if any, merely related to the whereabouts of Accused 3. There was no discovery of any fact deposed to by the appellant within the meaning of Section 27. If the police had not gone to the office of the Bombay Samachar and had not learned of the complicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of Accused 3._ _**12.** In the result although the statement might otherwise have been admissible in evidence, there was no discovery of a fact connecting the appellant with the receipt of the diamonds which were stolen within the meaning of Section 27 of the Evidence Act because the police already knew that the third and/or the fourth accused had the diamonds. The appeal must be allowed and the appellant directed to be set at liberty.”_ 59. Thus, it can be seen that the abovesaid statement in question, considered by the Apex Court in _**Jaffar Hussain Dastagir's case supra**_ [(1969) 2 SCC 872], would have been admissible in evidence, in terms of Sec.27 of the Indian Evidence Act, if the investigating officer did not have prior knowledge, from other independent sources, that A-3 and A-4 had custody of the diamonds. In that case, independent of the disclosure of the appellant/accused therein, the Police had prior knowledge from another source that A-3 Crl.A.Nos.1527/18 & 773/19 - : 52 :- and A-4 already had diamonds, etc. 60. The Apex Court, in the decision in _**State of Maharashtra** v._ _**Suresh** [(2000) 1 SCC 471],_ had dealt with the interrelationship between Secs.27, 106 & 114 of the Indian Evidence Act, 1872. Therein, the admissible portion of the statement of the accused to the Police, which led to the discovery of the dead body, was stated as follows _[See para 24 thereof]_ : _"Her dead body is kept concealed in the field; I will take it out and produce the same; Come with me."_ 61. The Bombay High Court, as per the impugned judgment, did not rely on the above recovery. One of the reasonings was that there are two other possibilities that could not have been ruled out, of which one is that the accused would have seen someone else placing the dead body at that spot, and the second is that the accused would have been told by somebody else that the dead body was placed there, etc. _[See para 25 thereof]_ Dealing with these aspects, the Apex Court has categorically held, in para 26 thereof, that in such a scenario, the Court can countenance three possibilities when an accused points out a place where the dead body or any incriminating material was concealed, without stating that it was concealed by Crl.A.Nos.1527/18 & 773/19 - : 53 :- himself. One is that he, himself, would have concealed it. Second is that he would have seen somebody else concealing it and the third is that he would have been told by another person that it was concealed there. But, if the accused declines to disclose to the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the Criminal Court can presume that it was concealed by the accused himself. It was held that this is because, the accused is the only person who can offer explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court, as to how else he came to know of it, the presumption is a well justified course to be adopted by the Criminal Court that the concealment was made by the accused himself. Para 26 of _**Suresh's**_ case supra _[(2000) 1 SCC 471]_ reads as follows: _**"26.** We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."_ Crl.A.Nos.1527/18 & 773/19 - : 54 :- 62. The abovesaid dictim laid down by the Apex Court that authorship of the concealment need not necessarily be part of the statement of the accused and about the three possibilities arising out of discovery of fact made out on the basis of recovery of the concealed incriminating materials etc. have been relied on by the Apex Court in the decision as in _**Rumi Bora Dutta** v._ _**State of Assam** [(2013) 7 SCC 417, para 22]._ It is also relevant to note that in para 21 thereof, the Apex Court has also held that, earlier in _**Suresh's**_ case supra _[(2000) 1 SCC 471],_ the Apex Court has held that a false answer offered by the accused, when his attention is drawn to the circumstances, render the circumstances to be of inculpating nature and in such a situation, a false answer can also be counted as providing " _a missing link_ " for completing the chain. Further that, in the case at hand therein, the factum of recovery, through the witnesses, has proved that the accused persons have led to the recovery and when it was put to them, in Sec.313 Cr.P.C. stage, they had given an answer in the negative, in a nonchalant manner, and that, the incriminating materials were concealed and they were discovered on the basis of the statement given by the accused persons, etc. Crl.A.Nos.1527/18 & 773/19 - : 55 :- 63. A Full Bench of this Court in the decision in _**Ajayan alias Baby** v._ _**State of Kerala** [2011 (1) KLT 8 (FB)]_ was called upon to consider the issue as to whether authorship of concealment is _sine qua non_ to make an information, received from a person accused of an offence and in custody of a police officer, admissible under Sec.27 of the Indian Evidence Act. The said issue was referred to the Full Bench, in view of the apparently conflicting judgments rendered in respect of the above question. The Full Bench, after exhaustively considering the precedents, has categorically held, in para 24 thereof, that authorship of concealment is not a _sine qua non_ to make an information received from a person accused of an offence, while in custody of a Police officer, admissible under Sec.27 and that, if the information, as deposed to by the Investigating Officer, is otherwise admissible in evidence, it would not become inadmissible solely for the reason that the information deposed by the Police Officer does not reveal the authorship of concealment. In other words, it was held that the view taken in the decisions of this Court, that authorship of concealment is _sine qua non_ for admissibility of the statement of the accused under Sec.27 of the Act is not correct in law. Therein, the Full Bench has placed reliance on the decision of the Apex Court in Crl.A.Nos.1527/18 & 773/19 - : 56 :- _**Suresh's**_ case supra _[(2000) 1 SCC 471, para 26]._ Further, the Full Bench has held, in para 23 thereof, that Sec.27 of the Act is based on the doctrine of confirmation by subsequent events. That, when the accused gives information to the Police Officer that a particular object is kept concealed at a particular place or given to a particular person and either points out the place wherefrom the said object is recovered by the Police or is produced by the accused or he points out the person, who produces the object, recovery of the object confirms the truth of the information given by the accused. For the application of Sec.27, it was held that it makes no difference whether information given is that the article is concealed at a particular place or that it is given to a particular person. Sec.27 does not say that for admissibility of the information, authorship of concealment is essential. The expression “ _distinctly_ ”, appearing in Sec.27 only means “ _directly_ ”, _“indubitably”, “strictly”, “unmistakably”,_ etc. and that, the expression is used in Sec.27 to limit and define the scope of information admissible in evidence and it refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery and the expression _“distinctly”_ is used to show ‘exclusivity’ of the information acquired by the Police Officer from the Crl.A.Nos.1527/18 & 773/19 - : 57 :- ## accused and leading to the discovery of the fact. ## 64. Paras 23 & 24 of _**Ajayan's**_ case supra _[2011 (1) KLT 8_ ## _(FB), read_ as follows: " **23** _**.** Sec. 27 of the Act is based on the doctrine of confirmation by subsequent events. When the accused gives information to the Police Officer that a particular object is kept concealed at a particular place or given to a particular person and either points out that place wherefrom the said object is recovered by the Police or is produced by the accused or he points out the person who produces the object, recovery of the object confirms truth of the information given by the accused. For the application of Sec. 27, it makes no difference whether information given is that the article is concealed at a particular place or that it is given to a particular person. Section 27 does not say that for admissibility of theinformation authorship of concealment is essential. The expression “distinctly” only means “directly”, “indubitably”, “strictly”, “unmistaka bly”. That expression is used in Sec. 27 to limit and define the scope of information admissible in evidence. It refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The expression “distinctly” is used to show ‘exclusivity’ of the information acquired by the Police Officer from the accused and leading to the discovery of the fact. The Supreme Court in State of Rajasthan v. Bhup Singh ((1997) 10 SCC 675) pointed out that the ratio in Pulukuri Kottaya “has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth”. The Supreme Court quoted with approval the decision in State of Bombay v. Cnhaganlal Gangaram Lavar (AIR 1955 Bombay 1) in Pandurang Kalu Patel v. State of Maharashtra which is thus:_ _“So long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are still binding upon us, and when we say that the decisions of the Privy Council are binding upon us, what is binding is not merely the point actually decided but an opinion expressed by the Privy Council, which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given.”_ _**24.** In view of what we have stated above, we hold that authorship of concealment is not sine qua non to make information received from a person accused of an offence while in the custody of the Police Officer admissible under Sec. 27 of the Act and that if the information as deposed to by the Investigating Officer is otherwise admissible in evidence it would not become inadmissible solely for the reason that the information deposed by the Police Officer does not reveal authorship of concealment."_ 65. The dictum laid down in _**Suresh's**_ case supra _[(2000) 1_ _SCC 471]_ has been relied on by the Apex Court in the case in Crl.A.Nos.1527/18 & 773/19 - : 58 :- _**Charandas Swami** v._ _**State of Gujarat & Ors.** [(2017) 7 SCC 177],_ in para 63 thereof. 66. The Apex Court has held, in para 142 of the decision in _**State (NCT of Delhi)** v._ _**Navjot Sandhu** [(2005) 11 SCC 600]_ , that pointing out a material object by the accused furnishing the information is not a necessary concomitant of Sec.27. It could very well be that, on the basis of information furnished by the accused, the investigating officer may go to the spot, in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact _viz._ the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, it was held that, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Sec.27 and it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. That, if the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Sec.27, though it may be one of the aspects that goes into evaluation Crl.A.Nos.1527/18 & 773/19 - : 59 :- of that particular piece of evidence. 67. The Apex Court has held, in para 13 of the decision in _**Mohd. Inayatullah v. State of Maharashtra** [(1976) 1 SCC 828]_ , that it is now fairly settled, that, the expression “ _fact discovered_ ” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this. 68. In para 12 of _**Mohd. Inayatullah's**_ case supra _[(1976) 1 SCC 828]_ , the Apex Court has held that the most important condition in the applicability of Sec.27 is that only “so much of the information” as relates _distinctly_ to the fact _thereby_ discovered is admissible and the rest of the information has to be excluded. The phrase “ _distinctly relates to the fact thereby discovered_ ” refers to that part of the information supplied by the accused, which is the _direct_ and _immediate_ cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that, if a fact is actually discovered, in consequence of the information given by the accused, it affords some guarantee of truth Crl.A.Nos.1527/18 & 773/19 - : 60 :- of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. Reference in this connection may be made to para 12 of _**Mohd. Inayatullah's**_ case supra _[(1976) 1 SCC 828],_ which reads as follows: _"_ _**12.** .........................................................The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. "_ 69. In para 128 of _**Navjot Sandhu's case**_ supra [(2005) 11 SCC 600], the Apex Court (after placing reliance on para 11 of _**Udai Bhan** v._ _**State of U.P**_ [AIR 1962 SC 1116]) has held that a discovery of a fact, envisaged in Sec.27, includes the object found, the place from where it is produced and the knowledge of the accused as to its existence. Crl.A.Nos.1527/18 & 773/19 - : 61 :- 70. By placing reliance on the aforesaid rulings, the Apex Court in **Charandas Swami's case** supra [(2017) 7 SCC 177] has held that the facts discovered, pursuant to disclosure, as envisaged in Sec.27 includes mental facts. In **Charandas Swami's case** supra [(2017) 7 SCC 177], pursuant to the disclosure made by A-3, the dead body was identified as that of the deceased victim, which, until then, was recorded as the dead body of an unknown person and had already been recovered from the location disclosed by the accused. It was held that the facts discovered, pursuant to the disclosure made by the accused, need not be self-probatory and the word _“fact”,_ contemplated under Sec.27, is not limited to “actual physical material object”. It was held that the discovery of the fact arose by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant, as to its existence. Hence, it was held therein that the fact that the dead body had already been recovered from the same place, does not undermine the admissibility of the disclosure made by A-3 therein to the Investigating Officer, about the location where the dead body of the deceased was dumped by him, which information was exclusively within his personal knowledge and was thus held to be admissible in Crl.A.Nos.1527/18 & 773/19 - : 62 :- terms of Sec.27. In that case, on subsequent medical examination, the dead body of the unknown person was found to be that of the deceased. 71 _._ The Apex Court, in the recent decision in _**Venkatesh @ Chandra & Anr.** v._ _**State of Karnataka** [2022 SCC OnLine SC 765]_ , in para 20 thereof, has placed reliance on the dictum laid down by the Privy Council in para 10 of _**Pulukuri Kottaya** v._ _**KingEmperor** [AIR 1947 PC 67]._ 72. In para 10 of _**Pulukuri Kottaya's**_ case supra, the Privy Council held that the statement of the accused in police custody that " _I will produce a knife concealed in the roof of my house_ " does not lead to the discovery of a knife; but leads to the discovery of the fact that knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. Further, it was held by the Privy Council that but, if to the above statement, the words be added " _with which I stabbed A_ ", then these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. 73. Placing reliance on the abovesaid dictum of the Privy Crl.A.Nos.1527/18 & 773/19 - : 63 :- Council, the Apex Court has held, in para 21 of _**Venkatesh's**_ **case** supra [ _2022 SCC OnLine SC 765_ ] _,_ that applying this logic, only that part of the statement which leads to the discovery of certain facts alone could be marked in evidence and not the entirety of the statement. 74. In the case dealt with in _**Venkatesh's**_ **case** supra, the statement of the accused was as follows: _“…..If I am taken there, I will show the spot where we committed murder, and we will show the place where we have thrown the knife and the rod. And we will show the shop in which we sold the jewelleries.”_ 75. It was held by the Apex Court, in paras 21 & 22 of _**Venkatesh's**_ case supra, that the words " _where we committed murder"_ would be inadmissible and only the remaining portion would be admissible and can be marked in evidence and that, the expression " _where we committed murder"_ in the above statement must not come on record and that, similarly, all facts narrated in the statement about the past history, which are in the nature of self implication, would be inadmissible, as amounting to a confession made to a Police officer and that, all the statements, namely, Exts.P-21 to P-24 therein, must be read accordingly. 76. It will be pertinent to refer to paras 21 & 22 of Crl.A.Nos.1527/18 & 773/19 - : 64 :- ## _**Venkatesh's**_ case supra [ _**2022 SCC OnLine SC 765**_ ] which read ## as follows: _"_ _**21.** As was observed by the Privy Council the words - “with which I stabbed A” were inadmissible since they did not relate to the discovery of knife in the house of the informant. Applying this logic, only that part of the statement which leads to the discovery of certain facts alone could be marked in evidence and not the entirely of the statement. Coming to the instant case and going by the principle and the illustration highlighted by the Privy Council, out of the statement of accused No. 1, only the following portion except the words printed in “italics” would be admissible and can be marked in evidence:_ _“…..If I am taken there, I will show the spot where we committed murder, and we will show the place where we have thrown the knife and the rod. And we will show the shop in which we sold the jewelleries.”_ _**22.** The expression “where we committed murder” must not come on record. Similarly, all the earlier facts narrated in the statement about past history which are in the nature of self-implication, would be inadmissible as amounting to a confession made to a Police Officer. All the statements namely, Exhs. P-21 to P-24 must be read accordingly."_ 77. Before we deal with the application of these principles to the admissibility or otherwise of Exts.P-13(a) & P-13(b), a related contention of the defence will have to be noted. A specific contention is taken by the counsel for A-1 that the presence of A-1 is not noted in Ext.P-13 recovery mahazar and that, therefore, Ext.P-13(a) cannot be pressed into service at all and this submission has been opposed by the learned Prosecutor. 78. After hearing both sides, it is to be noted that it is true, that the presence of A-1 is not explicitly noted in Ext.P-13 recovery mahazar. PW-17 (Investigating Officer) has given detailed evidence Crl.A.Nos.1527/18 & 773/19 - : 65 :- regarding the arrest of A-1 and the recording of his statement, of which Ext.P-13(a) is a part, etc. Ext.P-13 recovery mahazar is attested by two witnesses, one of which has been examined as PW-19. 79. The abovesaid evidence tendered by PW-17 (Investigating Officer), PW-19 (attesting witness), regarding the aspects borne out from Exts.P-13 recovery mahazar, has not been, in any manner, challenged by either of the accused. Not even a suggestion is put on behalf of A-1 during cross-examination of those prosecution witnesses that A-1 was not present. The fact stated in Ext.P-13 that Ext.P-13(a) statement was recorded by the Investigating Officer and that his presence was not there, etc., is not even suggested. Further, PW-11, on whom much reliance has also been placed by the accused, has also stated about the presence and arrest of A-1, as above and the said evidence of PW-11 is also highly relevant, inasmuch as events in relation to the recording of Ext.P-13, is something intrinsically contemporaneous to his arrest. Hence, the learned Prosecutor submitted that the presence of A-1 has not been explicitly noted and the same is only an omission, etc. 80. After due consideration, we are of the view that the Crl.A.Nos.1527/18 & 773/19 - : 66 :- non-mentioning of the presence of A-1 in Ext.P-13 recovery mahazar, can only be an inadvertent omission of the Investigating Officer and the same cannot be fatal. ## **III Legality of Recovery** ## **(a) Recovery of MOs 1 to 3 and MO 5** 81. Now, coming to the facts of the case, it can be seen that the prosecution case is that, on being questioned, after his arrest, A-1 has given statement of which Ext.P13(a) is a part, and as per Ext.P13(a), he had told the police that, if he is taken, he will show one Ruben (A-2) and that he would also show Ruben’s house to the police. In pursuance thereof, A-1 was taken to the residence of A-2, as pointed out by A-1, and on the way, A-2 was pointed out to the police. Thus, A-2 was arrested and, on being questioned, he has given statement to the police, of which Ext.P-13(b) is a part. As per Ext.P-13(b), he has stated as follows:- **യ** "അമ്മചടിയയകട വവീടടിൽ നെടിന്നെത്ത് എടയത സസ്വർണവ കവാശയും വവീടടിൽ കവചടിടയണത്ത്. എകന്നെ കകവാണത്ത് ശപവായവാൽ കവാണടിചയ തരവായും." Here, we would straight away deal with one objection raised by the counsel for A-2, which is that, in the above statement, there is no specific admission by A-2 that the gold ornaments and cash taken Crl.A.Nos.1527/18 & 773/19 - : 67 :- from the deceased lady, have, in fact, been placed in his house or that it was so placed by him. The said contention is raised on behalf of A-2, since it is not expressly stated that the house referred to therein is the house of A-2. The first part of the abovesaid statement of A-2 cannot be read in the extreme narrow and hyper-technical manner, as suggested by the counsel for A-2. 82. When A-2 clearly says to the police that, the gold ornaments and cash taken from the deceased lady’s house have been kept in the house, then, ordinarily, any person with common sense and prudence can understand that what he has stated is as follows: “ _The gold ornaments and cash taken from the deceased lady’s house has been kept in his house_ ”, meaning thereby A-2’s house. 83. Hence, the first limb of the afore argument of A-2 is rejected. The second limb of the afore argument of A-2 is that he has not stated that the above objects have been kept by him in his house. Even if we assume that it is so, it is to be only held that the said contention is not legally tenable inasmuch as, it is now well settled that authorship of concealment is not a _sine-qua non_ to make the information received from the accused of an offence while in custody Crl.A.Nos.1527/18 & 773/19 - : 68 :- of the Police, admissible under Sec.27 of the Indian Evidence Act. 84. So, on the abovesaid statement of A2 at Ext.P13(b) the police was taken to A-2’s house and by the prosecution case, there, they could recover Exts.MOs-1 to 3 ornaments and MO-5 cash, etc., which are mentioned in Ext.P13 recovery mahazar. 85. The recovery of Mos-1 to 3 and MO-5, etc., in pursuance of Ext.P-13 recovery mahazar, has been deposed in evidence by PW-17 Investigating Officer and PW-19, the attesting witness to Ext.P-13. 86. The abovesaid evidence of PW-17 & PW-19, etc., have not, in any manner, been seriously dented by the defence. 87. Further, PW-1 (nephew of the deceased) and PW-3 (elder son of the deceased) have identified that Mos - 1 to 3 ornaments belong to the deceased lady and that MO-5 cash belongs to her, etc. 88. In the light of these aspects, Ext.P13(b) statement, given by A2, is admissible, inasmuch as it has distinctly led to the discovery of the fact that A2 had knowledge about the incriminating materials concealed in his own house, and that the recovery has been made only because of his statement and as pointed out by him. 89. There is confirmation by subsequent events, inasmuch as, the close family relatives of the deceased lady have deposed, in clear Crl.A.Nos.1527/18 & 773/19 - : 69 :- and un-rebutted evidence, that those incriminating materials actually belong to the deceased. Hence, the contention that, Ext.P13(b) is not admissible, etc., in terms of Sec.27 stands rejected. 90. The issue as to the applicability of Sec.8 (relevant conduct), Sec.114(a), in respect of the facts of the recovery of the above incriminating materials from A-2, will be dealt with separately, when the issue of culpability of A2 is discussed. 91. Now, we will have to deal with the admissibility of Ext.P-13(a) statement given by A1. Here, a contention has been raised by A-2 that, going by the narration of the facts in Ext.P-13 recovery mahazar, the case of the prosecution is that, A-1 has made Ext.P-13(a) statement as above, and that on the way, A-2 was seen and that, thereafter, it was A-2 that pointed out his own house and that, the house of A-2 was not, in fact, physically pointed out by A-1 to the police and that, therefore, the discovery of the fact, if any, relating to the residence of A-2 has been made by the police in the actual course of events, only as pointed out by A-2. We are not prepared to countenance the abovesaid plea of A-2. 92. The facts and circumstances of this case should be holistically evaluated and assessed. In Ext.P-13(a), A-1 has stated Crl.A.Nos.1527/18 & 773/19 - : 70 :- that, ‘ _if the police takes him, then he will show one Ruben_ ’, who was later implicated as A-2, and further that, A-1 would also show to the police the residence of A-2. 93. Going by the events generated in Ext.P-13, after recording Ext.P-13(a), A1 had accompanied the Police in their vehicle, and on the way, he pointed out A-2 and A-2 was then arrested. True that, thereafter, it was A-2, who had taken the police to his own residence, which led to the recovery, as above. 94. But for the disclosure of information by A-1 to the police that he knew A-2 and that he also knew A-2’s residence, etc., the police would not have been able to know either the identity of A-2 or been able to trace out his actual location or whereabouts. 95. Going by the version in Ext.P-13, it is only because of the disclosure made by A-1 that A-2 could be identified and after his arrest, the residence of A-2 could also be identified by the police. 96. Going by the facts in Ext.P-13, A-1 was also present along with the Police when A-2 was arrested at Chappath, near to the residence of A-2, and it is from there that A-2 had taken the Police to his nearby house. Hence, the events, as above, relating to the pointing out by A-1 of A-2 to the police and the identification of the Crl.A.Nos.1527/18 & 773/19 - : 71 :- location of the residence of A-2 etc., have all happened contemporaneously and these events cannot be seen as separate or distinct. 97. Further, it is contended by A-2 that, even going by the admitted case of the Police, the disclosure made by A-1 to the Police, as per Ext.P-13(a), cannot lead to any inference that A-1 knew the place of concealment of the incriminating materials or that A-1 could be linked with the alleged knowledge of A-2 regarding the place of concealment of the incriminating materials in A-2’s residence. 98. That may be so, but the core aspect of the matter is that the abovesaid disclosure of A-1 has, atleast, certainly led to the distinct discovery of the fact that A-1 knew A-2, A-2’s residence and the whereabouts of A-2. 99. It is by now well settled, by the afore rulings of the Apex Court, in cases as in _**Mohd. Inayatullah**_ ’s case supra [(1976) 1 SCC 828, para 13], _**Udai Bhan**_ ’s case supra [AIR 1962 SC 1116, para 11] _**Navjot Sandhu**_ ’s case supra [(2005) 11 SCC 600, para 128] and _**Charandas Swami**_ ’s case supra [(2017) 7 SCC 177], that the facts discovered in pursuance of disclosure, as envisaged in Sec.27 of the Evidence Act, can be inclusive of not only recovery of concealed Crl.A.Nos.1527/18 & 773/19 - : 72 :- material objects but also includes mental facts or knowledge, that is, facts in relation to mental state or knowledge in relation to certain things, concrete or non-concrete. 100. Further, the recovery of the concealed incriminating materials from A2’s residence are intimately, approximately and contemporaneously linked with the disclosure of A-1. We have already dealt with the admissibility of Ext.P-13(b) statement given by A-2. Hence, for these reasons, we are of the firm view that Ext.P-13(a) given by A-1 would be admissible. Further, the discovery of the fact that A-1 knew A-2 and that A-1 also knew the whereabouts and residence of A-2, are also confirmed by subsequent events inasmuch as, based on the said information, the identity whereabouts of A-2 could be precisely ascertained by the investigating agency and further, the recovery of the concealed incriminating materials could also be made from the residence of A-2. The veracity of the incriminating nature of the said fact was also later confirmed by the Police by the version of the close relatives of the diseased lady, etc. Hence, we are of the view that Ext.P-13(a) statement given by A-1 is admissible, to the limited extent that it has led to the distinct recovery Crl.A.Nos.1527/18 & 773/19 - : 73 :- of the fact that A-1 atleast knew A-2 and that A-1 also knew the whereabouts and residence of A-2. Discovery of the said knowledge in the mind of A-1 is also an admissible element of Sec.27 recovery, going by the dictum laid down by the Apex Court in the decisions cited immediately hereinabove. The other related issues, relating to A-1, would be separately discussed while dealing with the broader issue of culpability of A-1. ## **- (b) Recovery of MO 6** (shawl with hair) 101. Going by the prosecution case, made out in Ext.P-13 recovery mahazar, the recovery of MO-6 shawl with hair has been made not in pursuance of Exts.P-13(a) & P-13(b) disclosure made by A-1 & A-2, respectively, but as pointed out by A-2, while the investigating agency had questioned him in his residence and had searched his premises. 102. Ext.P-1 First Information Statement (FIS) is made by the first informant PW-1 solely and exclusively on the basis of information said to be conveyed to him by A-1, immediately after the crime incident. The said version in Ext.P-1 FIS, as regards the information given by A-1 to PW-1, which is also deposed by PW-1 in his evidence, is that, according to A-1, two out of the five assailants Crl.A.Nos.1527/18 & 773/19 - : 74 :- had covered the lady victim with a shawl and had smothered her, etc., while three others had gone about rummaging and searching the house for valuables. 103. The abovesaid version of PW1, as to the information given to him by A-1, who is said to have directly witnessed the crime incident, etc., has not, in any manner, been challenged by A-1, during the cross-examination of PW-1 or any other prosecution witnesses, like PW-3, PW-17, etc. On the other hand, the specific stand taken by A1 at the Sec.313 Cr.P.C. questioning stage is that the said version is correct and the attack and smothering to death of the deceased has been caused only because of the attack of five unknown assailants, two of whom had covered the face of the lady with a shawl and had smothered her, etc. The abovesaid aspects will have to be borne in mind while evaluating the version of the prosecution in Ext.P-13, regarding the recovery of MO-6 shawl with hair. 104. It is stated in the bottom portion of page 3 and on the top portion of page 4 of Ext.P-13 recovery mahazar as follows:- > “.......കൃതത്യതടിൽ മരണപത്ത്കപട സസവീയയകട മയഖയും മമൂടവാൻ ഉപശയവാഗടിച ഷവാളടികനെക്കുറടിചത്ത് ശചവാദത് **യ** കചയയ് **ത** ടിൽ ടടി മയറടിയയകട കതക്കുവശേയും ഭടിതടിശയവാടത്ത് ശചർന്നെത്ത് കടിടക്കുന്നെ കടടിലടിശന്മേൽ മടക്കെടി കവചടിരുന്നെ ഷവാൾ എടയതത്ത് തരടികയവാൽ ആയതു പരടിശശേവാധടിചതടിൽ ചയവപടിൽ പച Crl.A.Nos.1527/18 & 773/19 - : 75 :- ഡടിസസശനെവാടയകൂടടിയ ഉപശയവാഗടിച പഴക്കെയും കചന്നെ ഒരു കമടിളടി ഷവാൾ ആകണന്നെത്ത് കവാണുന. ആയതത്ത് സമൂകക്ഷ് **മ** വായടി പരടിശശേവാധടിചതടിൽ മടക്കെടിനുളടിൽ നെരച മയടടികൾ പറടിപടിടടിചടിരുന്നെതവായടി കവാണുന. ആയതത്ത് കസലത്ത്ശലവാ കഫെയടിൻ ശടപത്ത് വചത്ത് അതതു സസ്ഥലങ്ങളടിൽ ഒടടിചത്ത് വയയ്ക്കുന. ശമൽപടടി മയതലയകൾ ലകത്യതടിശലക്കെത്ത് ബന്തവസസടികലടയക്കുന.............." 105. The gist of the above version is that A-2 was, _inter-alia_ , questioned about the shawl allegedly used in the crime incident and thereupon, he had pointed at a shawl, lying on a cot placed near the southern wall of that room, and on examining it, it was found to be an old woolen shawl, having red colour with green designs. Further that, on cross-examination of the said shawl, it was found by the Police that some strands of gray hair were found stuck thereon and the said hairs were safely cello-taped with the shawl at the appropriate place. Further that, “ _seizure of these materials have thus been made_ ”. The contention raised by A-2 is that, indisputably, the said alleged recovery of MO-6 shawl with hair is not on the basis of any confession statement as in Ext.P-13(b) and hence the aid of Sec.27 cannot be sought for by the prosecution. Further that, the specific case of the prosecution is that, when the police had asked A-2 as to where he has kept the shawl used in the crime incident, he (A-2) had handed over the shawl lying on the cot, etc. That, the said recovery, is thus only on Crl.A.Nos.1527/18 & 773/19 - : 76 :- the basis of a confession by conduct of the accused and the same is barred, etc. 106. These pleas of A-2 have been opposed by the prosecution. After hearing both sides it is seen that, it is true that, there is no written confession statement of A-2 in regard to MO-6, unlike in the case of his Ext.P-13(b) statement, which has led to the recovery of MO-1 to MO-3 & MO-5. Further, the aforesaid descriptive words used in Ext.P13, relating to MO-6, should be understood in that context. 107. True that the words used in Ext.P13 is that, when A2 was questioned about the shawl used in the crime incident, he had pointed out and handed over the shawl, etc. The words “when A2 was questioned about the shawl used in the crime incident” can only be read and understood as “ _when A2 was questioned about the shawl allegedly or said to have been used in the crime incident….._ ” such a wholesome approach is required, more particularly, in the light of the dictum laid down by the Apex Court in paras 20 to 22 of _**Venkatesh**_ ’s case supra [(2022) SCC online 765], and it shall be the duty of the Court to ensure that the inculpatory part is eschewed out and not put on record. Further, as contended on behalf of A-2, confession can be either on the basis of written statement or even by Crl.A.Nos.1527/18 & 773/19 - : 77 :- conduct. 108. Merely because the claim to confession is not on the basis of a written statement of the accused, but on the basis of his alleged conduct, it cannot alter the substance and essence of the statement and it continues to be a confession in the eye of law. Sec.27 is a proviso to Sec.26 and what is stipulated therein is that-“when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in custody of a Police officer, then so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 109. Hence, after eschewing out the inculpatory part of the confession by conduct, as recorded in Ext.P-13, what is necessary is that some information should be disclosed by the accused to the police, while in custody and so much of such information, as it relates distinctly to the fact thereby discovered may be proved. 110. It has to be borne in mind that while questioning, the investigating officer will have to use language as a means of communication and if he had merely asked A-2 as to where is the shawl and recorded the same in Ext.P-13, that would have been highly Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** impractical and insufficient, inasmuch as, there could have been any number of shawls, i.e., in the mind of the investigating officer. So, to convey the said idea, the investigating officer will have to use language as a means of communication and therefore, his abovesaid version in Ext.P-13, as above, can only be a question to the accused as to where A-2 has kept the shawl allegedly used in the crime incident. The said question was asked because the police had definite information, as per Ext.P-1 FIS given by PW-1, and that too information indisputably given to PW-1 solely and explicitly by A-1, who was personally present in the scene of occurrence, that the assailants had covered the face of the victim with a shawl and had smothered her. Understood in that context, the said question of the investigating officer is only questioning A-2 as regards the shawl said to have been or allegedly used in the crime incident. 111. A reading of this nature would be in accordance with common sense and logic and would also be in consonance with the principles consistently laid down by the Apex Court to ensure that the inculpatory part of such statements made by the accused are eschewed out while considering the applicability of Sec.27. 112. So, in this process, A-2 has conveyed the information to Crl.A.Nos.1527/18 & 773/19 - : 79 :- the police (investigating officer), that the shawl lying on the cot in the room is the shawl in question. The said shawl, on examination, was found to be stuck with some strands of grey hair, which has also been safely cello-taped and the said objects (the shawl with the hair) have thus, been recovered as MO-6, in pursuance of Ext.P-13. 113. The further case of the prosecution is that the shawl was sent for microscopic analysis to the Biology Wing of the Forensic Science Laboratory, and further that, the sample hairs of the deceased lady, secured after post-mortem examination, were also sent for microscopic testing to the Forensic Science Laboratory. The further case of the prosecution is that, after such scientific analysis, the FSL has certified, as per Ext.P-25 dated 22.09.2006, that upon microscopic testing, it was found that the chance hairs in question, i.e., obtained from MO-6, are similar to the sample hairs of the deceased lady, etc. 114. Hence, the prosecution contends that there is confirmation by subsequent events, inasmuch as the hairs found on MO-6 shawl, recovered from the residence of A-2, were found to be similar to that of the sample hairs of the deceased lady. 115. Hence, we are of the view that the information disclosed Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** by A2 by his conduct of pointing out the shawl to the accused, to the limited extent as it relates distinctly to the facts thereby discovered, would be admissible, but subject to proof. The contention that the microscopic testing results, pursuant to Ext.P25 Forensic Science Report, is not scientifically reliable for various grounds would be dealt with separately. 116. Even if we eschew out the information disclosed by A-2 on the basis of his confession by conduct, as mentioned above, still, we are of the view that the recovery of MO-6 would fall within the zone of recovery made by the police, in the course of their statutory duty and function of search and seizure of objects, as envisaged in Sec.165 of the Cr.P.C. 117. This being so, the case of the prosecution is that the investigating agency, in the course of its investigation, could find out the identity of A2 and could also locate his exact whereabouts and while questioning him, they could locate the shawl in question and the same can be seen as the one secured in the course of search made by the Police officer, as envisaged in Sec.165. 118. Further, apart from the implication of Sec.27, the Crl.A.Nos.1527/18 & 773/19 - : 81 :- abovesaid conduct of A2 would also be relevant, as envisaged in Sec.8 of the Evidence Act, in the light of the well settled case laws on the subject, etc., and these aspects of the matter would be separately dealt with. 119. In that regard, yet another contention of the defence to be examined, in relation to the recovery of MO-6 shawl, is that PW-19 (attesting witness) of Ext.P-13 recovery mahazar, has not stated in his evidence that he has witnessed the recovery of MO-6 shawl, and this contention is opposed by the learned public prosecutor. 120. After hearing both sides, it is stated that Ext.P-13 recovery mahazar, has cogently described and explained about the recovery of MO-6 shawl with hair. One of the attesting witnesses of Ext.P-13 is PW-19. PW-17 investigating officer has given evidence regarding the recoveries made in pursuance of Ext.P-13 and he has also proved the document as per Ext.P-13 recovery mahazar. PW-19 (attesting witness), in his evidence, has stated that he has attested as a witness in Ext.P-13 mahazar. 121. Ext.P-21 is the property list which explicitly mentions MO-6 shawl as Sl. No.9 thereof. Ext.P-21 property list has reached the Judicial First Class Magistrate Court, Kattappana, on 08.02.2006, Crl.A.Nos.1527/18 & 773/19 - : 82 :- which is the next day after the preparation of the recovery mahazar dated 07.02.2006. The abovesaid evidence given by PW-17, PW-19, etc., about Ext.P-13 recovery mahazar, has not, in any manner, been successfully challenged by the defence in the cross-examination of those witnesses. Since Ext.P-21 property list has reached the court on the next day itself, it can be reasonably inferred by the court that there would have been no chance of any fabrication or falsification. 122. Hence, we are of the view that the omission of PW-19 to explicitly state about the recovery of MO-6 shawl can only be inadvertent and, more so as PW-17 investigating officer has clearly deposed about the recovery of MO-6 shawl. As mentioned above, there is no suggestion of challenge by the defence in the cross of PW-17 & PW-19 as to either that the shawl was not recovered or that it has been falsely planted. Of course, there is a suggestion that the hair found in the shawl was falsely planted, etc. That aspect of the matter would be dealt with later. In the light of these aspects, we are not in a position to accede to the pleas of the accused persons in their contentions against the admissibility of Ext.P13(a) & Ext.P13(b) and as regards the recovery of MO-1 to MO-3, MO-5 & MO-6. 123. The appellants have also raised a contention that the Crl.A.Nos.1527/18 & 773/19 - : 83 :- recovery of MO-1 to MO-3, MO-5 & MO-6 are false and fabricated and at any rate, unreliable, as there are serious contradictions in the version in Ext.P-13 recovery mahazar, in comparison to the version in the remand report. In that regard, the appellants would point out that the specific version in Ext.P-13 recovery mahazar is that MO-1 to MO-3 & MO-5 were recovered from the draw of the iron table lying in the room of the residence of A-2 (see page 2 of Ext.P-13) and that, MO-6 shawl was recovered from the cot lying near to the southern wall of the room in the residence of A-2 (see bottom portion of page 3 of Ext.P-13 dated 07.02.2006), etc. Whereas, in the remand report, prepared on the next day (08.02.2006), it has been _inter alia_ stated by the Police that these material objects were recovered from the draw of the Almirah in the residence of A-2. Hence, it is urged by the appellants that there is material and substantial contradiction in the versions of the Investigating Agency regarding the factual incidents relating to the recovery of the material objects, as can be seen from a comparison of their respective versions in Ext.P-13 recovery mahazar dated 07.02.2006 and remand report dated 08.02.2006. These contentions have been strongly opposed by the prosecution. 124. The learned Prosecutor has pointed out that the words Crl.A.Nos.1527/18 & 773/19 - : 84 :- ## used in page 2 of Ext.P-13 is as follows : “............... ടടി മയറടിയയകട കതക് **ക** ു ടിഴക്കെത്ത് മമൂല ഭവാഗത്തു ഇടടിടയള ഇരുമത്ത് ശമശേയയകട അടടിഭവാഗത്തുള ശറവാ വവീടടിൽ നെടിന്നെത്ത് തവാശക്കെവാൽ എടയതത്ത് തുറന്നെത്ത് **യ യ** ആയതടിനുളടിൽ സമൂകടിചടിരുന്നെ ഒരു ശജവാഡടി കമ്മല ഒരു ശമവാതടിരവ ഒരു **യ** കവളടി അരഞ്ഞവാണവ കുറചയ കറൻസടി ശനെവാടയകളയയും എടയതത്ത് ഹവാജരവാക്കെടി തരുകയവാ............” and that, the word “ശമശേ” (table), written in Malayalam handwriting, is not discernible and the alphabet “ശേ" of “ശമശേ" would be confusingly read as the Malayalam alphabet “ര", in view of the nature of the handwriting of the draft of Ext.P-13 and it is quite possible that when the remand report was prepared on the next day by the subordinates of the Investigating Officer, they would have wrongly construed the same as “അലമവാര", which is of course, certainly a mistake and the mistake could have occurred in that manner. Further, he would point out that a comparison of Ext.P-13 recovery mahazar prepared on 07.02.2006 and remand report prepared on the next day (08.02.2006), would show that the documents are written in different handwritings. 125. Further, after referring to the contents of the remand report, the learned Prosecutor pointed out that the factual aspects, Crl.A.Nos.1527/18 & 773/19 - : 85 :- regarding the recovery of MO-1 to MO-3 & MO-5 as well as the recovery of MO-6, have all been included in a long compound sentence by the drafter of the remand report, presumably on account of the hurry in preparing the remand report to be presented immediately thereafter before the learned Magistrate, seeking remand of the accused. If the said sentence is carefully analyzed, it can be made out that, apart for the recovery of MO-6 shawl, which is in one separate and long compound sentence, the recovery of all these objects have been cumulatively stated and this has created the confusion. Further that, the factual aspects of the recovery can be considered only on the basis of Ext.P-13 recovery mahazar, which has been marked and proved by PW-17 (Investigating Officer) as well as the attesting witness. Whereas, though the remand report may be part of the trial court records, the same cannot have any superseding effect over Ext.P-13. 126. After hearing both sides and after carefully considering the abovesaid factual aspects, discernible from Ext.P-13 recovery mahazar and the remand report, we are of the view that, it is reasonably possible that mistakes could have occurred in the drafting of the remand report on the next day, presumably on account of the Crl.A.Nos.1527/18 & 773/19 - : 86 :- haste in preparing it and the divergences in the versions **,** as regards MO-1 to MO-3 and MO-5, are only minor and marginal. As in the former, it is stated that they were recovered from the draw of the iron table in the room and in the latter, it is stated that it is from the draw of the Almirah in the room. Further, the other explanation, regarding the inclusion of the factual aspects regarding recovery of MO-6, along with the factual aspects regarding the recovery of MOs-1 to 3 & MO-5, in one long compound sentence in the remand report, could have possibly been given on account of some incorrect understanding of the drafter of the remand report, whose handwriting appears to be different from Ext.P-13. At any rate, these divergences are minor and not substantial in nature, so as to affect the core of the prosecution case. Substantive evidence has been preferred by the prosecution, regarding Ext.P-13 recovery mahazar by PW-17 as well as PW-19 (the attesting witness). 127. The learned Prosecutor has pointed out that these divergences are insignificant and that the defence is making a mountain out of a molehill. 128. In that regard, it is also pertinent to refer to the dictum laid down by the Apex Court in para 33 of _**State of Maharashtra**_ Crl.A.Nos.1527/18 & 773/19 - : 87 :- _v._ _**Siraj Ahmed Nisar Ahmed & Ors.** [(2007) 5 SCC 161],_ wherein it has been held that minor discrepancies on trivial matter, not touching the core of the matter in issue, hypertechnical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. ## **IV. MO 6 shawl with hair and scientific reliability of - Ext.P 25 FSL test result regarding hair.** 129. We have already dealt with the contention of the defence that the recovery of MO-6 shawl with hair has not been proved properly, as PW-19 (attesting witness) has not explicitly given evidence before the Court about the factual incidents relating to the recovery of MO-6 shawl with hair, in pursuance of Ext.P-13 recovery mahazar. We have already overruled the said contention, in view of the reasonings given hereinabove. PW-17 (Investigating Officer) has given clear evidence regarding the steps taken for recovery of MO-6 shawl with hair, effected in terms of Ext.P-13 seizure mahazar. PW-19 (attesting witness) has given evidence as attesting witness thereto and has thus proved Ext.P-13. The recovered material Crl.A.Nos.1527/18 & 773/19 - : 88 :- objects, including MO-6 and the sample hairs of the deceased, etc., have been duly sent to the Court, as per Ext.P-21 property list, which has reached the Court on the next day itself, i.e. 08.02.2006. No effective challenge has been made by the defence to dent the above evidence of the prosecution, to show in any manner, that the recovery of MO-6 shawl with hair was fabricated or false. We have already held that the omission on the part of PW-19 to explicitly state about MO-6 shawl is only an inadvertent omission, etc. 130. Yet another contention has also been raised by the defence that, ordinarily, death caused by smothering would have resulted in blood oozing out from the nose or mouth, etc., and that therefore, if MO-6 shawl had, in fact, been used for the smothering, as alleged by the prosecution, then certainly, MO-6 shawl would have contained blood stains, saliva, etc. That, the absence of blood stains and saliva in MO-6 shawl would clearly show that MO-6 shawl has been falsely fabricated and planted by the Police in the house of A-2 and that, at any rate, MO-6 shawl would not have been used for the smothering of the deceased lady. 131. Further that, while sending MO-6 shawl for FSL testing, the Investigating Agency has not made any request to the FSL Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** experts, to ascertain as to whether the said shawl contains any blood stains or saliva, etc. In this regard, the defence has placed reliance on the evidence given by PW-12 (Forensic Doctor, who has issued Ext.P-7 Postmortem Certificate), in the cross-examination by A-2, which reads as follows : _“Bleeding from mouth can occur in death due to smothering. Bleeding may occur before death and may persist after death also._ ” The prosecution has strongly opposed the abovesaid contentions of the defence. 132. It is relevant to note that PW-1 (nephew of the deceased)/1[st] informant, was the first outsider, who had seen the deceased lady in a lying down position in the house, which would be within one hour range after the smothering incident. The evidence of PW-1 is that he had reached the house on hearing the loud voice of A-1, immediately after the midnight of 06.02.2006 and in the early wee hours of 07.02.2006. 133. PW-1 has _inter alia_ stated in Ext.P-1 that, on seeing the victim lying down, he had closely examined the lady and found that she was seen in an unconscious state and he tried to lift her up. Later, after his mother and grandmother had reached the scene, he Crl.A.Nos.1527/18 & 773/19 - : 90 :- had sprinkled water on her face and tried to wake her up by shaking her. Further, the abovesaid version given in Ext.P-1 is not, in any manner, contested by the defence and as a matter of fact, the stand taken by A-1 in the Sec.313 Cr.P.C stage is broadly in consensus with the said version in Ext.P-1 and also the corresponding version given by PW-1 in his evidence. Further, PW-1 in his evidence has _inter alia_ stated that, while he had examined the lady (who is his aunt), he had seen that there were scratches on her lips and nearby nose and mouth. Therefore, if blood had been oozing out of the lady's nose or mouth or from the injuries suffered by her, then PW-1, who had reached the scene immediately, would have certainly seen the oozing of blood. 134. It has to be borne in mind that PW-1 is not a stranger, but the direct nephew of the deceased lady, who is living hardly 50 mtrs. away from her residence and therefore, he would have certainly mentioned about the blood oozing out from her nose or mouth, etc., if he had in fact seen it. Therefore, the abovesaid line of evidence given by PW-1 would clearly indicate that, at that time of smothering and immediately thereafter, blood would not have oozed out from her nose or mouth. Crl.A.Nos.1527/18 & 773/19 - : 91 :- 135. The abovesaid evidence of PW-1 is also broadly corroborated by PW-3 (son of the deceased), who had also come to the scene within about 20 minutes or so, after PW-1 had come to the scene. PW-3 has _inter alia_ deposed his evidence that, when he had reached the scene, he had seen his mother lying down on the floor. Further, he had shakened her and there was no motion in her body and then, he had taken the victim to the hospital, etc. When PW-1 and PW-3 had come to the scene, they had seen the deceased in a lying down position. They had examined her face closely and had shakened her and one of them had even sprinkled water on her face. Therefore, if any of them had seen blood oozing out of the victim's nose or mouth, etc., then certainly either one of them or both would have stated the above. Hence, it can be concluded that, at the time of the smothering (which would have been about one hour or so prior to PW-1 & PW-3 coming to the scene), blood would not have been oozing out of the victim's nose or mouth. 136. Moreover, PW-12 (Forensic Doctor) has only stated that bleeding from mouth can occur in death due to smothering and that, such bleeding will occur before death and may persist after death also. The plain implication of this expert evidence is not that Crl.A.Nos.1527/18 & 773/19 - : 92 :- bleeding will invariably occur in all cases of death due to smothering and that, such bleeding may occur, not only after death, but even before death. Moreover, Ext.P-3 series of the photographs of the deceased have been taken at the hospital, at the time of the inquest. The inquest, referred to in Ext.P-12 inquest report, has been conducted between 9.30 AM to 11.30 AM on 07.02.2006. 137. Ext.P-3 photographs would show significant blood clots on the deceased's nose and nearby regions. In the light of the available evidence, it is safe to conclude that, in the instant case, the deceased would have died due to smothering instantaneously and blood may not have been oozing out from the nose or mouth, etc., at the time of smothering or immediately thereafter. Hence, the absence of blood stains in MO-6 woolen shawl cannot be the basis to contend that MO-6 shawl would not have been used for smothering or that it would have been planted falsely by the Police. No specific challenge has been made by the defence during the Cross Examination of prosecution witnesses, like PW-1, PW-3, PW-17 (I.O.) etc., regarding the absence of blood stains in MO-6 shawl, etc. If such a challenge had been made, then the prosecution would have been able to explain their stand more clearly. In the light of all these Crl.A.Nos.1527/18 & 773/19 - : 93 :- aspects, we are not in a position to accept the plea of the defence that it should be inferred by the Court that MO-6 shawl has been planted falsely, as the same does not contain any blood stains. Ext.P-26 FIR has been registered within about 1½ - 2 hours after PW-1 (first informant) got confirmed news from the hospital regarding the death of the victim. The above recoveries have been effected about 16 hours from the time of registration of Ext.P-26 FIR. Moreover, the recovered objects have been duly sent to the Court immediately, as per Ext.P-21, which has reached the Court on the next day itself (8.2.2006). These are all aspects which would clearly pinpoint to the position that the abovesaid steps taken by the prosecution, for recovery and sending the materials to the Court, etc. have been done with all promptitude and therefore, it leads to credibility and believability of the abovesaid case of the prosecution. The MO-6 hairs and the sample hairs of the deceased were sent to the Biology Wing of the Forensic Science Laboratory (FSL) and the FSL has given Ext.P-25 Report dated 22.9.2006. 138. The details of the examination of hairs are contained in heading No.3 with the caption "Examination of Hairs". A reading of pages 4 & 5 of Ext.P-25 would indicate that item No.2 mentioned Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** therein is the hairs attached to MO-6 shawl and item No.1 mentioned therein is the specimen hairs of the deceased taken after Postmortem. Further, it is stated that 9 hairs of item No.2, taken from the shawl, were examined and comparison was made with 25 hairs, taken at random from item No.1 (specimen hairs of the deceased). The details of the cleansing process, using the requisite solutions and the detailed microscopic examination before and after bleeching etc. are mentioned therein. The details of the hairs of item No.1 (specimen hairs of the deceased) and item No.2 (hairs collected from the shawl) are given in the bottom portion of page 4 and the top portion of page 5 of Ext.P-25. The Assistant Director of Biology, after giving those details, has concluded the result of the examination, by stating in clause (4) thereunder, that the hairs attached on the shawl in item No.2 are human scalp hairs, which are similar to the sample scalp hairs found in item No.1 (specimen hairs taken from the deceased). It was further noted therein that hairs taken from shawl in item No.2 had been completely utilized for the purpose of examination. After the remand trial, the defence had summoned and examined DW-2 (Dr.R.Sreekumar, Assistant Director of Biology, FSL). He has given evidence that it was he who had prepared Crl.A.Nos.1527/18 & 773/19 **==> picture [36 x 9] intentionally omitted <==** Ext.P-25 and that, Item No.2 was a shawl and he had collected the 9 hairs attached to the shawl. Further that, at the time of the testing process, there was no facility for DNA Typing test in his laboratory and that DNA Typing test was not asked for. Further, he has given evidence that he has subjected the hairs found from the shawl and the specimen hairs of the deceased through microscopic comparison. A specific question was put to him as to whether microscopic test results may go contrary to the result in DNA testing and to that, he has answered that he cannot say that with any certainity. In the Cross Examination of the prosecution, he has stated that microscopic testing is conclusive but that DNA Typing is the most conclusive. With the absence of DNA Typing, microscopic testing is the most reliable method for comparison of hairs, etc. 139. The appellants/accused have strongly contended that microscopic test analysis cannot be a safe basis for criminal conviction, DNA testing should have been done, only then would it have been conclusive. Further that, the samples of hairs taken from the deceased at the time of Post mortem (Item No.1 supra) had only 25 hairs, which was highly insufficient for conducting a scientific testing. Further that, there are scientific materials to show that Crl.A.Nos.1527/18 & 773/19 - : 96 :- ## microscopic testing is not a reliable method, etc. 140. The appellants would invite our attention to certain textbooks on hair analysis, referred to in para 17.2 of the decision of this Court in the case in _**Muhd. Yousaf @ Sajid** v._ _**State of Kerala**_ [2022 (2) KLT SN 18 (C.No.16)] _,_ the details of which would be stated now: 141. _**Dr.B.R.Sharma** (_ _**Forensic Science in Criminal Investigation and Trials,** Universal Publishing Co. Ltd., 4[th] Edition, 2003, p.1049)_ has stated that _“The identification of hair is not conclusive at present stage of development except through DNA Profiling, if hair roots are available or through mitochondrial protein analysis. Without these, it cannot be said that the hairs in question belong to a particular individual and could not come from any other person. In extremely rare cases, the presence of some individual dye contamination, some extraordinary defect or disease in the hair, however, may permit individualization of the source”._ 142. _**Geoffrey Davies** (Forensic Science, American Chemical Society, 2[nd] Edition, 1986, p.367)_ has stated that _“Hairs from the head of one person vary naturally among themselves and even single hair may exhibit variations in diameter and other features._ Crl.A.Nos.1527/18 & 773/19 - : 97 :- _Cosmetic treatments, abnormalities may be significant. In the absence of distinguishing characteristics, the conclusion as to origin cannot be definitive solely on the basis of laboratory examination”._ 143. Further, it has been held in _**Sudheer Babu** v._ _**State of Kerala**_ [2013 (2) KLT 168] that “ _Though examination of hair is having some importance in identification, even by careful comparison, one cannot say that a hair came from a particular individual. At the most, it can be said that it could have come from him. Therefore, it may not be proper to find an accused guilty on the sole basis of the report that the hair samples collected from the scene of crime have resemblance with the hair sample collected from him, though the same may have relevance for consideration along with other incriminating circumstances against the accused_ ”. 144. Further, it has been held in _**Modi's Textbook on Medical Jurisprudence and Toxicology** (Butterworths, 26[th] Edition, p.426)_ states that _“Unless an adequate number of hair is obtained as questioned hair, the sophisticated and very highly sensitive methods like neutron activation analysis may also be scientifically unconvincing and unsuitable for Court use”._ 145. Further, the appellants have pointed out that precise Crl.A.Nos.1527/18 & 773/19 - : 98 :- details, like age, sex/gender of the person from whom the hair is taken, can be known in precision only by DNA testing, etc. 146. Further, the appellants would also contend, on the basis of the afore Textbook authored by Dr.B.R.Sharma (p.1054), that about 100 specimen hairs are adequate for comparison and on that basis, they would urge that since admittedly, Ext.P-25 and the prosecution materials would show that the sample hairs taken from the deceased (Item No.2 supra) contain only 25 hairs, there is no sufficient samples available from the deceased and the test results of Ext.P-25 is thus, scientifically faulty and unreliable. 147. The above contentions have been opposed by the prosecution. 148. At the outset, we have to note a word of caution given by the Apex Court while dealing with contentions based on textbooks of experts regarding the reliability or otherwise of scientific test results. In _**Bhagwan Das & Anr.** v._ _**State of Rajasthan** [AIR 1957 SC 589],_ the Apex Court has categorically held that it would indeed be a dangerous doctrine to lay down that report of an expert witness should be brushed aside by making reference to some text on the subject without such text being put to the expert witness. In Crl.A.Nos.1527/18 & 773/19 - : 99 :- ## _**Gambhir** v._ _**State of Maharashtra** [(1982) 2 SCC 351]_ , the Apex Court dealt with a case where the Doctors who had conducted Postmortem examination could not give the time of death. Therein, the High Court, as per the impugned judgment therein, had delved deep into the evidence and had drawn its own conclusion as to the time of death and at the same time, had made some adverse and drastic comments in regard to the conduct of the Doctors and dismissed the appeal of the accused. The Apex Court held, in para 30 of _**Gambhir's**_ case supra, that in that case, the High Court had come to its own conclusion when the Doctors failed to give their opinion and that, in such cases, the Court has to draw its conclusion on the basis of the materials supplied by the expert opinion. Therein, it was further observed by the Apex Court that therein the High Court had tried to usurp the functions of an expert. Dealing with this issue, the Apex Court, in the case in _**Santosh Kumar Singh** v._ _**State through CBI** [(2010) 9 SCC 747]_ has noted that therein not even a single question was put to the expert witness as to the accuracy of the methodology or the procedure followed for DNA Profiling. The Apex Court has noted in para 68 of _**Santosh Kumar Singh's**_ case supra that the trial court has referred to a large number of textbooks and Crl.A.Nos.1527/18 & 773/19 - : 100 :- has given adverse findings on the accuracy of the tests carried out in the present case. Their Lordships of the Apex Court held that they are unable to accept such conclusions as the Court has substituted its own opinion ignoring the complexity of the issue on a highly technical subject, more particularly as the questions raised by the court had not been put to the expert witnesses. After placing reliance on the dictum laid down by the Apex Court in prior decisions, as in _**Bhagwan Das's**_ case supra _[AIR 1957 SC 589],_ _**Gambhir's**_ case supra _[(1982) 2 SCC 351]_ , etc., the Apex Court held that the trial court, in the said case also, has fallen into the very same error of critiquing the opinion of expert witnesses, by placing reliance on textbooks, without putting the versions in such expert textbooks to the expert witness. 149. In the instant case, DW-2, (the author of Ext.P-25) has been summoned as the defence witness of A-2. We have already dealt with the broad line of evidence given by DW-2, as discernible from the Chief Examination and the Cross Examination. Not even a single question has been put by any of the two accused to DW-2, on the basis of the abovesaid versions now urged by them by placing reliance on textbooks. No effort has been taken by the appellants by confronting to DW-2 that, according to them, the sample hairs taken Crl.A.Nos.1527/18 & 773/19 - : 101 :- from the deceased, which was only 25 in number, was inadequate for the testing process. Further, no questions have been put, on the basis of the abovesaid textbooks, regarding the issue of reliability or otherwise of microscopic analysis of hairs. Further, we also note that in para 8.5.3., dealing with precautions, given in page 1055 of _Dr.B.R.Sharma's textbook on Forensic Science in Criminal Investigation and Trials,_ which is stated in Clause (4) thereunder, that about 100 sample hairs should be collected, whenever possible. This may suggest that the norm, that the number of hairs should be at least 100 numbers, need not be a mandatory minimum and it has to be so collected whenever possible. Moreover, if specific questions were put to DW-2 expert, he would have been able to give his version as to why, according to him, 25 hair samples taken from the deceased was sufficient for the microscopic test analysis or whether, ordinarily, the FSLs in Kerala would insist for the mandatory minimum of 100 hairs. In the absence of dissenting and confronting such issues before DW-2 expert witness, it would be rather hazardous for this Court, which is not equipped with any scientific expertise, to adjudge on those issues of testing done by DW-2, solely on the basis of textbooks and more so, when the versions in the textbooks have not been Crl.A.Nos.1527/18 & 773/19 - : 102 :- confronted and put to the expert. 150. However, as held by the Division Bench of this Court, in _**Sudheer Babu's**_ case supra _(2013 (2) KLT 168),_ atleast it can be said that the hairs would have come from the individual in question, even if one cannot say, with full certainty, that the hair has come from a particular individual, on the basis of microscopic testing. This Court has clearly held that it may not be proper and just to find an accused guilty solely on the basis of the report, that hair samples collected from the scene of crime have resemblance with the hair collected from him, though the same may have relevance for consideration along with other ingredients subsisting against the accused. After going through the evidence of DW-2 as well as the contents of Ext.P-25 FSL report, it has to be noted that what has been stated therein, as the result of the examination, is that hairs attached on item No.2 (shawl) are human scalp hairs, which are 'similar' to item No.1 (sample scalp hairs). Even DW-2 has not stated in Ext.P-25 that the suspected hairs are identical to the sample hairs. Probably, more degree of certainity or probability could be attached to DNA Type testing. It is the unchallenged evidence of DW-2 that at the relevant time, when the testing, as per Ext.P-25, was carried out, Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** there was no DNA Type testing facility available in the Forensic Sciences Laboratories in the State of Kerala and that, the only method available was Microscopic Testing. 151. As held by the Apex Court in the decision in _**Trimukh Maroti Kirkan** v._ _**State of Maharashtra** ,_ [(2006) 10 SCC 681], where an offence takes place inside the privacy of a house and in such circumstances, where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence, as noticed therein, is insisted upon by the courts and that a judge does not preside over a criminal trial merely to see that no innocent man is punished, but that his function is also to see that a guilty man should not escape and that both are public duties. That, the law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case, etc. When the sophisticated type of DNA testing was not available at all in any of the State FSL Crl.A.Nos.1527/18 & 773/19 - : 104 :- Labs, the court will have to assess the expert evidence on the basis of the facilities available in the State. No claim has been made in Ext.P-25 that the suspect hairs and sample hairs are identical. Therefore, it may be that, without highly sophisticated methods, like DNA profiling etc, it cannot be said that the hairs in question belong to a particular individual and could not come from any other person. Of course, the text book authors would also say that, in extremely rare cases, the presence of some individual dye contamination, some extraordinary defect or disease in the hair, etc., may permit individualization of the source. 152. The clear evidence of DW-2 is that, for arriving at a conclusion that the sample hairs and suspect hairs are similar, microscopic test analysis is a very good method after DNA testing analysis, which is the next best scientific option. When the more sophisticated and precise method is not available due to various constraints, then, to mechanically brush aside the next best scientific method, which is the only method available in the State, would not be the correct judicial and judicious approach in evaluation of expert evidence. In this regard, we are bound by the abovesaid dictum laid down by the Apex Court in para 14 of _**Trimukh Maroti Kirkan's**_ Crl.A.Nos.1527/18 & 773/19 - : 105 :- _**case supra**_ , [(2006) 10 SCC 681], which has been relied on by the Apex Court in para 42 of the the decision of the Apex Court in _**Santosh Kumar Singh's case**_ supra [(2010) 9 SCC 747]., etc. As regards the contentions of the appellants, regarding DNA testing, it may also be relevant to note the following decisions : 153. In _**Sunil** v._ _**State of Madhya Pradesh**_ (2017) 4 SCC 393], it has been _inter alia_ held, in para 4, that a positive result of the DNA test would constitute clinching evidence against the accused, if the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered. 154. The Three-Judge Bench of the Apex Court in **Sunil's case** supra (2017) 4 SCC 393] also dealt with the case of DNA testing and samples of blood and so much spermatozoa under Sec.53-A of the Cr.P.C and thus, held, in para 4, that the decision in the case in _**Krishan Kumar Malik** v._ _**State of Haryana**_ , [(2011) 7 SCC 130], does not follow that failure to conduct DNA test of the sample taken from the accused or prove the report of DNA profiling as in the said case, would necessarily result in the failure of the prosecution case Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** and that, as held in para 44 of **Krishan Kumar Malik's case** supra [(2011) 7 SCC 130], Sec.53-A clearly “facilitates the prosecution to prove its case against the accused”. 155. Dealing with this aspect of the matter, a recent decision of the Apex Court in _**Veerendra**_ v. _**State of Madhya Pradesh**_ [(2022) 8 SCC 668], after considering the earlier decisions of the Apex Court in **Krishan Kumar Malik's case** supra [(2011) 7 SCC 130] and **Sunil's case** supra (2017) 4 SCC 393], has held, in para 53 thereof, that, in view of the nature of the provision under Sec.53-A of the Cr.P.C and the aforesaid case laws, their Lordships of the Apex Court are of the considered view that the lapse or omission (purposeful or otherwise), to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial, for the offence of rape, especially when it is combined with the commission of the offence of murder, as in case of acquittal only on account of such a flaw or defect in the investigation, the cause of criminal justice would become the victim. It was thus, held therein, in para 53 of **Veerendra's case** supra [(2022) 8 SCC 668] that, even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it, are Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** enough and cogent to prove the case of the prosecution. Further, it was held that, in a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour. 156. In the instant case, we are dealing with the case of the evidentiary value of the scientific results of microscopic testing regarding hair analysis, in regard to a murder case and therefore, the abovesaid dictum laid down by the Apex Court in the aforecited decisions in **Sunil's case** supra (2017) 4 SCC 393], **Veerendra's case** supra [(2022) 8 SCC 668], etc., would apply with equal or more force. In the instant case, the State Laboratories never had the technological facilities to conduct DNA testing, when the microscopic analysis was done in 2006 and therefore, there is no question of eschewing out or completely excluding from its consideration, the microscopic test report of hair analysis, as per Ext.P-25. 157. While performing judicial functions, as a High Court, we are bound by the dictum laid down by the Apex Court as in _**Bhagwan Das's**_ case supra [AIR 1957 SC 589], etc. That apart, we Crl.A.Nos.1527/18 & 773/19 - : 108 :- would also follow the words of judicial wisdom, tendered by the Apex Court, as discernible from those decisions. There are two extreme approaches on this nature. One is to completely brush aside the scientific evidence, by placing reliance on authoritative text books and the other is to reach a conclusion that the said scientific testing analysis would give 100% proof. What is required for the courts is to take the acceptable judicial and judicious approach, which is the wise middle path. Hence, on the basis of the available evidence we would hold that the suspect hairs and sample hairs are similar in nature, as discernible from Ext.P-25, even if it cannot be said that the same are identical. To give 100% benefit of legal proof on scientific test analysis may not always be the proper approach, as there could always be some probable degree of marginal errors in any scientific testing process. Moreover, as held by this Court in the decision as in _**Sudheer Babu's case**_ supra [2013 (2) KLT 168] , it may be that, to take scientific evidence as the sole basis of convicting an accused, may not be the safe and judicially prudent approach. In the instant case, we are of the view that the evidence of DW-2, based on Ext.P-25, would lead to the situation that the sample hairs and suspect hairs are similar and this would be one of the incriminating materials that can Crl.A.Nos.1527/18 & 773/19 - : 109 :- be taken into account as against the accused. There is no question of this Court holding that A-2 is to be convicted solely on the basis of the test results in Ext.P-25. ## **V. Cause of death of the victim :** 158. PW-12 (Forensic Doctor) has conducted the Post-mortem of the deceased victim and has issued Ext.P-7 Post-mortem Certificate dated 7.2.2006. He has deposed evidence regarding the details of the afore Post-mortem examination conducted by him and the details and nature of the injuries found on the body of the deceased and also, as regards the cause of death of the victim. In Ext.P-7 Post-mortem Certificate as well as in his evidence, PW-12 has mentioned about the 13 ante-mortem injuries found by him on the body of the deceased in the Post-mortem examination. 159. We do not now propose to refer to the details of the 13 ante-mortem injuries suffered by the deceased victim, as those aspects would be dealt with while discussing the culpability of the accused. 160. Both in Ext.P-7 Post-mortem certificate as well as in his evidence, PW-12 has deposed that the opinion, as to the cause of Crl.A.Nos.1527/18 & 773/19 - : 110 :- death of the victim, are consistent with death due to smothering. The above evidence of PW-12 and the contents of Ext.P-7 Post-mortem certificate are not, in any manner, disputed or challenged by both the accused. As a matter of fact, A-1 has chosen not to Cross Examine PW-12. The limited Cross Examination that PW-12 was made to face, at the instance of A-2, was as to whether bleeding from mouth can occur in death due to smothering, about which mention has already been made earlier. In other words, even A-2 has not made any challenge regarding the various steps taken in the Post-mortem examination, the details and nature of the injury suffered by the victim, as noted in Ext.P-7 and in the evidence and also regarding the crucial aspect as to the cause of death due to smothering. In other words, there is proof beyond reasonable doubt that the deceased victim has died due to smothering. a) Legal position regarding the procedure for taking sample fingerprints of the accused and chance fingerprints from the scene of occurrence for fingerprint analysis: 161. Both the appellants have taken a specific contention that the procedure for taking fingerprint measurements is specifically regulated and covered by the provisions contained in the Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** Identification of Prisoners Act, 1920 (Central Act 33 of 1920) which was brought into force w.e.f. 9.9.1920. Sec.2(1)(a) of the said Act defines ‘ _measurements_ ’ to include finger impressions and footprint impressions. Sec.2(1)(b) thereof defines ‘ _police officer_ ’ to mean an officer in-charge of a police station, a police officer making an investigation under Chapter XIV of the Code of Criminal Procedure, 1898, or any other police officer not below the rank of Sub-Inspector. Sec.2(1)(c) defines ‘ _prescribed_ ’ to mean prescribed by rules made under this Act. Sec.3 deals with ‘taking of measurements, etc. of convicted persons’, with which we are not concerned in the instant case. Sec.4 deals with ‘taking of measurements, etc. of non-convicted persons’, wherein it is stipulated that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. Sec.5 deals with ‘power of Magistrate to order a person to be measured or photographed’ and therein, it is stipulated that if a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** or photograph to be taken, he may make an order to that effect, and in that case, the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer. The first proviso deals with taking of photograph and it is not relevant in the present case. The second proviso stipulates that no order shall be made under Sec.5 unless the person has at some time been arrested in connection with such investigation or proceeding. Sec.6 deals with ‘resistance to the taking of measurements, etc.’, with which we are not concerned. Sec.8 deals with ‘the power to make rules’. It empowers the State Government to make rules. 162. Both sides have apprised that it appears that no specific rules have been framed by the State Government, in exercise of the powers under Sec.8 of the above Central Act. The appellants have strongly urged that in the instant case, the procedure prescribed under Sec.5 supra should be mandatorily followed in a case where sample fingerprints of a person who has been arrayed as an accused and who is facing investigation could be taken and that, the said provision has not been followed in the instant case and the breach of Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** the abovesaid procedure would amount to breach of a mandatory provision and hence, would be an illegality, etc. The prosecution has contented otherwise that it is well settled, that the above provision of Sec.5 is not mandatory and is only directory and non-adherence to the said procedure, in the course of investigation, will not vitiate the scientific testing done on the basis of that and that evidence, on the basis of scientific analysis, will have to be assessed by the Court, etc. 163. The Division Bench of this Court, in paras 29 to 38 of the decision in _**Dasan @ Viswambaran** v._ _**State of Kerala** [2010 SCC OnLine Ker 488]_ has considered the impact of the provisions of Secs.4 & 5 of the Identification of Prisoners Act, 1920 and as to whether non adherence to the said procedure would vitiate the fingerprint analysis test results in criminal trials, etc. Therein, the Division Bench has referred to _**Mohd. Aman** v._ _**State of Rajasthan**_ [AIR 1997 SC 2960] wherein, in para 8 thereof, it has been _inter alia_ held that it is true that as per Sec.4 thereof, police is competent to take finger-prints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence, it was eminently desirable that they were taken before or under the order of a Magistrate. Further, in Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** ## _**Mahmood** v._ _**State of Uttar Pradesh**_ [AIR 1976 SC 69] _,_ the Apex Court has noted, in para 16 thereof, that in the facts of the case, the specimen finger-prints of the appellant were not taken before or under the order of a Magistrate as per Sec.5 and this could be another suspicious feature of the conduct of investigation and the prosecution has not been able to explain as to why the Magistrate was kept out of the picture. Construing the abovesaid provisions as well as the case laws in the subject, the Division Bench, in para 34 of _**Dasan's**_ case supra [2010 SCC OnLine Ker 488] _,_ has held that Sec.5 does not control, guide or restrict the power of an investigating officer to take finger impressions of an arrestee who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards. It will be idle to expect the police officer to run to the Magistrate every time to take finger impressions of such an arrestee. If the arrestee refuses to co-operate, of course, the investigating officer can make an application under Sec.5 and under judicial orders ensure that his finger impressions are taken. If any person, other than an arrested accused, does not co-operate to give finger impressions then also the police officer can seek directions from the learned Magistrate under Sec.5. It was held that it will be a Crl.A.Nos.1527/18 & 773/19 - : 115 :- totally incorrect principle of law, that the investigating officer must get the permission of the Magistrate to take specimen finger impressions of an arrestee under Sec.4. It was also held that the case laws of the Apex Court is to the effect that it will be advisable that the investigating officer may get permission of the Magistrate before taking specimen impressions of the accused and that it does not mean that permission or intervention of the Magistrate is necessary to enable or justify taking of finger impressions from accused persons and that non-obtaining of permission/orders of the Magistrate under Sec.5 cannot affect the legal validity of the drawal of specimen impressions of the accused, in exercise of his powers under Sec.4 of the said Act. Further, it was held, in para 35 thereof, that as a principle to be safely followed in all case, mahazers must be prepared and the same must be done in the presence of independent witnesses to obviate or eliminate any possibility of actual prejudice or even complaint of prejudice. It was further held, in para 36 thereof, that the mere fact that mahazar is not prepared, does not, by itself, vitiate the specimen impressions nor does the inadequacy/ impropriety, in not preparing mahazar, affect the validity of the evidence tendered with respect to such materials collected. Crl.A.Nos.1527/18 & 773/19 - : 116 :- 164. The Division Bench, in paras 37 & 38 of _**Dasan's**_ case supra [2010 SCC OnLine Ker 488] _,_ further referred to the dictum laid down by the Apex Court in the decisions as in _**State of Rajasthan**_ _v._ _**Kishore**_ [AIR 1996 SC 3035] _,_ _**Bikau Pandey** v._ _**State of Bihar**_ [AIR 2004 SC 997] _,_ etc. wherein it has been held that, the mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution cases nor can trust worthy and reliable evidence be cast aside to record acquittal on that ground. Further that, the irregularities or illegalities in the conduct of investigation that is of no consequence, if the essential core of the prosecution case does not arouse suspicion in the minds of the court, etc. 165. In _**Dasan's**_ case supra, the Division Bench, thus, repelled the contentions of the accused, that the fingerprint collection process is vitiated and illegal, as prior permission of the learned Magistrate, under Sec.5 of the Act, was not obtained or on account of non preparation of mahazar for collection of such fingerprint impressions. ## 166. In the decision in _**Prakash** v._ _**State of Karnataka**_ _[(2014) 12 SCC 133]_ it has been _inter alia_ held that, to avoid any Crl.A.Nos.1527/18 & 773/19 - : 117 :- suspicion regarding the genuineness of the fingerprint so taken or resort to any subterfuge, the appropriate course of action for the investigating officer was to approach the Magistrate for necessary orders as per Sec.5 of the Identification of Prisoners Act, and that, as held in _**Mohd. Aman's**_ case supra [AIR 1997 SC 2960, para 8] _,_ to avoid the allegations of the possibility of the police fabricating evidence, it would be eminently desirable that fingerprints were taken under the orders of a Magistrate as per Sec.5. 167. In _**Prakash's**_ case supra, the negative of the photograph of the deceased's bank passbook, containing the alleged fingerprint of the accused, was produced in the court but no positive print or photograph was developed from the negative and the photographer, who was examined in the court, could not say if the fingerprint in the negative was that appearing on the passbook and on facts, it was found that there was nothing in the negative of the photograph to relate it to the passbook and the testimony, with regard to the fingerprints of the accused on the passbook, was held to be inconsequential. So also, how the sample fingerprint came into existence was not deposed to, even by the I.O. Moreover, chance prints found on the plastic cover or the photograph taken was neither Crl.A.Nos.1527/18 & 773/19 - : 118 :- produced before the Court, etc. Hence, it was held that the entire exercise of the fingerprint identification of the accused was shrouded in mystery and thus could not be given any credence. It is in the light of these aspects that the Apex Court has held that such evidence, relating to fingerpint impressions, cannot be taken into account for the conviction of the accused therein. 168. In para 36 of the decision in _**Ashish Jain** v._ _**Makrand Singh & Ors.**_ [(2019) 3 SCC 770], the Apex Court has held that, as already affirmed in _**Sonvir** v._ _**State (NCT of Delhi)**_ [(2018) 8 SCC 24], Sec.5 of the Identification of Prisoners Act is not mandatory but is directory, and affirms the bona fides of the sample-taking and eliminates the possibility of fabrication of evidence. 169. In para 45 of the decision in _**Mohan Lal & Anr.** v._ _**Ajit Singh & Anr.** [(1978) 3 SCC 279],_ the Apex Court referred to the textbook of B. L. Saxena's “ _Identification of Handwriting, Disputed Documents, Finger Prints, Foot Prints and Detection of Forgeries_ ”, Walter R. Scott's “ _Fingerprint Mechanics_ ” and M. K. Mehta's “ _The Identification of Thumb Impressions and the Cross-Examination of Finger Print Experts_ ” and noted that, while referring to the old Crl.A.Nos.1527/18 & 773/19 - : 119 :- practice of looking for a minimum of 12 identical characteristic details, B. L. Saxena has admitted that the modern view is that six points of similarity of pattern are sufficient to establish the identity of the fingerprints. Walter Scott has stated that, as a matter of practice, most experts, who work with fingerprints, constantly satisfy themselves as to identity with eight or even six points of identity. M.K.Mehta has also stated that, in the case of blurred impressions, the view of some of the Indian experts is that if there were three identical points, they would be sufficient to prove the identity. In para 46 of _**Mohan Lal's**_ case supra, it was held that the majority of fingerprints found at crime scenes or on crime articles are partially smudged and it is for the experienced and skilled fingerprint expert to say whether a mark is usable as fingerprint evidence and similarly, it is for a competent technician to examine and give his opinion whether the identity can be established and if so, whether that can be done on eight or even less identical characteristics in an appropriate case. Further, it has been held therein, that the opinion of the Director of the Finger Print Bureau in that case was clear and categorical and has been supported by adequate reasons. Hence, the Apex Court held, in para 46, that there is no hesitation in accepting it Crl.A.Nos.1527/18 & 773/19 - : 120 :- as correct. 170. Further, it has been held in para 20 of _**Prem Sagar Manocha** v._ _**State (NCT of Delhi)** [(2016) 4 SCC 571]_ that expert evidence needs to be given a closer scrutiny and requires a different approach and that, the opinion given by an expert and a professional could be with a caveat regarding his inability to form a definite opinion without the required material. Further that, the duty of an expert is to furnish the court his opinion and the reasons for his opinion, along with all the materials. It is for the court thereafter to see whether the basis of the opinion is correct and proper and then form its own conclusion. But, that is not the case in respect of a witness of facts. As facts are facts and they remain and have to remain as such forever. The witness of facts does not give his opinion on facts, but presents the facts as such. However, the expert gives an opinion on what he has tested or on what has been subjected to any process of scrutiny and the inference drawn thereafter is still an opinion based on his knowledge, etc. 171. After referring to _**Prem Sagar Manocha's**_ case supra, the Division Bench, in para 23 of _**Biju Kumar's**_ case supra _[2022 (1) KHC 463 (DB)]_ , has held that testimony of an expert is at best an Crl.A.Nos.1527/18 & 773/19 - : 121 :- opinion, which has to be given due weight by the Court, but the conclusion has to be arrived at by the Court itself, based on the opinion of the expert and in the facts of the case, the court was concerned with whether there was any material before the Court to arrive at a conclusion, other than the report of the fingerprint expert, which was found to be rather sketchy. It was held that the conclusion of the Court has been arrived at, on the basis of the opinion of the expert regarding the similarities and how the chance print can be treated as identical to the sample taken from the accused and the satisfaction so arrived at by the Court cannot be substituted with the opinion of the expert. 172. So also, it has been _inter alia_ held, in para 28 of _**Biju Kumar's**_ case supra, that even if the sample fingerprint taken by the I.O. was legally permissible, the sample should have been transmitted to the Court with a property list and the chance print as also the sample print ought to have been sent to the Fingerprint Bureau through the Court, with a forwarding note. This procedure was not followed in the case of chance print in the said case also. Therein, PW-15 had taken the chance print developed from the lock and the photograph taken of the same and on receipt of the sample print, has Crl.A.Nos.1527/18 & 773/19 - : 122 :- compared it and sent the report to the Inspector of Police. As per Ext.P-15 therein, the report merely stated that, on comparison, the chance print developed from the scene of crime is identical to the left ring finger impression of the accused. The Division Bench held therein that the developed chance print, the sampe print and the photographs should have been produced before the Court and further, the specific similarities, which persaudes the expert to form an opinion, has to be detailed, for the Court to compare the prints and come to a conclusion. The procedure followed is grossly inadequate to inspire confidence of the Court and thus, in the facts of the case, the report in that case was found to be inadmissible in evidence and it was held that the trial court went wrong in relying on the evidence of the fingerprint as incriminating circumstance. 173. Dealing with the allegation of the accused, regarding the fabrication of chance finger prints, the Three Judges' Bench of the Apex Court, in para 82 of the decision in _**Shankaria** v._ _**State of Rajasthan**_ [(1978) 3 SCC 435], has inter alia held that, as rightly observed by the High Court, fabrication of the fingerprints, in the circumstances of the case, was difficult without super-imposition and further that, it is impossible to believe that an investigator, of the Crl.A.Nos.1527/18 & 773/19 - : 123 :- status of a Superintendent of Police, would go to the length of causing substitution of the fingerprints of the accused in place of the original finger-print of another person on the article. Dealing with the contention of the accused, that the provisions of Sec.5 of the Identification of Prisoners Act is mandatory, the Apex Court has held, in paras 83 to 85 of the decision in **Shankaria's case supra** [(1978) 3 SCC 435], that the said contention, that it was incumbent on the police to obtain the specimen thumb-impressions of the accused before a Magistrate in terms of Sec.5, is misconceived, as the Police were competent, under Sec.4 of the Act, to take the specimen fingerprints of the accused, and this they have done and therefore, it was not necessary for them to obtain an order from the Magistrate for obtaining such specimen fingerprints and accordingly, it was held that the presence of fingerprints of the accused on the article, from which cash was stolen, at the time of occurrence, was held to be a tell-tale circumstance, pointing towards the guilt of the appellant. 174. As regards the evidence based on foot-moulds the Apex Court, in para 88 of the decision in **Shankaria's case supra** [(1978) 3 SCC 435], has held that the science of identification of foot-prints and foot-moulds is not a developed science, and track evidence, by Crl.A.Nos.1527/18 & 773/19 - : 124 :- itself, may not be deemed sufficient to carry conviction in a criminal trial, yet, it is a relevant circumstance which, taken into account along with the other evidence, may reinforce the conclusion as to the identity of the culprit and in the said case, the other evidence per se, was sufficient to fix the identity of the accused with the crime and the evidence of similarity of the foot-moulds taken in conjunction with the circumstance that, if at the scene of occurrence there were barefoot prints, which appear to be of one person, does lend further assurance to the other evidence available. 175. PW-17 Inspector of Police has given evidence that, as directed by him, the specimen fingerprints of the accused have been collected by his subordinate on 7.2.2006 after 9.30 PM and those specimen fingerprints were forwarded to the fingerprint expert. The requisition and receipt of specimen fingerprints of the accused are mentioned in Ext.P-8 report dated 23.2.2006, issued by PW-23, on behalf of the Single Digit Fingerprint Bureau, Idukki. 176. PW-13 Finger print expert has given evidence that she has inspected the scene of crime on 7.2.2006 and had developed chance fingerprints from the scene of occurrence and they were photographed by one Sri.B.P.Sasi, the police photographer. PW-23 Crl.A.Nos.1527/18 & 773/19 - : 125 :- (Supervisor of PW-13) has given evidence that, as authorized by him, PW-13 (Shylaja), who is his subordinate, had gone to the crime scene and had taken chance prints and the photographs of chance prints were taken by one Sri.B.P.Sasi, the Police photographer. Further, PW-23 has also stated that the sample fingerprints of the accused persons were forwarded by PW-17 (I.O.), which was received by the Fingerprint Bureau on 14.2.2006. Further, Ext.P-5 Scene Mahazar dated 7.2.2006 has been proved by PW-17 (I.O.) and PW-10 (attesting witness). Ext.P-5 Scene Mahazar clearly speaks about the lifting/recovery of chance prints from the scene of occurrence and the details are as follows: - (i) It is stated in the 8[th] line from the bottom of page 4 of Ext.P-5 that 4 chance prints could be collected from the emergency lamp cover found in the crime scene. - (ii) It is mentioned in the 12[th] line from the top of page 6 of Ext.P-5 that chance prints have been collected from the frame on the left side of the Alamara in the room. (iii) It is stated in the 17[th] line from the top of page 6 of Ext.P-5 that chance fingerprint has been collected from a small jewel box. (iv) It is also mentioned in the 11[th] line from the top of page 11 of Ext.P-5 scene mahazar that fingerprint has been recovered from a powder tin found in the scene. (v) Further, it is stated in the 10[th] line from the top of Crl.A.Nos.1527/18 & 773/19 - : 126 :- page 14 of Ext.P-5 that chance prints have been collected from a liquor bottle with a lid bearing label no.7911. 177. At the outset, it has to be noted that, it appears from the evidence of the prosecution that the I.O. has not applied for and secured orders of the learned Magistrate, under Sec.5 of the Identification of Prisoners Act, for collection of the specimen fingerprints of the accused persons in this case. So also, both the sample fingerprints and the chance fingerprints were not forwarded to the Court concerned along with the property list or forwarding note, with the request to get it tested through the Fingerprint Bureau of the FSL. No mahazar has been prepared in respect of the collection of both the sample fingerprints of the accused and the chance prints from the scene of occurrence. However, Ext.P-21 property list, which has reached the court on the next day itself (8.2.2006), speaks about various articles, including the emergency lamp cover, small jewel box of K.P.Varkey jewellery, powder tin, liquor/brandy bottle, etc. 178. At the outset, it has to be noted that, though Ext.P-5 scene mahazar speaks about 2 emergency lamps, one seen in the hall and another in the bedroom, no mention is made in Ext.P-5 scene mahazar that chance fingerprints have been collected from one such Crl.A.Nos.1527/18 & 773/19 - : 127 :- emergency lamp. So also, Ext.P-21 property list does not mention about the emergency lamp. However, for a clear understanding, we would note that the chance fingerprint recovered from the emergency lamp cover is mentioned in Ext.P-5 scene mahazar and the emergency lamp cover is mentioned in Ext.P-21 property list as well as in Ext.P-5 scene mahazar. [We are saying about the absence regarding the mentioning of the recovery of chance fingerprints from the emergency lamp and about the absence of mentioning of lifting of chance fingerprints from the emergency lamp cover in Ext.P-5 scene mahazar as well as the omission to mention about the emergency lamp in Ext.P-21 property list, as the evidence of PW-13, after the remand trial, was that it was the chance fingerprint recovered from the emergency lamp cover that tallied with the specimen fingerprints of A-1. The impact of these aspects on the evidentiary value of PW-13, that chance fingerprints recovered from the emergency lamp (mentioned as K-1 in the evidence of PW-13) with the sample fingerprint of A-1, referred to as S-1, would be dealt with later on. 179. Going by the evidence of PW-13 and Ext.P-27 detailed report and Ext.P-27(a) photographs of the fingerprints proved by her, it appears that three chance prints developed from the crime Crl.A.Nos.1527/18 & 773/19 - : 128 :- scene, namely that from an emergency lamp, a wooden almara and a brandy bottle, were found identical with the left thumb, right index & right thumb impressions of A-1. So also, the evidence of PW-13 is that three chance prints developed from the crime scene of the three articles mentioned therein, i.e. emergency lamp cover, a powder tin and a brandy bottle were found identical with the left thumb and left little finger impressions of A-2. These aspects are clear from a reading of the bottom portion of page 1 and top portion of page 2 of Ext.P-27 detailed report. Thus, the three chance prints taken from each of the three articles, claimed to be in relation to A-1 are (i) emergency lamp (ii) wooden almara (iii) brandy bottle. Whereas the three chance prints taken from each of the three articles, mentioned in relation to A-2 are (i) emergency lamp (ii) powder tin (iii) brandy bottle. Out of these six chance prints mentioned above, only the chance prints said to be taken from the emergency lamp in relation to A-1 is not mentioned in Ext.P-5 scene mahazar supra. So also, all the abovesaid six articles supra, other than the emergency lamp and almirah, are mentioned in Ext.P-21 property list, which has reached the Court on the next day. The non forwardal and non mentioning of the Almirah in Ext.P-21 property list is quite understandable, as it is highly Crl.A.Nos.1527/18 & 773/19 - : 129 :- unnecessary or rather impractical to forward an almirah, from which chance print has been taken, to the Court. The practical way in that regard is to mention about the same. Mahazar has been prepared for all the chance prints, except the one said to be recovered from the emergency lamp. 180. After having due regard to these aspects, it has to be borne in mind that Secs. 4 & 5 of the Identification of Prisoners Act, 1920 deals only with sample fingerprints being collected from arrestees/accused persons. It is already well settled that the procedure mentioned in Sec.5, for getting prior permission from the learned Magistrate, for getting specimen fingerprints of an accused/arrestee, is not mandatory but only directory. But, it gives more credibility and believability to the process of collection of sample fingerprints of the accused persons. So also, the process of taking chance fingerprints from the scene of occurrence by the fingerprint experts is not, in any manner, regulated by the provisions of the abovesaid Act. The norm for preparing mahazar for recovery of chance fingerprints as well as mahazar for recovery of sample fingerprints of the accused and the photographs of chance fingerprints, etc. to the Court, with the forwarding note and property Crl.A.Nos.1527/18 & 773/19 - : 130 :- list, etc., with a request to the Court for orders for getting it tested by Fingerprint Bureau, etc., are all judicially crafted norms to add credibility and believability to the abovesaid process. PW-17 (I.O.), PW-13 (Fingerprint expert), PW-23 (Supervisor of PW-13) etc., have all given evidence that the investigating agency had collected and directly forwarded the sample fingerprints of both the accused to the Fingerprint Bureau, which has reached the Fingerprint Bureau on 14.2.2006. 181. A suggestion is seen to have been put by A-1 that such sample fingerprints were not taken from him. No such suggestion was seen made by A-2. Further, the specific case of both the accused is that the Police had planted false evidence, by compelling them to put their fingerprints in certain objects, while the persons were in the custody of the Police on 7.2.2006 . The prosecution evidence has strongly rebutted the same. However, what is relevant in this context is that when the accused persons themselves have a case that their fingerprints were forcefully placed in certain objects, to make it appear as if their chance prints could be falsely used against them, then no prudent officer would use sample fingerprints of a person other than the accused person concerned. We are only saying so to Crl.A.Nos.1527/18 & 773/19 - : 131 :- hold that the abovesaid suggestion of A-1, as if not even sample fingerprints were collected from them by the Police, as stated by PW-17 etc., appears to be a contradiction in terms of the very defence projected by the accused persons. Further, PW-17, PW-13 & PW-23 have given evidence regarding taking of sample fingerprints from the accused persons on 7.2.2006 and forwarding it to the Fingerprint Bureau. These aspects are also referred to in Ext.P-8. In that regard, it may also be pertinent to bear in mind the observations of the Apex Court, in para 82 of _**Shankaria’s**_ case supra [(1978) 3 SCC 435, p. 457], that it is rather too farfetched or impossible to believe that an investigator, of the status of a high ranking Police official, would go to the length of causing substitution of fingerprints of the accused in the place of original fingerprints of another person. Hence, we are of the view that the evidence adduced by the prosecution would lead us to conclude that PW-17 has collected the sample fingerprints of both the accused persons and has forwarded the same to the Fingerprint Bureau for expert analysis. Ext.P-5 scene mahazar clearly speaks about recovery of all chance fingerprints, other than the one recovered from the emergency lamp. All the materials from which the chance prints have been collected, as per Ext.P-5, are also clearly Crl.A.Nos.1527/18 & 773/19 - : 132 :- mentioned in Ext.P-21 property list, other than the emergency lamp and the almirah. PW-13 & PW-23, who are experts at the Fingerprint Bureau, have clearly given evidence that, based on the authorization of PW-23 (supervisor), chance finger prints were collected from the scene of occurrence by PW-13 and the same has been photographed by the Police Photographer. The fingerprint experts are technical experts belonging to the Fingerprint Bureau and there is nothing to disbelieve the abovesaid evidence offered by them. Of course, if the materials were sent to the Court and the testing was done under the orders of the Court, the same would have added credibility and believability. Despite non adherence to the said norm, we find cogent and convincing evidence given by the prosecution witnesses, as above, to establish the forwardal of the chance fingerprints, taken by none other than the fingerprint expert from the scene of occurrence and who had in turn forwarded it to her own department, namely the Fingerprint Bureau. The only exception in that regard may be in relation to the chance fingerprint said to be recovered from the emergency lamp, as the same is not mentioned in Ext.P-5 scene mahazar. So also, the said article (emergency lamp) is not mentioned in Ext.P-21 property list, though the said article has been mentioned Crl.A.Nos.1527/18 & 773/19 - : 133 :- in Ext.P-5 scene mahazar. The impact of that aspect would be dealt with later. Suffice to say, we are of the view that, despite non adherence to the provisions contained in Sec.5 of the supra Act and despite non adherence to the norm for forwardal of materials for fingerprint tests to the Court, etc., there is nothing to disbelieve the clearly established facts regarding the taking and forwardal of the sample fingerprints of the accused as well as the chance fingerprints recovered from the scene of occurrence by the fingerprint expert. - (b) Probative value of the expert evidence tendered by PW - - - 13 & PW 23, on the basis of Exts.P 8 & P 27 series 182. In this regard, it may be noted that the quality of the expert evidence tendered in this case, prior to the remand was broadly similar to the scenario considered by the Division Bench of this Court in _**Biju Kumar** v._ _**State of Kerala**_ [2022 (1) KHC 463 (DB)]. Therein, not only was the norm of forwarding the sample and chance finger prints to the Board, etc., not done, but also, the report, as per Ext.P-15 therein, merely stated that, on comparison, the chance prints developed from the scene of crime was identical to the sample finger impressions of the accused. So Crl.A.Nos.1527/18 & 773/19 - : 134 :- also, the developed chance print, sample print and the photographs were not produced before the court. In this case also, prior to the remand, Ext.P8 herein only stated the conclusions of the experts of the Finger Print Bureau about the similarity of the finger prints but has never given any detailed reasonings based on any detailed report. So also, the photographs of the developed chance print and sample prints were not produced before this Court. However, in the first appellate round, this Court had remanded the matter to the Sessions Court, wherein, _inter-alia_ , it was directed that the author of Ext.P8 should be examined and the detailed report, which was assured to be furnished, as per Ext.P-8, should be called for and evidence should be taken, as the investigating officer had not deposed that the sample finger prints of the accused were collected by them, etc. After the remand, PW-13 has been recalled and re-examined and PW-23, who is the signatory to Ext.P-8, has been examined and so also the detailed report has been proved through PW-13. Further, the developed Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** photographs of the sample finger prints and the chance finger prints, have also been marked and proved as Ext.P27(a) series. 183. The appellants have taken a contention that, this Court, while ordering the remand, had specifically directed that the detailed examination report, that was assured to be given, as referred to in Ext.P-8 has been called for and that what has been marked through PW-13 is Ext.P-27, which is said to be a detailed examination report dated 16.04.2018. It is contended by the accused that Ext.P27 dated 16.04.2018 is a newly prepared report, which was prepared about 12 long years after the finalisation of Ext.P-8 initial report dated 23.02.2006 and that it cannot be said to have been prepared contemporaneously or immediately after the issuance of Ext.P-8 and that there cannot be any reliance placed on such a newly drafted report, etc. To this aspect, PW-13 has stated that after the issuance of Ext.P-8 dated 23.02.2006, she had prepared and finalised a detailed examination report, just prior to October, 2006 and she had forwarded the same through her office head to the investigating Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** officer and that the despatch register maintained in their office would show that. Further that, after the remand, her designation and station were changed and she was under the impression that her new designation and station should be shown in the report and therefore, she has prepared Ext.P27 dated 16.04.2018, fully on the basis of the previous detailed report prepared in October, 2006, and that, the only change she has made was her new designation, etc. Further, she has stated that the copy of the detailed report, prepared in October, 2006, was kept in her office. Further, PW-23, who is the supervising officer, has also denied the suggestion that the detailed report was never prepared. It was the specific suggestion of the defence that PW23 has not produced any document to show that PW-13 has not submitted such a report before him. He has stated that those aspects are mentioned in routine file No.12 SOC/06/IDK, mentioned in Ext.P8. Further, he has deposed that the detailed report will establish the identity of the finger print. When it was specifically queried by the defence, as to what exactly is the date Crl.A.Nos.1527/18 & 773/19 - : 137 :- of the detailed report, he said that he will have to go through the despatch register of that office and that, to another suggestion that no such earlier report is before the court, he has answered that it is not his fault and that he has retired. Further, he has stated that he has retired from service on 30.06.2008. To another suggestion of the defence that the detailed report was prepared only on 16.04.2018, after the remand from the court, he has specifically answered that the expert report dated 16.04.2018 (Ext.P-27) is a copy of the original expert opinion, furnished earlier. To yet another suggestion that the present detailed report, as per Ext.P-27, is a false one, he has denied the said suggestion. Further, he has stated that the norms for evaluation of the expert opinion are discernible from the said expert report dated 16.04.2018. 184. We have meticulously gone through the evidence of PW-13, PW-23 and also the contents of Ext.P27. A close reading of Ext.P27 report would show that the said report deals with the expert analysis, in respect of the specimen finger prints and Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** chance finger prints collected in the course of the investigation of this case in the year 2006. 185. The intense cross-examination to which both PW-13 & PW-23 have been subjected to on these aspects, has not been able to successfully show that the contents of the detailed report in Ext.P-27 is the one which is prepared for the first time and that too after the lapse of 12 long years. The version of PW-13 & PW-23 that the earlier report was prepared in October, 2006, and was duly forwarded to the investigating agency and that, the present report is only a replication of the earlier report, but only showing the change of the designation of PW-13, etc., appears to have a strong ring of truth and there is nothing to disbelieve the said version. However, it appears that, PW-13 was under the unnecessary confusion that the above said report, to be given after the remand, should show her present designation and station, etc., and this would have prompted her to replicate the contents of the earlier report, but showing her changed designation and station, etc. Further, the evidence given by the Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** above witness would show that the original of the earlier detailed report prepared in October, 2006, was forwarded through the head of the office to the investigating agency and that their official despatch register would show this and what was retained thereafter was only a copy of the said earlier report. Since what was kept in the office of PW-13 was only a copy of the earlier report, it is quite reasonable for them to think that what should be submitted is a report signed in original by PW-13 and that forwarding the copy of the earlier report may not suffice. Such an approach appears to be correct and in that process, PW-13 would have thought that replicating the earlier report, by using the copy and giving without any change and showing the earlier date and signing it after 12 years may amount to conveying a wrong impression before the court. So, these aspects could be a good reason for any officer to have prepared the old report afresh, bearing a new date and showing the new designation, as the original of the earlier report was not with them. So, though the explanation given by PW-13, by itself, may not be fully Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** tenable, the aspects we have mentioned hereinabove, would have prompted any reasonable officer to have taken recourse to the above procedure. Hence, we are not in a position to hold that the court should not look into Ext.P27 and the contra contentions of the accused will stand repelled. 186. Yet another objection has been raised by the defence that Exts.P-8 & P-27 are not legally admissible in evidence, as, in substance, the contents of those documents are nothing but statements given by PW-23 & PW-13, respectively, to PW-17 investigating officer, as envisaged in Sec.161 of the Cr.P.C. and hence, its admissibility is hit by Sec.162 of the Cr.P.C. The basis of this contention of the defence is that a perusal of Ext.P8 & P27 would reveal that they are communications issued by PW-23 & PW-13, respectively, addressed to the Inspector of Police concerned/investigating officer (PW-17) in reply to the requisition for the finger print testing. 187. These defence objections are strongly opposed by the prosecution. After hearing both sides, at first, it may appear that Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** the abovesaid contention is attractive but on deeper analysis, the same is not of any substance. True that, Exts.P8 & P27 are communications issued by the above officials of the finger print bureau, addressed to the investigating officer concerned/ Inspector of Police. 188. It is to be borne in mind that a perusal of the contents of Exts.P8 & P27 would reveal that they are containing the conclusion of the finger print analysis in Ext.P8 and also contains various evidentiary aspects of the steps in the test process, the detailed reasonings and the basis of the conclusions of the finger print test analysis, as can be seen from Ext.P27. 189. In substance and essence, documents, as in Exts.P-13 & P-27, are in the nature of reports of technical experts/scientific experts, as in the case of reports conveyed through Exts.P-7, P- 24, P-25, etc. 190. In ordinary practice, we have seen that, Ext.P-7 postmortem cerificate, issued by the forensic doctor, Ext.P-24 chemical analysis test report, issued by the Forensic Science Crl.A.Nos.1527/18 & 773/19 - : 142 :- Laboratory, Ext.P-25 report of hair analysis, etc., issued by the Biology Wing of the Forensic Science Laboratory, etc., are the respective expert reports of the expert agencies concerned, in relation to various scientific/technical test analysis done by those respective expert agencies like the Forensic Medicine Department, Chemical analysis and Biology wing of the Forensic Science Laboratory, etc. 191. A perusal of Ext.P7 post-mortem certificate would show that, ordinarily, the forensic medicine department, after getting the requisite requisition for conducting the autopsy process, will conduct the post-mortem examination and issue a report regarding the post-mortem, by styling it as a post-mortem certificate. We are told that, thereafter, the same may be either collected by the investigating agency from the Government hospital concerned or it may be forwarded by the hospital authorities to the investigating agency. 192. In post-mortem certificate, as in Ext.P7, ordinarily, we are told that the Forensic Medicine Department will not address Crl.A.Nos.1527/18 & 773/19 - : 143 :- it as a communication issued by them to the investigating agency and it is styled as a post-mortem certificate. 193. A perusal of Ext.P-25 would also disclose that, since a requisition for the hair and nail clipping analysis, etc., has been made through the court, the Biology wing of the Forensic Science Laboratory has sent the contents of their analysis report, addressed to the court. So also Ext.P-24, issued by the Chemical wing of the Forensic Science Laboratory, has been addressed to the court, as the requisition has been made through the court. 194. Where the requisition is made by the court and the report is addressed directly to the court, as in Exts.P-24 & P-25, or where the post-mortem certificate or analysis report, as Ext.P27 is styled only as a post-mortem certificate, and it is not exclusively addressed to the investigating agency, etc., then the above contention that they are statements made to the police, in terms of Sec.161 Cr.P.C., will not be available at all. In pith and substance, Exts.P-8 & P-27 are also reports of the expert Finger Print Bureau and it appears that, since the requisition was not Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** made through the court and the requisition was given by the investigating agency, as can be seen from Ext.P-8, etc., the practice appears to be that the finger print bureau personnel will sent their expert analysis report styled as a letter, addressed by them, to the investigating officer. 195. This practice does not appear to be a wholesome one. The correct approach, as in the issuance of post-mortem certificate, would be to style it as a report of the Finger Print Bureau, where the Finger Print Bureau may either instruct the investigating agency to come to their office and collect them, after getting the receipt or can sent their expert report, styled as a report, along with a separate brief covering letter, for the purpose of communication. 196. Therefore, the problem has occurred only on account of not following the proper form in the manner of communicating the expert reports as in Exts.P-8 & P-27. If Exts.P-8 & P-27 had been sent, styled as the report of the Finger print Bureau, along with a separate covering letter, then, this Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** contention will not be available at all, as the covering letter and the expert reports are two separate documents. Therefore, the present contention is only on the basis of the issue that arose out of the improper use of form and so, in substance, we do not find anything improper or illegal. 197. The matter can be seen from yet another perspective, inasmuch as, the contents of Exts.P-8 & P-27 respectively, are segregable, inasmuch as, one can easily segregate the communication part of the same addressed to the investigating officer and the substantial part of the report. 198. Merely because there is improper form in the manner of communicating the expert report of the Finger print Bureau, as in Exts.P-8 & P-27, it will not lead to a situation that the same would amount to statements made by the Finger print Bureau personnel to the investigating officer, as envisaged in Sec.161 Cr.P.C., so as to attract the bar in terms of Sec.162 of the Cr.P.C., merely because the top portion of the said document is in the form of a letter issued by the Finger print Bureau to the Police. Crl.A.Nos.1527/18 & 773/19 - : 146 :- Hence, the abovesaid contention of the appellants cannot be countenanced. However, we would observe that the Director General of Prosecution may look into these aspects and may issue necessary advice and instructions to the Finger print Bureau and the authorities concerned to ensure that the manner and form of communicating the expert report of the Finger print Bureau, is not made in the manner, as done in Exts.P-8 & P-27. Steps may be considered so that such reports of the Finger print Bureau may be styled as the report of the analysis of the Finger print Bureau and either the Investigating Officer may be instructed to come to the office of the Finger print Bureau to collect it or the same may be sent by post to the investigating officer, along with a separate covering letter. (c) Probative value of the finger print expert evidence given by - - - PW 13 & PW 23, as against A1 & A2 on the basis of Exts.P 8 & - P 27 series. 199. At the outset, it has to be noted that Ext.P-8 only shows conclusions for the expert opinion and it does not show Crl.A.Nos.1527/18 & 773/19 - : 147 :- any detailed reasonings for arriving at the said conclusions and moreover, it is stated therein that the detailed report will be subsequently given. Hence, while evaluating the evidence of PW- 13 & PW-23, we will have to focus more on the contents of Exts.P-27 & P-27(a) series. 200. We initially take up the case of A1. PW-13, in her evidence, as well as in page 1 of Ext.P27, has stated as follows:- _“3 chance prints (developed from the scene of crime articles, an emergency lamp, a wooden almirah and a brandy bottle) were found identical with left thumb, left index and right thumb impressions of A1.”_ As regards A-1, the sole sample finger print of A-1 is shown as ‘S’ and apparently, the sole chance finger print, claimed to be identified against him, is shown as ‘K1’. 201. In her cross-examination by A-1, a specific question was put to her that, to establish the identity of the chance print, _vis-a-vis_ the sample print of A-1, PW-13 has chosen only one chance print and she (PW-13) has fully stated that one chance print is enough. Yet another question was then put to her that the chance finger print, said to have been identified as against A1 Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** and denoted as K1, was collected from the emergency lamp. To this, PW-13 has categorically and clearly admitted in the affirmative and further stated that ‘K1’ was indeed collected from the emergency lamp. Yet another question was put to her by A-1 that she has established only the chance print collected from the emergency lamp as ‘K1’, she (PW-13) has answered that the other chance prints developed from the almirah and the brandy bottle can be examined by any expert. It is the categorically admitted case of PW-13 that her detailed examination report, as per Ext.P-27, as against A1, is solely on the basis of comparing the chance finger print, as per ‘K1’, which is collected from the emergency lamp and the same was analysed _vis-a-vis_ , the sample finger print of the accused, denoted as ‘S’. Further, she has also clearly admitted that the other two chance prints, i.e., collected from the almirah and the brandy bottle, has not been examined by her, as the same can be examined by any other expert. In other words, though, in chief examination and in the bottom portion of page 1 of Ext.P-27, PW-13 has stated that the Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** three chance prints identified, _vis-a-vis_ , A-1 are those from an emergency lamp, a wooden almirah and a brandy bottle, she has analysed only one chance print, _vis-a-vis_ taken from the emergency lamp. 202. Further, PW-13 has clearly deposed in evidence as to the similarities of ‘K1’ chance print, vis-a-vis, ‘S’ sample print on eight clear parameters, which are the same in parameters as mentioned in pages 2 & 3 of Ext.P27 detailed report. The said eight points of identity in both the prints are as follows:- **1.** Point no.1 is a ridge ending to the left **2.** Point no 2 is a ridge ending to left above and to the left of point no. 1 with three ridges intervening. **3.** Point no. 3 is an upward bifurcation to right above point no. 2 with no ridges intervening. **4.** Point no. 4 is an upward bifurcation above and to the right of of point no. 3 with no ridge intervening. **5.** Point no. 5 is a short ridge above point no. 4 with no ridge intervening. **6.** Point no. 6 is a downward ridge ending to the right of point no. 5 with one ridge intervening. **7.** Point no. 7 is a downward bifurcation, above point no. 6 with one ridge intervening **8.** Point no. 8 is a fork towards right to the right of point no. 7 with two Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** ridges intervening. 203. We have also examined the developed photographs of ‘K1’ chance print and ‘S’ sample print, as given in Ext.27-(a) series and we are convinced that the evaluation and conclusion arrived at by PW-13 on those eight points of identity or similarity are acceptable. Moreover, no serious challenge has been made by the appellants, as regards the said eight points of similarity, made out from the evidence of PW-13 as well as page 2 of Ext.P-27, and also the developed photographs of ‘K1’ and ‘S’, produced as Ext.P-27(a) series. In other words, it would be safe to conclude that the chance finger print, denoted as ‘K1’, taken from the emergency lamp, would be broadly identical to the sample finger print of A1, taken as ‘S’. However, that is not the end of the matter, as regards the implication of the expert finger print evidence as against A1. This is so, as the indisputable facts of the matter is that, only one chance print, as per ‘K1’, has been examined, which is the one taken from the emergency lamp. The said chance print taken from the emergency lamp and denoted as Crl.A.Nos.1527/18 & 773/19 - : 151 :- ‘K1’ is not even included in Ext.P-5 scene mahazar. So also, the emergency lamp, which could have been easily included in Ext.P21 property list, has not been included therein. Hence, there is no proper assurance to this Court as to the version of the prosecution regarding taking of the sample print from the emergency lamp, denoted as ‘K1’. 204. That may be a technical aspect, but the substantive core of the matter is that, it is the admitted case that, A1 was a full-time domestic help of the deceased lady and was residing in her house and therefore, he would have access and touched various articles and objects in the house. Two emergency lamps are mentioned in Ext.P5 scene mahazar, one said to be found in the bed room of the deceased and the other found in the hall. 205. A close reading of Ext.P5 scene mahazar would clearly indicate that both the abovesaid emergency lamps, were not found in the rummaged articles found in the scene of occurrence, which would have been frantically searched by the assailants. Both the emergency lamps were found safely intact in its place, Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** one in the bed room and another in the hall. 206. Further, there is no evidence, whatsoever, that the emergency lamp supra is the one that was found in the bed room of the lady, as referred to in Ext.P-5. Therefore, the facts that ‘K1’ chance finger print, taken from the emergency lamp, is identical or similar to ‘S’ sample finger print of A-1 cannot be said to be incriminating circumstances against A-1, as he had all the access, as a full time help, to touch the said articles. 207. As per the prosecution case, it appears that the brandy bottle was found outside the house. Even if the chance finger print therein was found to be identical or similar to the sample print of A1, _prima-facie_ , it will seriously open a doubt as to whether it would have disclosed any incriminating circumstances against A-1. But, going by the descriptions in Ext.P-5 scene mahazar, that the almirah is in the bed room and so _,_ if the chance finger print recovered from the almirah was found to be identical to that of the sample print of A-1, then _prima-facie,_ the prosecution would have contended it would amount to Crl.A.Nos.1527/18 & 773/19 - : 153 :- ## incriminating circumstances against him. 208. Now, we will take up the case of A2. PW-13, in her evidence and also on the top portion of page 2 of Ext.P27, has stated as follows:- _“3 chance prints (developed from the scene of crime articles, the cover of an emergency lamp, powder tin and a brandy bottle) were found identical with left thumb, left little impressions of A2.”_ 209. As can be seen from the perspective taken by the Apex Court in _**Mohanlal’s**_ case supra [1978 (3) SCC 279], on the basis of expert opinions in text books, the practice of looking for a minimum of 12 identical characteristic details may not be necessary and identity with eight or even six points would be sufficient and whereas, in the case of blurred impressions, some experts even opine that three identical points would be sufficient. In the instant case, PW-13 has given eight points of identity as regards both K1 & K2 in Ext.P-27. 210. PW-13, in her evidence and in pages 3 & 4 of Ext.P-27 has given eight points of similarity as between K2 chance print and S2 sample print of A-2 and the same are as follows:- Crl.A.Nos.1527/18 & 773/19 - : 154 :- **1.** Point no. 1 is an upward ridge ending **2.** Point no. 2 is an upward ridge ending below and to the left of point no. 1 with two ridges intervening. **3.** Point no. 3 is a downward bifurcation below and to the left of point no. 2, with no ridge intervening **4.** Point no. 4 is a downward ridge ending below point no. 3 with no ridge intervening. **5.** Point no. 5 is a downward ridge ending below and to the left of point no. 4 with one ridge intervening. **6.** Point no. 6 is a ridge ending to the right below and to the left of point no. 5 with five ridges intervening. **7.** Point no. 7 is a ridge ending towards right, above and to the right no. 6 with one ridge intervening **8.** Point no. 8 is a ridge ending towards right to the right of point no.7 with no ridge intervening. 211. Though PW-13 has stated that the identity in the case of A1’s sample print is confirmed, _vis-a-vis_ , all the three chance prints taken from each of the three objects mentioned therein, namely, the emergency lamp cover, powder tin and a brandy bottle. 212. But, A-2 has not chosen to specifically elicit any response from PW-13 in the manner that has been achieved by the cross of A-1, to suggest that K2, in the case of A-2, can only be Crl.A.Nos.1527/18 & 773/19 - : 155 :- a single chance print taken from one among the three objects stated therein, i.e., either from the emergency lamp cover or from the powder tin or from the brandy bottle. 213. True that, no such challenge has been made by A-2 in that regard. However, it is to be noted that, as held by the Division Bench of this Court in _**Biju Kumar**_ ’s case supra [(2022) (1) KHC 463], on the basis of the Apex Court ruling in _**Prem Sagar Manocha’**_ s case supra [(2016) 4 SCC 571], the testimony of an expert is, at best, an opinion, which has to be given due weight by the Court, but the conclusion has to be arrived at by the court itself, based on the opinion of the expert and such conclusion has to be arrived at based on the opinion of the expert regarding similarities and how the chanceprint can be treated as identical to the sample taken from the accused and the satisfaction, so arrived at by the court, cannot be substituted with the opinion of the expert. A Single Bench of this Court in _**Sivadas S. v. State of Kerala** [ILR 2023 (1) Ker. 522, para 34]_ , in a case where the signatures in two documents were compared by the trial court, held that in a case where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it Crl.A.Nos.1527/18 & 773/19 - : 156 :- shall make a careful study, with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities and that the judgment shall contain reason for arriving at such a conclusion. It has also been held that conclusion arrived at, on a casual or routine glance/perusal, shall not be relied on so as to lead to the conviction of the accused. Hence, we will have to take a strict evaluation of the evidence in that regard. We have gone through the contents of Ext.P27 report as well as the photographs in Ext.P-27(a) series which contains only four photographs, namely two photographs pertaining to K1 & S (in relation to A-1) and the other two remaining photographs are those in relation to K2 & S2 (in relation to A-2). Thus, there is only a single developed photograph for the chance print, as per K2, and a single developed photograph for the sample print, as per S2 in the case of A-2. 214. Even a reading of both, in relation to chance print K1 (in the case of A-1) and chance print K2 (in the case of A-2), it is stated in Ext.P-27 that S is a photographic enlargement of the specimen left thumb impression, taken from the finger print slip of A1. Whereas, S2 is a photographic enlargement of the specimen left thumb impression taken from finger print slip of A-2. No clear description is Crl.A.Nos.1527/18 & 773/19 - : 157 :- made in Ext.P-27 report as to what exactly is the sole photograph as per K1 and the sole photograph as per K2, respectively. As regards K1, it has been clearly admitted by PW-13, in the cross-examination by A-1, that K1 is the chance print taken from the first of the three articles, namely, the emergency lamp, in the case of A-1. It has to be borne in mind that K2 is also a single photograph, as in K1. 215. So, though it is claimed by PW-13 that three chance prints developed from the crime articles, namely, the emergency lamp cover, powder tin and brandy bottle, were found identical with the left thumb and left little thumb impressions of A-2, and since the detailed portion of Ext.P-27 deals only with K2, which is only a single photograph shown as K2, K2 analysed by PW-13 can only be a single chance print and not three chance prints. So, the single chance print, in relation to K2, would be one among the three chance prints said to be taken from each of the three articles mentioned therein, namely, emergency lamp, powder tin and brandy bottle, in the case of A-2 and it cannot be three chance prints taken from each of the three articles. By making an analogical evaluation of the evidence, since PW-13 has admitted that K1 is the first among the three articles in the case of Crl.A.Nos.1527/18 & 773/19 - : 158 :- A-1, namely emergency lamp, it only stands to infer that K2, mentioned in the case of A-2, can only be the first among the three articles mentioned in that case, i.e., emergency lamp cover. These aspects should have been clearly and precisely pin pointed out by PW-13, in her detailed examination report, as per Ext.P-27. Since these aspects have been admitted by PW-13 in the case of A1, the inevitable follow up is that K2, in the case of A-2, is only a single chance print, taken from one among the three articles mentioned supra and not three chance prints taken from each of the three articles. The court cannot, simply and mechanically accept Ext.P-27 detailed report. A close and critical scrutiny of the same is required. Hence, it is to be concluded by this Court that the chance finger print, as per K2, is broadly similar to the chance finger print of A-2 referred to as ‘S2’. 216. Whether K2 is referable to any one of the three articles, namely, either emergency lamp cover, powder tin or brandy bottle, the same is certainly an incriminating circumstance against A-2. This is so, as A-2 is a complete stranger to the residence of the deceased lady, going by the case of both the prosecution and the defence. Crl.A.Nos.1527/18 & 773/19 - : 159 :- 217. If PW-13 & PW-23 had taken more strenuous efforts, then certainly they could have minutely assessed and analysed as to whether the other two chance prints, taken from the other articles concerned, would broadly correspond with the sample prints of A-1 & A-2. The explanation given by PW-13 is that the analysis of the other objects could have been done by any other expert. Such an approach of PW-13 cannot be countenanced. 218. It has to be borne in mind that, out of the 10 chance prints collected by PW-13, she has analysed only six (3 + 3, referred to in the bottom portion of page one of Ext.P-27 and the top portion of page two of Ext.P-27, respectively). The learned Prosecutor would point out that this could be because the other remaining chance prints may not be having the requisite clarity for expert analysis. That may be so, but even going by the evidence of PW-13, six chance prints (3 + 3 supra), could have been easily subjected to expert finger print analysis. Therefore, the stand taken by PW-13 that the remaining chance prints, i.e., the four remaining after K1 & K2, could have been examined by Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** any other expert, is not acceptable, and all efforts should have been made to develop photographs in relation to the other four chance prints and if the other sample prints, namely, left index and right thumb impressions of A1 and the left little finger impressions of A-2, etc., had been subjected to proper analysis, as has been done in the case of K1 & K2, _vis-a-vis_ , S & S2, and if identity or similarity had been arrived at, then, there would have been more stronger evidentiary materials for the court to evaluate and assess. It has to be borne in mind that the case is related to a dastardly murder and robbery, committed on a 63 year old widow. Therefore, more serious and sincere effort should have been forthcoming in the finger print analysis. 219. The appellants have contended that PW-13 has not given any evidence as to what are the test results of the chance finger print taken from the small jewel box of K.P. Varkey Jewellery shop, referred to in Ext.P-5 scene mahazar and that the same would have been suppressed deliberately by the prosecution. We are not in a position to countenance the said Crl.A.Nos.1527/18 & 773/19 - : 161 :- plea, for the simple reason that not even an attempt to make any such suggestion has been made by the defence while crossexamining PW-13 & PW-23. 220. The evidence of PW-13 is that only six (3+3) chance finger prints were subjected to analysis and as urged by the learned Public Prosecutor, this could be because only those six chance prints, after development, could have been capable of undergoing proper analysis and the balance chance prints, as per the jewel box, may not have been sufficient. Only if a suggestion or a challenge had been made would PW-13 or PW-23, have got an opportunity to explain their version. 221. Further, the defence has also contended that the recital in Ext.P5 scene mahazar would show that chilly powder packet and glove box was also found in the scene of crime and so also, the fuse of the house was said to be removed, as per the prosecution case. No effort has been taken by the Finger print Bureau to ascertain as to whether any chance finger prints could be secured from the chilli powder packet or from the glove box or Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** from the fuse. The defence has not made any attempt to elicit any response in that regard from PW-13 & PW-23. Further that, the learned Public Prosecutor has submitted that the finger print experts, after arriving at the scene of occurrence, will be scanning through various materials and they will collect sample finger prints and develop its photographs only from those materials where they are confident that it is capable of being subjected to finger print analysis and where the finger print is not traceable, or it is having no clarity, etc., then they cannot collect the sample prints and in respect of such objects, where it is not possible to collect chance prints, the finger print experts may not keep any written inventory, as to what are the items that they have not collected, as their focus is on keeping an inventory of items that they have collected. Hence, it is urged that, merely because chance finger prints may not have been collected from materials, like chilly powder packet, glove box, etc., no adverse inference can be drawn. Further that, it is quite possible that the accused would have taken all precautions to ensure that the finger prints, Crl.A.Nos.1527/18 & 773/19 - : 163 :- if any, on the chilly powder packet and the glove box would have been cleaned properly and that could be the reason for the absence of chance finger print, etc. 222. Further, the learned Public Prosecutor would point out that, though the prosecution case is that the electric fuse of the house would have been taken immediately after the murder and the fuse was not there when PW1 had entered the house, later, someone, who would have come to help the relatives of the deceased, would have put on the fuse, in order to ensure electric supply and that, therefore, there may not be any purpose in collecting sample prints therefrom, which may create unnecessary confusions. 223. After hearing both sides, we are of the view that the abovesaid explanations, offered by the learned Public Prosecutor, appears to be reasonably plausible. We need not say anything more in that regard, as the defence has not made any attempt to make any suggestion or challenge to PW-13 and PW-23, in their cross-examination on the abovesaid points. Crl.A.Nos.1527/18 & 773/19 - : 164 :- 224. Hence, the broad conclusion would be that, though K1 chance print is found to be identical to that of ‘S’ sample print of A1, since K1 is found only in an emergency lamp, which was kept intact in the house and as A1 had free access in the house as a full-time help, the same cannot disclose any incriminating circumstances against A1, as related to his culpability in this case. However, the identity of K2 with S2 sample print of A2 would be a strong incriminating circumstance as against A2, irrespective as to whether K2 is in relation to any one of the three articles, namely, the emergency lamp cover, powder tin, brandy bottle, found in the box, as A1 was a complete stranger to the house. ## **VI. Circumstantial Evidence** 225. We have already dealt with the dictum laid down by the Apex Court in decisions as in para 26 of **Suresh's case** supra [(2000) 1 SCC 471], para 22 of **Rumi Bora Dutta's case** supra [(2013) 7 SCC 417], wherein, the Apex Court has held that, when an accused points out the place where the incriminating material is concealed, without stating that it was concealed by him, there are Crl.A.Nos.1527/18 & 773/19 - : 165 :- three possibilities to be countenanced and one is that, he himself would have concealed it, the second is that he would have seen somebody else concealing it , and the third is that he would have been told by another person that it was concealed there. If the accused declines to tell the criminal court that his knowledge about the concealment was on account of the last two possibilities, then the criminal court can presume that it was concealed by the accused himself. As the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him. In this regard, we would also deal with a legal contention raised by the defence that the abovesaid dictum, in cases as in **Suresh's case** supra [(2000) 1 SCC 471] and also in case laws relating to the implications of Sec.106 of the Evidence Act, etc., cannot be treated as good law, inasmuch as it would amount to compelling the accused to give self-incriminating evidence, inasmuch as, if he fails to make his stand clear, adverse inference is drawn. 226. We are not in a position to countenance the said plea, as Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** these case laws have been laid down by the Apex Court and this would amount to binding law declared by the Apex Court, as envisaged in Sec.141 of the Constitution of India. Further, the second and third possibilities envisaged in the dictum laid down in para 26 of **Suresh's case** supra [(2000) 1 SCC 471], if conveyed by the accused, will not amount to giving any self-incriminating evidence against him and hence, there is no question of violation of the right of silence and the right against self-incrimination, as envisaged in Article 20(3). If the state of affairs is falling within the second and third possibilities, the disclosure as to whether it falls within either the second and third possibilities, will amount to compelling the accused to give incriminating evidence and if, for any reason, the accused thinks that he is not in a position to give any response as to whether it falls within the first, second or the third possibilities, then that is his choice and there is no question of the criminal court, compelling the accused to disclose the first possibility and if he opts to remain silent, then the necessary inference by presumption, as envisaged in the abovesaid dictum, would come into play. 227. In para 8 of the landmark decision in _**Prakash Chand** v._ _**State**_ (Delhi Admn.), [(1979) 3 SCC 90], after placing reliance on Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** the dictum in _**H.P. Admn.** v._ _**Om Prakash**_ , [(1972) 1 SCC 249], the Apex Court has held that there is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Sec.8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer, in the course of an investigation, which is hit by Section 162 of the Criminal Procedure Code. That, what is excluded by Sec.162 is the statement made to a Police Officer in the course of investigation and not the evidence, relating to the conduct of an accused person (not amounting to a statement), when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance simpliciter, that an accused person led a Police Officer and pointed out the place where the stolen articles or weapons, which might have been used in the commission of the offence, were found hidden, would be admissible as conduct, under Sec.8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Sec.27 of the Evidence Act. This has been again reiterated by the Apex Court in the decisions as in _**A.N.Venkatesh**_ Crl.A.Nos.1527/18 & 773/19 - : 168 :- _v._ _**State of Karnataka**_ , [(2005) 7 SCC 714], _**Chandra Prakash** v._ _**State of Rajasthan**_ , [(2014) 8 SCC 340](para 61). It will be pertinent to refer to para 8 of **Prakash Chand's case** supra [(1979) 3 SCC 90], which reads as follows : _“_ _**8.** …...... There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 of the Criminal Procedure Code. What is excluded by Section 162, Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence, relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be_ _**admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether** any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.”_ _(emphasis supplied)_ 228. So, it is well-settled that in such scenarios, where the applicability of Sec.8 of the Evidence Act also function to play, then this would be irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Sec.27 of the Evidence Act. The said dictum will be applicable in the facts of this case, especially in relation to the admissibility of Ext.P-13(a), Ext.P-13(b) and the confession by conduct, which has led to the recovery of the concealed objects in question. In other words, irrespective as to Sec.27 of the Evidence Crl.A.Nos.1527/18 & 773/19 - : 169 :- Act, the conduct of the accused in question, would also be admissible as relevant conduct, in terms of Sec.8 of the Evidence Act. 229. In that regard, the Apex Court has _inter alia_ held in para 22 of the decision in _**Dharam Deo Yadav** v._ _**State of U.P.**_ [(2014) 5 SCC 509 p.523], that even if it is assumed that the recovery of the concealed object was not in terms of Sec.27 of the Evidence Act, on the premise that the accused was not in the custody of the Police, by the time he made the statement, the statement so made by him would be admissible as “ _conduct_ ” under Sec.8 of the Evidence Act, etc. 230. Dealing with the scenarios of robbery with murder, the Apex Court has held, in decisions as in _**Gulab Chand** v._ _**State of M.P.**_ [(1995) 3 SCC 574] para 4, _**Tulsiram Kanu** v._ _**State**_ [(AIR) 1954 SC1], _**Sanjay alias KAKA** v._ _**State (NCT of Delhi)**_ [(2001) 3 SCC 190] para 28, etc., that, besides Sec.27, the Courts can draw presumptions under Sec.114, illustration ( _a_ ) and Sec.106 of the Evidence Act, etc., that, where the concealed incriminating materials like, ornaments of the deceased, were recovered from the possession of the accused immediately after the occurrence of the offence, then a presumption of guilt may be permitted. However, a word of caution has been added that the time factor is very important, as suspicion Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** cannot take the place of proof. If the ornaments in possession of the deceased are found in possession of the person soon after the murder, a presumption of guilt may be permitted, but if several months have expired in the interval, then the presumption cannot be permitted to be drawn, having regard to the circumstances of the case. It may be pertinent to refer to para 4 of _**Gulab Chand** v._ _**State of M.P.**_ [(1995) 3 SCC 574], which read as follows : _“_ _**4.** …................................... It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan [(1952) 2 SCC 641 : AIR 1956 SC 54 : 1956 Cri LJ 150] that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof. It appears that the High Court in passing the impugned judgment has taken note of the said decision of this Court. But as rightly indicated by the High Court, the said decision is not applicable in the facts and circumstances of the present case. The High Court has placed reliance on the other decision of this Court rendered in Tulsiram Kanu v. State [1951 SCC 92 : AIR 1954 SC 1 : 1954 Cri LJ 225] . In the said decision, this Court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be read along with the “important time factor”. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case. In the instant case, it has been established that immediately on the next day of the murder, the accused Gulab Chand had sold some of the ornaments belonging to the deceased and within 3-4 days, the recovery of the said stolen articles was made from his house at the instance of the accused. Such close proximity of the recovery, which has been indicated by this Court as an “important time_ Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** _factor”, should not be lost sight of in deciding the present case. It may be indicated here that in a later decision of this Court in Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447] , this Court has held that the nature of the presumption and Illustration (a) under Section 114 of the Evidence Act must depend upon the nature of evidence adduced. No fixed time-limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not, calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged to the family of the accused which claim has been rightly discarded, no plausible explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under Illustration (a) of Section 114 Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments. We therefore, do not find any reason to interfere with the impugned decision of the High Court and accordingly this appeal fails and is dismissed.”_ 231. A reference in that connection could also be made to para 28 of _**Sanjay alias KAKA** v._ _**State (NCT of Delhi)**_ [(2001) 3 SCC 190] p.204-205. The Apex Court has held in _**Earabhadrappa alias Krishnappa** v._ _**State of Karnataka**_ , [(1983) 2 SCC 330] para 13 as follows : _**“13.** This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the_ Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** _commission of the crime. The sudden disappearance of the appellant from the house of PW 3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by PW 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to Section 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.”_ 232. Such scenarios of robbery and murder are also dealt with in case laws as in _**Ronny alias Ronald James Alwaris & Ors.** v._ _**State of Maharashtra**_ [(1998) 3 SCC 625] para 30, _**Mukund alias Kundu Mishra & anr** v._ _**State of Madhya Pradesh**_ [(1997) 10 SCC 130], para 9, _**Geejaganda Somaiah** v._ _**State of Karnataka**_ [(2007) 9 SCC 315], para 28, etc. The view taken by the Apex Court in the afore decisions, is broadly to the effect that, if in a given case, the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter, the stolen properties were recovered, then a Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** Court may legitimately draw a presumption, not only of the fact that the person in whose possession the stolen articles were found, committed the robbery but also that, he committed the murder (see para 9 of **Mukund's case** supra [(1997) 10 SCC 130]. In a recent decision in the case in _**Jahir Hussain** v._ _**State of Kerala**_ [(2022) 6 KLT SN 46, (C.No.36)] = [(2022) 4 KLT Online 1201] = [(2022) SCC Online Ker. 4281], the Division Bench of this Court has _inter alia_ considered the interplay between Sec.27 & Sec.114 illustration (a) of the Evidence Act, in a case of robbery with murder and has held that it is well-settled in the light of the decisions of the Apex Court in cases as in _**Ganesh Lal** v._ _**State of Rajastan**_ [(2002) 1 SCC 731], that the presumption based on illustration (a) of Sec.114 of the Evidence Act, can arise only if the theft is inextricably connected with the murder and the stolen items are established to either belong to the deceased or belongs to the occupants of the house, in which the deceased was staying and was found murdered, etc. 233. The Division Bench of this Court in decisions as in _**Jithesh** v._ _**State of Kerala**_ [(2020) SCC Online Ker.3213], has _inter alia_ held, in para 352 thereof, that quintessence of the legal Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** pronouncements, relating to cases of robbery and murder, is that even if there is no direct evidence regarding how the murder was committed, if robbery is clearly established by evidence and if the fact that in the course of committing robbery, murder also took place, then it can be legitimately presumed that the robber himself is the murderer, if no material is available on record to infer his innocence. In the facts of that case, the Division Bench of this Court held that there cannot be any hesitation to hold that the accused plundered almost the entire gems in the custody of the deceased and the accused persons offered no acceptable explanation for keeping them. Moreover, their presence at the crime scene on the date of occurrence and at the probable time of death, have been clearly established by reliable evidence. The medical evidence, including the postmortem certificate, would clearly show that the deceased was a victim of murderous death and hence, it was held that the accused 1 to 4 therein are liable to be convicted, for voluntarily causing hurt in the course of committing robbery under Sec.394 IPC and that they are liable for murder as well. In paras 354 to 356 thereof, the Division Bench has also held that Sec.34 of the IPC clearly states that when a criminal act is done by several persons, in furtherance of a common Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Further that, Sec.34 of the IPC is a deviation from the normal rule that, ordinarily, every man is responsible criminally for a criminal act done by him and no man can be held responsible for an independent act and wrong committed by another. The basic principle relating to criminal liability is that the person who commits an offence is responsible for that and he alone can be held guilty. However, Sec.34 of the IPC makes an exception to this Rule and it lays down a principle of joint liability in doing of a criminal act and the essence of that liability is founded on the existence of a common intention, which deals with the doing of separate acts, similar or adverse by several persons and if all are done in furtherance of their common intention, each person is liable for the result as if he had done that act himself {see _**Goudappa** v._ _**State of Karnataka**_ [(2013) 3 SCC 675] & _**Satyavir Singh Rathi** v._ _**State**_ [(2011) 6 SCC 1], etc.} 234. Further that, Sec.34 is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all { _**Girija**_ Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** _**Shankar** v._ _**State of Uttar Pradesh**_ [(2004) 3 SCC 793]}. It was thus held that, according to judicial precedents, the reason why all the accused are deemed guilty in such cases is that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. True that, the contents of Sec.34 are that, if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself and the existence of a common intention amongst the participants in a crime is the essential element of application of Sec.34 IPC { _**Asok Kumar** v._ _**State of Punjab**_ [(1996) 6 SCC 337]}. 235. It is also relevant to note that the Apex Court, in decisions as in _**Vasa Chandrasekhar Rao** v._ _**Ponna Satyanarayana & anr.**_ [(2000) 6 SCC 286], _**Geetha** v._ _**State of Karnataka**_ [(2000) 10 SCC 72], _**Aftab Ahmad Anasari** v._ _**State of Uttaranchal**_ [(2010) 2 SCC 583] para 58, has held, by explaining the law relating to circumstantial evidence, that where circumstances proved are put to accused through his examination under Sec.313 of the Cr.P.C. and the accused merely denies the same, such denial could be an additional link in the chain of circumstances to bring home the charge Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** against the accused. In **Aftab Ahmad Anasari's case** supra [(2010) 2 SCC 583], it was noted, in para 59 thereof, that it was proved by cogent and reliable evidence that the accused had committed rape on the deceased and thereafter murdered her and the incriminating circumstances proved were put to him, while recording the statement under Sec.313 of the Cr.P.C. In his statement, recorded under Sec.313, the accused merely denied the same. Therefore, it was held that such denial on the part of the accused and failure to explain the circumstances proved, will have to be treated as an additional link in the chain of circumstances to bring home the charge against the accused, etc. 236. The Three-Judges' Bench of the Apex Court in _**Prahlad** v._ _**State of Rajastan**_ [(2019) 14 SCC 438] para 11, has held, in the facts of that case, that since no explanation was forthcoming from the statement of the accused under Sec.313 Cr.P.C., as to when he parted the company of the victim and also no explanation was forthcoming from him, as to what happened after getting the chocolates for the victim, etc., it was held that the silence on the part of the accused in the facts of that case, wherein he was expected to come out with an explanation, leads to an adverse inference against him. Reference in Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** this connection could also be made to para 30 of the decision of the Apex Court in _**Neel Kumar v. State of Haryana**_ [(2012) 5 SCC 766] para 30. 237. Case laws on these aspects are in legion. Suffice to note that, by placing reliance on the dictum laid down in _**Shivaji Sahabrao Bobade** v._ _**State of Maharashtra**_ [(1973) 2 SCC 793], the Apex Court has elucidated the legal principles relating to the circumstantial evidence for proving criminal culpability in the land mark decision in _**Sharad Birdhichand Sarda** v._ _**State of Maharashtra**_ [(1984) 4 SCC 116], in paras 153 and 154 (p.185), as follows: **“153.** A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: ( _1_ ) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in _Shivaji Sahabrao Bobade_ v. _State of Maharashtra_ [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused _must_ be and not merely _may_ be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” **(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, Crl.A.Nos.1527/18 & 773/19 - : 179 :- **(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. **154.** These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 238. While reiterating the principles in relation to circumstantial evidence in criminal proceedings, the Apex Court has held, in para 14 of the decision in _**Trimukh Maroti Kirkan** v._ _**State of Maharashtra**_ , [(2006) 10 SCC 681] p.690, that if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence is insisted upon by the Courts. That, the Judge in a criminal trial has two public duties; one to ensure no innocent man is punished and the other to see that a guilty man does not escape. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led or, at Crl.A.Nos.1527/18 & 773/19 - : 180 :- any rate, extremely difficult to be led. That, the duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case and that it is necessary to keep in mind Sec.106 of the Evidence Act which holds that, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It will be pertinent to refer to paras 12 and 14 of the decision in _**Trimukh Maroti Kirkan's case supra**_ [(2006) 10 SCC 681], which read as follows: “ **12** . In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. **==> picture [159 x 6] intentionally omitted <==** **14.** If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See _Stirland_ v. _Director of Public Prosecutions_ [1944 AC 315 : (1944) 2 All ER 13 (HL)] — quoted with approval by Arijit Pasayat, J. in _State of Punjab_ v. _Karnail Singh_ [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact Crl.A.Nos.1527/18 & 773/19 - : 181 :- is upon him. Illustration ( _b_ ) appended to this section throws some light on the content and scope of this provision and it reads: “( _b_ ) _A_ is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.”” 239. The Apex Court in para 42 of the decision in _**Santosh Kumar Singh's case supra** [(2010) 9 SCC 747]_ has relied on the abovesaid dictum laid down in paras 12 and 14 of the decision in _**Trimukh Maroti Kirkan's case supra**_ [(2006) 10 SCC 681] and has held, in para 43 thereof, that the onus to prove the defence of the accused therein and the circumstances relating to his injury and treatment were within the special knowledge of the appellant/accused and therefore, he could not keep silent and say that the obligation rested on the prosecution to prove its case. 240. The Apex Court in the decision in _**State of Haryana** v._ _**Bhagirath**_ [(1999) 5 SCC 96] has held in para 8 thereof that it is nearly impossible in any criminal trial to prove all elements with scientific precision and that a criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression “ _reasonable doubt_ ” is incapable of definition. It was held that modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty Crl.A.Nos.1527/18 & 773/19 - : 182 :- to the judge. Further in para 9 of the decision in _**Bhagirath's case supra**_ [(1999) 5 SCC 96] the Apex Court placed reliance on Whartons' Criminal Evidence (Volume 1, 12[th] Edition), wherein it was held that it is difficult to define the phrase “ _reasonable doubt_ ” and that it is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It has been opined therein that reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. Further, in para 10 in _**Bhagirath's case supra**_ [(1999) 5 SCC 96], the Apex Court has placed reliance on the treatise on _The Law of Criminal Evidence,_ authored by HC Underhill, wherein it has been stated that "The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain, consistent with a conscientious desire to ascertain the truth and an honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** arises from a consideration of all the evidence in a fair and reasonable way and there must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt. It will be pertinent to refer to paras to 8 to 11 of the decision in _**Bhagirath's case supra**_ [(1999) 5 SCC 96], which read as follows: **“8.** It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression “reasonable doubt” is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge. **9.** Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book _Wharton's Criminal Evidence_ (at p. 31, Vol. 1 of the 12th Edn.) as follows: “It is difficult to define the phrase ‘reasonable doubt’. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the _Webster case_ . He says: ‘It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.’ ” **10.** In the treatise _The Law of Criminal Evidence_ authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus: “The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.” **11.** In _Shivaji Sahabrao Bobade_ v. _State of Maharashtra_ [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489] this Court adopted the same approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. This Court further said: (SCC p. 799, para 6) “The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.”” 241. The Apex Court in para 12.4 of the decision in _**State of**_ _**Karnataka** v._ _**Suvarnamma & Anr.**_ , [(2015) 1 SCC 323, pp.323324] has placed reliance on the dictum laid down in paras 8 to 11 of the Apex Court decision in _**Bhagirath's case supra**_ [(1999) 5 SCC 96]. In para 10 of the decision in _**State of U.P.** v_ _**. M.K. Anthony**_ [(1985) 1 SCC 505], the Apex Court has held that the approach in appreciating evidence must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence, more particularly, keeping in view the deficiencies, Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the IO not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole, etc. These aspects have been reiterated in para 12.5 of the decision in _**Suvarnamma's case supra**_ [(2015) 1 SCC 323]. 242. A Three-Judge Bench of the Apex Court in a recent verdict in the case in _**Rahul v. State (NCT of Delhi)**_ [2022 SCC online SC 1532], in para 40 thereof, has held that, as per the settled legal position, in order to sustain conviction on the basis of circumstantial evidence, 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 only and none else. The circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt Crl.A.Nos.1527/18 & 773/19 - : 186 :- 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 the facts of that case, the Apex Court held that the evidence, in that case, with regard to the arrest of the Appellants-accused, their identification, discoveries and recoveries of the incriminating materials, the identity of the Car, the seizures and sealing of the articles and collection of samples, the medical and scientific evidence, the report of DNA profiling, the evidence with regard to the CDRs etc. were not proved by the prosecution by leading, cogent, clinching and clear evidence for establishing the guilt of the accused. The Apex Court also held that, it may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise. Further, a Constitution Crl.A.Nos.1527/18 & 773/19 - : 187 :- Bench of 5 Judges Bench of the Apex Court, in a recent verdict rendered on 15.12.2022, in the case in _**Neeraj Dutta** v._ _**State (Government of NCT of Delhi)**_ [2022 SCC online 1724], has held as follows, in paras 58 to 61 thereof:- _"_ _**58** . As already noted, all evidence let in before the court of law are classified either as direct or circumstantial evidence. “Direct evidence” means when the principal fact is attested directly by witnesses, things or documents. For all other forms, the term “circumstantial evidence” which is “indirect evidence” is referred, whether by witnesses, things or documents, which can be received as evidence. This is also of two kinds namely, conclusive and presumptive. Conclusive is when the connection between the principal and evidentiary facts - the factum probandum and factum probans - is a necessary consequence of the laws of nature; “presumptive” is when the inference of the principal fact from the evidence is only probable, whatever be the degree of persuasion which it may generate (Best, 11th Edition, Section 293). Thus, circumstantial evidence is evidence of circumstances as opposed to what is called direct evidence. The prosecution must take place and prove all necessary circumstances constituting a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence vide Navaneethakrishnan v. State by Inspector of Police, (2018) 16 SCC 161 : AIR 2018 SC 2027 (“Navaneethakrishnan”)._ _**59** . The principal fact can be proved indirectly by means of certain inferences drawn from its existence or its connection with other circumstantial evidence. It is often said that witnesses may lie but not the circumstances. However, the court must adopt a cautious approach while basing its conviction purely on circumstantial evidence. Inference of guilt can be drawn only when all incriminating facts and circumstances are found to be incompatible with the innocence of an accused. In other words, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that, taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed._ _**60** . It is trite law that in cases dependent on circumstantial evidence, the inference of guilt can be made if all the incriminating facts and circumstances are incompatible with the innocence of the accused or any other reasonable hypotheses than that of his guilt, and provide a cogent and complete chain of events which leave no reasonable doubt in the judicial mind. When an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. If the combined effect of all the proven facts taken together is conclusive in establishing the guilt of the accused, a conviction would be justified even though any one or more of those facts by itself is not decisive. (Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 (“Sharad Birdhichand_ Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** _Sarda”) as reiterated in Prakash v. State of Rajasthan, (2013) 4 SCC 668 (“Prakash”))._ _**61** . In Kundan Lal Rallaram v. The Custodian, Evacuee Property Bombay, AIR 1961 SC 1316 (“Kundan Lal Rallaram”), this Court speaking though K. Subba Rao, J. observed that the rules of evidence pertaining to burden of proof are embodied in Chapter 7 of the Evidence Act. The phrase “burden of proof” has two meanings : - one, the burden of proof as a matter of law and pleading and the other, the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by opposite party; it may comprise of circumstantial evidence or presumptions of law or fact."_ 243. Now, we would apply the abovesaid legal principles relating to circumstantial evidence and other related aspects mentioned above to the facts of this case to evaluate as to whether it is necessary to prove beyond reasonable doubt as to the involvement of the two accused persons for the offences alleged against them. We have already held that, indisputably, there is proof beyond reasonable doubt that the cause of death of the victim was due to smothering. Firstly we will deal with culpability of A-2 and then that of A-1. ## **-2 Culpability of A** 244. In this case, there is no direct evidence as against the accused to prove the guilt of the accused. The prosecution is relying mainly on circumstantial evidence. After hearing both sides and after careful evaluation of the evidence on record, we are of the view that Crl.A.Nos.1527/18 & 773/19 - : 189 :- the following circumstances are highly incriminating, which would prove the guilt of A-2. ## Circumstance No.1 245. There is clinching evidence to show that MO-1 to MO-2 (gold ornaments) MO-3 (silver ornament) and MO-5 (cash) have been recovered from the residence of A-2 in pursuance of Ext.P-13 recovery mahazar tendered by the police. The prosecution witnesses, who are close relatives of the deceased lady, viz. PW-1 (nephew), PW-3 (son), etc. have identified that the abovesaid gold and silver ornaments belonged to the deceased lady. We have already considered in detail and have repealed the contentions of the accused regarding the recovery of MO-1 to MO-3, MO-5, etc., and we have held that the prosecution has taken effective and speedy steps to recover the abovesaid vital material objects from the residence of A-1. We have already held that authorship of concealment is not _sine qua non_ for the applicability of Sec.27 of the Indian Evidence Act and the disclosure of A-2, as per Ext.P-13(b), about the place of concealment of the above material objects in his residence, has been confirmed by tracing out these concealed objects and its recovery. Further, these recovered material objects are proved to be those belonging to the Crl.A.Nos.1527/18 & 773/19 - : 190 :- deceased lady. Hence, Ext.P-13(b) confession statement, to the limited extent it has distinctly led to the discovery of the fact that the accused knew the place of concealment of these materials objects, is admissible and has been proved. Further, it is linked up with the clear evidentiary proof given by PW-1 & PW-3 that those material objects belonged to the deceased lady. The most crucial aspect of the matter is that the time gap between the date of registration of Ext.P-26 FIR (registered on 7.2.2006 at 4 AM) and the recovery of MO-1 to MO-3, MO-5, MO-6, etc. (which have been recovered after 8 PM or so) is 16 hours or so. The exact time of commission of crime is not known and the same would have happened anytime after 9.30 PM and before 12 midnight of 6.2.2006. So, the time gap between the probable time of robbery and murder and the recovery would be about 18 - 19 hours or so. The investigating agency could fairly and efficiently carry out their duties and these recoveries have been effected within a time span of much less than a day. Hence, the time of acts of robbery and murder and the time of recovery of material objects are quite close and contemporaneous. Further, there is nothing to disbelieve the version of the investigating agency regarding the arrest of the accused and recording of Ext.P-13(b) confession Crl.A.Nos.1527/18 & 773/19 - : 191 :- statement and the recovery of, not only these material objects (MO-1 to MO-3 & MO-5), but also MO-6 shawl. 246. The detailed discussion made in the earlier part of the judgment would show that the prosecution has led clear and cogent evidence through PW-17 (I.O.), PW-19 (attesting witness), PW-11 (goldsmith) etc. to prove the various facts regarding the arrest of the accused, tendering of confession statement, of which Ext.P-13(a) and Ext.P-13(b) are parts, recovery of material objects, etc. 247. As held by the Apex Court in decisions as in _**Suresh's**_ case supra [(2000) 1 SCC 471, para 56], _**Rumi Bora Dutta's**_ case supra [(2013) 7 SCC 417, para 22] _, etc._ there are three distinct possibilities when an accused points out a place where an incriminating material has been concealed, without stating that it was concealed by himself. One is that he, himself, would have concealed it. Second is that he would have seen somebody else concealing it and the third is that he would have been told by another person that it was concealed there. But, if the accused declines to disclose to the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the Criminal Court can presume that it was concealed by the accused himself, as he is the Crl.A.Nos.1527/18 & 773/19 - : 192 :- only person who can offer an explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be adopted by the Criminal Court that the concealment was made by the accused himself. Moreover, it is well settled, by a series of rulings of the Apex Court, including the decisions cited hereinabove, irrespective as to the applicability of Sec.27, the abovesaid confession of the accused, regarding the place of concealment and its subsequent recovery, etc., would be a highly relevant conduct, in terms of Sec.8 of the Indian Evidence Act. The intense application of Sec.114 (Illustration (a)) would also come into play. 248. True that, suspicion cannot take the place of proof and the time factor between the act of robbery and murder and the time of recovery is highly crucial. It is well settled by a series of rulings of the Apex Court and various High Courts, including this Court, referred to hereinabove, that the presumption based on Illustration (a) of Sec.114 of the Indian Evidence Act will arise if the robbery is inextricably connected with the murder and the stolen articles are established to either belonging to the deceased or to the occupants of the house, in Crl.A.Nos.1527/18 & 773/19 - : 193 :- which the deceased was staying and was found murdered and the objects have been recovered within a reasonable time limit and there is no long delay as between the commission of the offence and the subsequent recovery. 249. In the instant case, A-2 has bluntly denied his involvement and has not given any explanation as to how the stolen articles came to his possession. Hence, the inevitable legal fallout is that the second and third possibilities mentioned supra are to be excluded, which leads to the situation that the Court will have to presume that it was the accused who has concealed it, etc. Further, the prosecution evidence has clearly established that the act of robbery and murder are inextricably linked and connected. Further, the very version of A-1, who was a domestic helper of the deceased lady, as given to PW-1 immediately after the crime incident and as recorded in Ext.P-1 FIS as well as the the subsequent evidence given by PW-1 regarding the version told to him by A-1 is that five assailants had come to the residence of the deceased and two of them had covered her face with a shawl and smothered her to death and simultaneously, three others had started searching and rummaging the house for valuables kept there. Even in the Sec.313 Cr.P.C. stage, Crl.A.Nos.1527/18 & 773/19 - : 194 :- the case of A-1 is precisely the same as above. Moreover, even otherwise, there is clear evidence that the acts of robbery and murder would have taken place sometime after 9.30 PM on the fateful day and before 12 midnight of that day. Going by the version of A-1, as stated above, the acts of murder and robbery have taken place within a very short span of time. In other words, there is clear evidence, beyond any shadow of doubt, that the acts of robbery and murder, in this case, are inextricably linked and are contemporaneous and the stolen articles have been recovered from the residence of A-2, within about 18 – 19 hours or so from the time of commission of offence and within about 16 hours from the registration of FIR. For all these reasons, we are of the firm view that there is clear and cogent evidence, beyond reasonable doubt, to show that A-2 is guilty of both robbery and murder and house trespass. A-2 is a complete stranger to the house and hence, it goes without saying that the alleged offence of house trespass is also proved. ## Circumstance No. 2 250. MO-6 shawl with hairs has been recovered from the residence of A-2, in pursuance of the course of investigation conducted immediately after the recovery of MOs 1 to 3 & 5 and based Crl.A.Nos.1527/18 & 773/19 - : 195 :- on the confession by conduct of A-2, as recorded in Ext.P-13 Recovery Mahazar, the details of which have already been stated hereinabove. True that, unlike the recovery of MOs 1 to 3 & 5, in pursuance of Ext.P-13(b) confession statement, the recovery of MO-6 shawl with hairs is not on the basis of a written confession statement of A-2 but on the basis of his confession by conduct in the course of investigation, as clearly stated in Ext.P-13 Mahazar, the details of which have already been dealt with earlier. Therefore, the specific case of A-1 conveyed to PW-1, as disclosed in Ext.P-1 and as again deposed by PW-1 (and as reiterated in PW-1's evidence), regarding the version of the incident conveyed to him by A-1, etc., is that a shawl was used to cover the face of the victim and that she was smothered, etc. A-1, in his Sec.313 Cr.P.C. Statement, has also clearly stated that the deceased's face was covered with a cloth. 251. When PW-17 (I.O.) questioned A-2, as to the shawl said to have been used in the smothering of the deceased lady, A-2 had pointed out the said shawl, which, on examination by the I.O., was found to have strands of hairs. It is on this basis that MO-6 (shawl with hairs) has been recovered. The suspect hairs recovered from MO-6 shawl and the sample hairs taken out from the body of the Crl.A.Nos.1527/18 & 773/19 - : 196 :- deceased after Postmortem were sent for scientific analysis to the Biology Wing of the FSL, which has led to the issuance of Ext.P-25 report of the FSL, wherein, after giving the details, it has been certified that the hairs found on MO-6 shawl is similar to that of the specimen hairs of the deceased lady taken during the time of Postmortem, etc. In the light of these aspects, there is nothing to disbelieve or suspect the various steps taken by the prosecution for recovery of the above objects as well as the scientific test analysis, which has led to Ext.P-25 and those aspects have already been dealt with hereinabove. Hence, the abovesaid information conveyed by A-2, through his confession by conduct, to the limited extent it distinctly relates to the discovery of the fact of the recovery of MO-6 and hair, is admissible and also has been proved. Further, we have already held that the contentions of the accused, that Ext.P-25 test results, done on the basis of microscopic analysis, should be shunned, etc. cannot be conceded to. True that, DNA testing would have been a more conclusive test process. It is a rebuttable evidence of the prosecution that at the relevant time, in 2006, none of the State Forensic Science Laboratories had any facility for DNA Testing and the only facility for hair analysis test was Microscopic Testing and that, after DNA Crl.A.Nos.1527/18 & 773/19 - : 197 :- Testing, the next scientific testing is based on Microscopic Analysis. For the reasons already stated hereinabove, we have held that the prosecution could prove through the evidence of prosecution witnesses, including the evidence of DW-2, who has authored Ext.P-25 FSL Report, that Ext.P-25 Report would prove that the suspect hairs taken from MO-6 shawl are similar to the specimen hairs of the deceased, even if it cannot be held that they are identical. Hence, the abovesaid scientific finding, borne out from Ext.P-25, regarding the similarity of suspect hairs found in MO-6 shawl, would be yet another strong incriminating circumstance against A-2. ## Circumstance No. 3 252. Detailed evidentiary appreciation has already been made in the earlier part of the judgment regarding the Fingerprint Test Analysis in pursuance of Exts.P-8 & P-27 series. Those aspects need not be reiterated herein. We have already held that the prosecution evidence would clearly show that there is nothing to suspect or disbelieve the steps taken by the investigating agency for collection of sample fingerprints from the accused and collection of chance prints from the scene of occurrence by the fingerprint experts and the subsequent test analysis. Before the remand, the only piece of expert Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** report was Ext.P-8, which only contained the conclusions of the test analysis without giving any details of the testing process and the reasons for arriving at the conclusions. Moreover, the author of Ext.P-8 was not examined. After the remand, the author of Ext.P-8 report was examined as PW-23. PW-13 (fingerprint expert) has been re-examined and Exts.P-27 & P-27A series have been proved through her. In the light of the earlier discussion, we have held that Exts.P-27 & P-27A series, Ext.P-8 report and the evidence of PW-13 & PW-23 have proven that K-2 chance print, taken from the emergency lamp cover from the scene of occurrence, is identical to the sample fingerprint S-2 of A-2. So, the presence of A-2 in the scene of the crime occurrence has thus been confirmed by the above scientific test analysis. This is yet another strong incriminating circumstance against A-2. ## Circumstance No.4 253. Apart from PW-3 (deceased's son), PW-7 (Police photographer) & PW-10 (attester of Ext.P-5 scene mahazar), has clearly stated about the presence of chilli powder and Ext.P-2 photograph taken on 07.02.2006 before 10 AM by PW-7, would also show the chilli powder packet (MO-4), as one among the articles lying Crl.A.Nos.1527/18 & 773/19 - : 199 :- ## among the rummage in the scene of occurrence. 254. The prosecution has led evidence that chilli powder was found scattered in the crime scene immediately after the crime incident and that, a chilli powder packet was found there, which has been recovered in pursuance of Ext.P-13 recovery mahazar. It is beyond any dispute that one of the common methods used in organized crimes, like robbery, theft, etc., is that chilli powder, would be scattered by the culprits, in order that Police sniffer dogs are distracted by the smell element of chilli powder, so that the Police sniffer dogs may lose its efficiency to immediately track down the route taken by the culprits. PW-1 (nephew) and PW-3 (son) of the deceased have given evidence that, when they reached the crime scene, they saw the articles rummaged in the house of the deceased and chilli powder was also found scattered there. PW-4 (grocery shop owner) has given evidence that he knows the 2[nd] accused very well, as he is a young man of the locality who used to come to his shop and that, A-2 had purchased from his shop a packet of chilli powder on 5.2.2006, which is previous to the day of the incident. The defence specifically queried as to how he could remember the said incident and he has stated that he knows the accused, who is a young man of Crl.A.Nos.1527/18 & 773/19 - : 200 :- the locality and further that, he could remember the purchase of chilli powder packet by A-2 on 5.2.2006, as subsequently, the crime incident was given major coverage in media reports, etc. 255. The abovesaid evidence of PW-4 is highly believable, inasmuch as, even going by the case of the defence, wide coverage regarding the crime and arrest of the above accused persons were reported in the media, etc. and when the arrest of A-2 subsequently came to public domain, PW-4 could have easily remembered the above incident of sale of chilli powder. The above prosecution evidence, including the evidence of PW-4 and the evidence given by PW-17, regarding the recovery of MO-4 from the scene of occurrence, have not been, in any manner, discredited or challenged by the defence. So, there is clear evidence that it was A-2 who had purchased chilli powder packet, covered by MO-4, just one day prior to the crime incident. This is yet another strong incriminating circumstance against A-2. ## Circumstance No.5 256. The motive of A-2 for immediate monetary gain has been established by the prosecution through the evidence of PW-5 & PW-6, who are neighbours of A-2. PW-5 has deposed that he knew Crl.A.Nos.1527/18 & 773/19 - : 201 :- A-2 from childhood and that A-2 had borrowed Rs.5,000/- from him, promising to return the same and he had returned only part of the amount and still, Rs.2000/- is outstanding and despite repeated requests, the balance amount has not been paid by A-2. PW-6 has also stated that he knew A-2 and that, he used to go to work with the father of A-2 and that A-2 had borrowed Rs.4,000/- from PW-6 and an amount of Rs.2,500/- is still outstanding, eventhough PW-6 had repeatedly asked for return of money. Though repayment was promised, A-2 had not repaid the balance amount. 257. The abovesaid evidence of P.W-5 and P.W-6 has not, in any manner, been discredited by A-2. On the other hand, A-2 in his Sec.313 statement has clearly admitted the version of P.W-6, to the extent that he had borrowed money, but he has taken the plea that he has repaid the entire amount. Therefore, the above evidence of P.W-5 and P.W-6 would clearly show that A-2, a young man, then aged 26 years, was in dire need of money and that he used to remain in debt and used to borrow money from others. Hence, the motive of A-2 for the crime, as per the prosecution case, that he, as a young man, was indebted and was in dire need of money, etc. is thus established. This is yet another incriminating circumstance against A-2. Crl.A.Nos.1527/18 & 773/19 - : 202 :- ## Circumstance No.6 258. The undisputed and unrebutted evidentiary materials, like Exts.P-16 to P-20, mentioned supra, would clearly show that A-2 & A-1, both knew each other and were friends and their families are residing in the same locality, inasmuch as their residential addresses are within the same locality _(chappath)_ and A-1's father is shown as a friend and neighbour of A-2, etc. The details in that regard, shown in Exts.P-16 to P-20, have not, in any manner, been rebutted or challenged by the defence, even by a remote suggestion. These aspects are independently of the aspect that Ext.P-13(a) confession statement would distinctly lead to the discovery of the fact that A-1 knew A-2 and A-1 also knew the residence and whereabouts of A-2. The details in this regard, shall be separately dealt with while considering the culpability of A-1 and also while dealing with the issue of the common intention of A-1 & A-2 for commission of the above crime. 259. On an evaluation of the cumulative impact of all these aforesaid circumstances, based on the well-settled legal position regarding the applicability of Sec.27 of the Evidence Act and its interplay with other provisions of Sec.8 and illustration (a) of Sec.114 Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** as well as the independent impact of Sec.8, etc., we are of the firm view that these circumstances would form a complete chain and the inevitable follow-up is that, this Court can safely conclude, with all human probability, that the offences as per Sec.302, 392 & 452 of the IPC have been committed by A-2. These circumstances, considered in its totality is not in consensus with any other hypothesis on the guilt of the accused and it is inconsistent with his plea of innocence. ## **-1 Culpability of A** 260. We have already held that the impact of the evidence of PW-13, PW-23, as assessed on the basis of Ext.P-8 & Ext.P-27 (a) series, is that the suspect fingerprint, denoted as 'K-1', is identical to that of the sample fingerprint of A-1, denoted as 'S'. K-1 is admittedly a chance print recovered from the emergency lamp. The chance print recovered from the emergency lamp is not even mentioned in Ext.P-5 scene mahazar. The emergency lamp is not produced along with Ext.P-21 property list, though two emergency lamps are mentioned in Ext.P-5 scene mahazar, one in the bedroom and another in the hall of the residence. Both of them are seen kept intact in the said sites. There is no evidence on record, as to which one among the two emergency lamps, is the one from whom the chance print has been Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** recovered, as per K-1. That apart, even going by the admitted prosecution case, A-1 is the full time domestic help of the deceased victim, who was residing there and he had access to the house. The identification of the chance print in the emergency lamp, which was not even part of the rummaged and searched articles after the crime incident, cannot disclose any incriminating circumstances against A-1. However, there are strong incriminating circumstances disclosed against A-1 in the facts of this case and the same are as follows : Circumstance No.1 261. The version of A-1, as regards the crime incident, as narrated by him to PW-1, which is recorded in Ext.P-1 FIS, as well as the specific stand of A-1, in his statements given under Sec.313 Cr.P.C stage, is found to be a complete lie and false, inasmuch as there is clinching evidence to show the culpability of A-2. This is so, as A-1's version regarding the crime incident, which, according to him, he has witnessed directly and as conveyed by him to PW-1 as per Ext.P-1 and as reiterated by him in his evidence is fully in consonance with the version of A-1 in his Sec.313 statement. The said version is that five unknown assailants had come to the residence of the deceased. It is very relevant to note that A-1 never discloses the time at which the Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** assailants had come to the residence on 06.02.2006, which could be any time between 9.30 PM upto 12 midnight on that day. He further states that two of the assailants had covered the face of the deceased with a shawl and had smothered her to death, while three other assailants had rummaged and committed robbery of the valuables in that house. Nowhere has A-1 stated that A-2 was one among the five assailants. Equally, it is to be noted that, very cleverly, A-1 has not taken the stand explicitly that A-2 is not one among the five assailants. There is evidentiary material to show that A-1 & A-2 knew each other quite well and that they are residing in the same locality (details of the same will be dealt with separately). Since the involvement of A-2 is clearly established, the inevitable fall out is that the version of A-1, regarding the crime incident, as above, is a complete lie and falsehood, especially as the tone and tenor of his case was as if the five alleged assailants were strangers and not known to him. This is a strong incriminating circumstance against A-1, pointing out that he has suppressed the truth and that he is in league with A-2. Circumstance No.2 262. The specific version of A-1, as narrated by him to PW-1, about which A-1 has no dispute at all and his Sec.313 statements are in full consonance with that in Ext.P-1 and the evidence of PW-3 in Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** that regard, is that five assailants had tied his hands and legs and had forcefully kept him in the kitchen and the front door was opened and the kitchen door was closed, etc. In that regard, it is to be noted that the evidentiary materials, like Ext.P-5 (scene mahazar) and Ext.P-11 (site plan), would clearly show that the residence of the deceased has at least three exits/access for a person from inside of the house to go outside. Ext.P-11 (site plan) would show that there are exits/door access from the sit-out to the main front hall and yet another exit/door access from the dining hall to the outside of the house. Though Ext.P-11 (site plan) does not clearly show that there is an exit from the kitchen to the outside of the house, the evidence of PW-1 and the even the version of A-1, as given to PW-1, which is reflected in Ext.P-1 as well as in A-1's Sec.313 statement, is to the effect that the kitchen door was then found locked. So, even going by the said evidentiary aspects, it can be seen that there is an exit/access from the kitchen to the outside. The exit/access door from the kitchen is clearly stated in the middle portion of page 9 of Ext.P-5 (scene mahazar). The other two exit doors (front door & the door from the dining hall) are mentioned on the top portion of page 2 and the bottom portion of page 7 of Ext.P-5 (scene mahazar). Needless to say, Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** the above evidence of PW-1 and the stand of A-1 in his Sec.313 statement would also clearly show the existence of the front door, i.e. from the sit-out to the main hall. When PW-1 has given clear evidence that, when he had reached the scene of the crime after midnight hours on that day, A-1 had told him that he was forcefully tied down in the kitchen and that the kitchen door was closed by the assailants and that the front door was open, PW-1 had access to the residence through the front door, which was already kept open. The said clear evidence (about which A-1 is fully in concurrence), that the front door was then found open and all the other exit doors were found closed, is highly incriminating and suspicious circumstance. If, as a matter of fact, five unknown assailants had come to the house, as alleged by A-1, then certainly, they would have done necessary pre-planning to ensure that there is some exit for them after the commission of the crime. When there are two other exits/access doors to leave the house, such assailants would not have kept the front door open and after commission of the crime, they would have left the scene through any of the other two exit points. Assume for a moment that they had forcefully tied down A-1 in the kitchen, then, they may have opted not to exit through the kitchen door, but could have safely exited through Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** the exit door from the dining hall to the outside of the house. Leaving the front door open, would have been a highly dangerous position, inasmuch as, if anyone in the locality, especially nearby residents like PW-1, etc., were alerted, they would have first examined the front door and if it was found open, during the commission of the crime, it would have been extremely dangerous for the culprits. So, if, as a matter of fact, the assailants were totally unknown to A-1 and A-1 was a faithful domestic help of the deceased, then the assailants leaving the scene of occurrence, after keeping the front door open, would not have been a prudent option taken by them. Such organized assailants certainly have the wherewithal and intelligence to chalk out a proper strategy for committing the crime and also f0r a safe exit. So, the indisputable evidence on record, with which A-1 has full concurrence, that the front door was found left open after the crime incident, is a highly suspicious circumstance. ## Circumstance No.3: 263. The version of A-1 that the assailants, after tying his hands and legs, had kept him in the kitchen, appears to be clearly a false version of A-1. When PW-1 had come to the scene of occurrence, after getting inside the house through the front door, he had seen the Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** deceased lady lying motionless in the front hall of the residence. The version of A-1, as narrated above in Ext.P-1, etc., is also to the effect that the assailants had entered and thereafter, two of them had smothered the lady with a shawl and three others were engaged in the robbery and that, when A-1 objected to the same, they had tied him down. A-1 does not disclose to PW-1, with any degree of clarity, as to in which room the deceased lady was attacked and smothered to death. A-1 does not even say as to how he happened to be kept in the kitchen room. A-1 does not say anywhere that the assailants had forcefully placed him in the kitchen, after tying him down. 264. From the overall evidence on record and that too, especially based on the version given by none other than A-1, the highly probable inference that has to be made is that the victim would have been assaulted and smothered to death in a room and her body would have been dragged to the front room. That being so, if A-1 was fully innocent, the assailants could have tied him down in the same room or in the adjacent room. A-1 has no explanation, whatsoever, as to how he had reached the kitchen. If the assailants had forcefully tied him down, in the front room and in the adjacent room, then there is no question of him jumping over and moving to the kitchen, which is the rear-most Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** portion of the house, which appears to be highly improbable. Hence, going by the indisputable fact that the front door was found open and A-1 was found tied down in the kitchen, are highly suspicious circumstances, which clearly go to suggest that the version of A-1 as to how the crime incidents have taken place, is false. Circumstance No.4 265. On the one hand, A-1 gives a version about not only the smothering, but also the rummaging and robbery of the valuables in the house by the assailants. So also, A-1 would state that, after the victim was initially attacked by two of the assailants, suspecting that A-1 might offer some resistance, they had forcefully tied down A-1, etc. A-1 was ultimately found tied down in the kitchen room. If A-1 was actually tied down and kept in the kitchen room by the assailants, then there is no question of A-1 seeing the incidents of rummaging of the house and the robbery incidents, etc. This is also highly incriminating circumstances against A-1, which clearly goes to show that the version of A-1, that he was completely innocent and that, he was trying to protect the victim and that, the assailants are all complete strangers to him, etc., is a falsehood and that, A-1 is in league with A-2. Further, A-1's specific version is that, to create a Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** distraction, the assailants had put on the television in high volume, etc. Though A-1 would put up the story that the assailants had switched on the TV with high volume sound, he has no case that they had switched off the TV after the incident, which enabled others, like the family members of PW-1, to hear his cry later. The evidence of PW-1 does not, in any manner, show that the TV was still switched on when he had come to the scene of occurrence. So, obviously, going by the version of A-1, there was electricity supply in the house, when the assailants had attacked the lady and before they started rummaging the house for valuables. A-1 has no case, whatsoever, that the assailants had switched off the lights thereafter. True that, the prosecution has got a case that, when PW-1 reached the house later, there had not been electricity in the house, as someone had mischievously taken away the fuse. This, in all probability, could have been done by the culprit, after the murder and the robbery. So, indisputably, going by the version of A-1, there was electricity supply in the house, when the main crime incidents of murder and robbery had taken place. In other words, there was sufficient light, with the aid of electric lamps in the house, to enable A-1 to clearly see who all were the alleged assailants. In other words, A-1 would have surely Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** known that one of the culprits was A-2. There is clear evidence, on the basis of Exts.P-16 & P-20, that A-1 & A-2 are living in the immediate neighbourhood and that they and their families knew each other very closely. Althroughout, right from the version given by A-1 to PW-1, which forms the basis of Ext.P-1 FIS as well as the said version, as reiterated by PW-1 in his evidence and which is supported by A-1 and also the version of A-1 in his Sec.313 statement, is that all the assailants were complete strangers and unknown to him and he has no case that A-2 is one among the assailants. There is clinching evidence to show that A-2 was involved in the act of murder and robbery of the deceased lady. The strong and categorical stand of A-1, in completely suppressing the role of A-2 in the crime incidents, despite A-1's specific version that he had witnessed the crime incidents, is a highly incriminating circumstances against A-1. That being so, the highly probable inference therefrom is that A-1 was in cahoots and in league with A-2 (whose involvement in the above crime has already been clearly established) in the above crime incidents. Circumstance No.5 266. A-1 has not given any explanation or version, either when PW-1 had come to the scene or at any later time, as to how the alleged Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** assailants had got access and entered the house of the deceased lady on the night of 06.02.2006. Ext.P-5 scene mahazar would clearly show that the front door of the house or the other exit doors of the house has not, in any manner, been damaged or attacked by the outsiders. The front door is not found to be forcefully opened using any weapon like iron bar, etc. So, the culprits had gained access to the inside of the house, not by using any force and they could have gained access only with the help of a person, like A-1, who is residing in the house. Evidence of PW-1 shows that A-1 used to live in the room outside the house. A-1 has not given any explanation as to whether he had gone to his room before the assailants had gained access to the house. Ext.P-5 scene mahazar would clearly show that the said room was closed at that time and the key of the said room was found on the floor of the front hall of the house. The key was found in the midst of all the stuff that was lying down there. In that regard the relevant contents given on the first half of page 4 of Ext.P5 scene mahazar dated 7.2.2006 prepared at 4 AM, reads as follows: “..... . ടടി കചരുപടിനെടടിയടിൽ ഒരു തവാശക്കെവാൽ കടിടക്കുന്നെതവായടി കവാണുന ടടി തവാശക്കെവാലടിനെത്ത്കറ മയകൾ വശേയും Raja എനയും അതടിനു മറയവശേത്തു 17869 . എകന്നെഴയത്തുളതവായയയും കവാണുന ടടി തവാശക്കെവാൽ സടിറത്ത്ഔടടിനെത്ത് കതക്കുവശേത്തുള പമൂടടിയടിടടിരടിക്കുന്നെ മയറടിയയകട തവാശക്കെവാ ലവാകണന കവാണുന ...." Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** This fact, coupled with the fact that the victim suffered many antemortem injuries and A-1 had not sustained even a single minor injury, would also lead to the inference that A-1 has actually participated in the crime and the key to his room would have been lost in the scuffle. If the crime had been committed by completely unknown assailants, then, ordinarily, they would have brought some arms for getting access to the house, etc. Going by the version of A-1, not even a single person among the five unknown alleged assailants were carrying even a small arm or weapon with him. The said story of A-1, coupled with the other circumstances, would also be a highly incriminating aspect. 267. In Ext.P-5 mahazar, it is clearly stated that the front door of the house of the victim had lens to view from the inside. The fact that A-1 was only permitted to use for residence an outer room attached to the house, which did not have direct access to the house except through the front door and the fact that the front door had lens to view from inside would clearly show that the victim lady was taking precautions to ensure that the front door is open only after screening the visitors. Except for baldly stating that the assailants had come and attacked the victim and rummaged the house, A-1 has Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** no version or explanation as to how the alleged assailants had access to the house. So also, it has to be borne in mind that PW-1 has given clear evidence that a dog was reared in the house of the victim and that, at the time of the crime incident, no one in the house of PW-1, which is hardly 50 mtrs. away from the crime scene, had heard the dog barking. So also, it is clearly stated in Ext.P-1 scene mahazar, that the dog had not eaten the food given to it on the day of the incident. Ordinarily, it is probable that the dog would have barked quite ferociously, if complete strangers had approached the house. The fact that the dog had not barked, would also suggest that it would be A-1, who had given access to those outsiders into the house. In the light of these factual aspects, it could be inferred with high degree of probability that the culprit would have been someone who was very much known to A-1 and A-1 would have told the lady that someone who he knows well wants to come to the house and thus, he would have gained access to the house. 268. It has to be borne in mind that A-1 was the person who was last scene with the deceased lady and hence, in view of the implications flowing out from Sec.106 of the Evidence Act, the nondisclosure and suppression of the facts by A-1, as to how the culprits Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** had gained access to the house, is a highly incriminating circumstance against A-1. From the available evidence and materials, the Court could safely conclude or infer that the culprit, other than A-1, would have got access to the house, only with the aid and help of A-1 and this is also yet another strongly incriminating circumstance against A-1. Circumstance No.6 269. PW-1 has clearly stated that he had found A-1 in a tied down position in the kitchen room and that, his legs were strongly tied with clothes. But his hands were only loosely tied. This aspect along with some of the other incriminating circumstances mentioned hereinabove, would clearly lead to the inference that the criminal acts would have been jointly done by A-1 & A-2 with the direct help and involvement of A-1 and tying down A-1, etc., was only a drama enacted by A-1 & A-2 to suppress the real truth. 270. The version of A-1 is that the unknown assailants had reached the house and two of them had covered the face of the lady victim with a shawl and then smothered her and when A-1 tried to resist it, the assailants had assaulted A-1 and they threatened A-1 that if he rises any voice, they would kill him. Later, they had tied him Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** down, etc. The evidence of PW-12 (post-mortem forensic surgeon) and also as reinforced by Ext.P-7 post-mortem certificate would clearly show that the lady victim had sustained 13 ante-mortem injuries and the cause of her death was due to smothering. The specific version of A-1 is that the assailants could completely incapacitate A-1 from any resistance by tying him down, etc. If that be so, the intention of the assailants were only to commit robbery, and not commit the murder of the deceased lady, then the said five alleged assailants could have easily overpowered the lady and could have tied down her legs and could have gagged her mouth etc., in the same manner as they had with A-1 and could have robbed and left the scene. Ordinarily, such organized acts of robbery may be done only with the intention of committing robbery and if it is feasible, they would try to avoid committing grave offences, like murder, etc. There cannot be any dispute that the cause of death of the lady was due to smothering. There is not even a remote suggestion by A-1 in his version given to PW-1, etc., as to why the assailants had no option, but to smother the lady to death. If A-1's version that he was over powered and disabled from resistance by the assailants, are correct, then they could have used the same option of overpowering and Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** disabling the lady from any resistance, in the same manner as they had done with A-1. The fact that, even going by the version of A-1, the assailants had smothered the lady to death, would clearly lead to the inference that the lady became aware about the involvement in the above crime, of a person who is very much well-known to her and therefore, the culprits had no option, but to murder the lady, so that she will not speak out the truth, in respect of the involvement of the said person. In the factual matrix of this case, the said culprit, who is very well known to the lady, is A-1. It is also quite possible that since A-1 & A-2 are in the close neighbourhood and knew each other very closely, the lady would have also known A-2. So, the culprits would not have got any option, but to murder the lady, as the lady victim knew the involvement of the person, who is well-known to her, which is A-1 or it could be that, she knew A-2 as well. These indisputable factual aspects and circumstances, would clearly lead to the inference that accused persons would have no choice, but to murder the lady, as she knew at least one of the culprits or both of them. This is a highly incriminating circumstance against the accused. Circumstance No. 7 271. In Ext.P-1 FIS, PW-1 has _inter alia_ stated that when he Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** reached the scene of crime scene, A-1 had told him (PW-1) that when A-1 had tried to resist the assailants, who had attacked the lady, they had tied his hands and legs and had also covered his mouth, etc. However, PW-1 in his evidence before the Court has not stated as to whether A-1 had told him then that the assailants had not only tied his hands and legs, but had also covered the mouth of A-1 with a cloth. The specific evidence that has come out on record, based on Ext.P-1 as well as the version of PW-1 as well as the version given by A-1 in his Sec.313 statement, is that after the crime incidents, A-1 had made loud noise and this attracted the attention of family members of PW-1, who are residing 50 mtrs. away and they had awakened PW-1, who had immediately gone to the crime scene and he had found the kitchen door closed and he had heard A-1 making noise from the kitchen side and PW-1 had entered through the front door, etc. In other words, after the crime incident, the specific case of A-1 is that he had made loud noise, which attracted the attention of the residents in the house of PW-1. So, after the crime incident, the specific case of A-1 is that his mouth was not gagged and he could effectively make loud noise, etc. Assuming that the mouth of A-1 was also gagged by the assailants, as stated by him to PW-1 (this version Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** is recorded in Ext.P-1), then there is no explanation by A-1 as to how the gag on his mouth was removed, to enable him to make noise later. The indisputable fact is that, when PW-1 had entered the scene of occurrence, only his hands and legs were found tied and his mouth was not gagged. Ordinarily, culprits, who plan out such organized acts of robbery, would ensure that a domestic help in the house is not only tied down, but his mouth is also gagged to prevent him from making any noise. Equally, if the mouth of A-1 was never gagged by the assailants, then it is a highly suspicious circumstance. So, the fact that A-1's mouth was not gagged at the time when PW-1 reached the crime scene and A-1 could effectively make noise at that time, would also be highly incriminating circumstances, which would go to show that the very story put up by A-1, as to how the crime incidents had taken place and as if he is innocent, etc., is complete falsehood, pointing out his involvement in the crime. ## Circumstance No.8 272. A-1 has raised a specific case that, when he tried to resist, the assailants had assaulted him, etc. Not even a single injury was found on the body of A-1. DW-1 (Government Doctor) has clearly given evidence that his examination has disclosed that A-1 has not sustained any Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** injury, etc. Whereas, the victim has suffered 13 ante-mortem injuries. If the version of A-1, that he was innocent and that he tried to resist and that the assailants had assaulted him, etc., were correct, then certainly, at least some injuries would have been found on the body of A-1. The fact that A-1 has not sustained even a single minor injury on his body, will also be a highly incriminating circumstance to show that his version, that he had tried to resist, etc., is false. So also, A-1 has no explanation, whatsoever, as to why he had not made loud noises during the crime incident, other than the main plea that the assailants had threatened him not to make any noise. If A-1 was a loyal domestic help, who had been serving the lonely lady for some time, then the ordinary probable human conduct was that, at least to show some resistance, as the assasilants were not armed and he would have made some attempt to invite the attention of others, especially the family members of PW-1, who were residing hardly 50 mtrs. away from the crime scene. The evidence clearly suggest that no such effort was made by A-1 till the crime incidents were over and it is only thereafter that he started making loud noise, at around 12 midnight. ## Circumstance No.9 273. Ext.P-7 post-mortem certificate would clearly show the Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** details of the 13 post-mortem injuries suffered by the deceased lady. PW-12 (Forensic Surgeon) has also given evidence regarding the postmortem process. The details of the abovesaid 13 ante-mortem injuries suffered by the deceased lady are as follows : - 1 Abrasion 1x0.3cm obliqualy placed on the left side of bridge of nose with upper inner and 0.5 cm outer to midline and 1cm below the root of nose. - 2 Abrasion 0.5x0.2cm on the left side of face 3.5cm outer to the ala of nose. - 3 Contusion 1.5x0.5x0.5cm on the inner aspect of lower lip 1.5 cm to the right of midline. - 4 Contusion 1x0.5cm on the left side of face just outer to the outer abgle of eye. - 5 Multiple small abrasions over an area of 2x1.5cm on the back of left hand just above the root of middle finger. - 6 Abrasion 0.5x0.3cm on the back of left hand just above the root of little finger. - 7 Linear abrasion 10x0.2cm horizontally placed on the left side of back of trunk with its inner and 7cm outer to midline and 21cm below the top of shoulder. - 8 Multiple small abrasions over an area of 6x3cm on the front of right knee. - 9 Multiple small abrasion 2x1cm on the front of left knee. - 10 Abrasion 1x0.5cm on the front of left leg 10cm above ankle. - 11 Healing abrasion 1.5x0.5cm on the front of right leg, 12cm above the ankle, and covered with brown adherant scab. - 12 Contusion of scalp 6x3x0.5cm on the right side of top of hand, 6cm outer to midline and 6cm above the eyebrow. Crl.A.Nos.1527/18 & 773/19 - : 223 :- 13 Contusion of scalp 5x3x0.5cm on the middle of back of hand, just above the occiput. 274. Injury Nos.1 to 4 & 12 supra, found near the nose, midline, etc., could have been caused due to the forcible use of a shawl on her face and smothering, etc. Whereas, almost all the other injuries are not on the facial area of the victim, but on the other parts of her body. For instance, injury No.5 are multiple small abrasions found on the back of her left hand just above the root of the middle finger. Injury No.6 is on the back of the left hand just above the root of the little finger. Injury No.7 is near the top of the shoulder. Injury No.8 is near the front of the right knee. Injury No.9 is on the front of her left knee. Injury No.10 is found above the ankle. So, the abovesaid injuries, other than injuries 1 to 4 & 12, etc., would clearly show that the culprits had used force on the body of the victim. The very version of A-1 is that two of the assailants had smothered the lady to death. Injury No.7 viz., “ _linear abrasion of 10x0.2cm horizontally placed on the left side of back of trunk with its inner and 7cm outer to the midline and 21 cm. below the top of the shoulder_ ”, could have been inflicted while dragging the deceased lady from the bedroom, where the crime would have been committed and Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** the body would have been dragged from the bedroom to the front hall, where the body was found by PW-1. 275. The abovesaid factual aspects would clearly point to the inference that one of the assailants would have successfully smothered the victim to death, while the other would have put force on her body to ensure that she is disabled from, in any manner, resisting to the smothering process. These aspects would also clearly lead to the inference that A-2 would have been aided and assisted by A-1 to commit the above heinous crimes. 276. The clear implication from Ext.P-13 (a) confession statement of A-1 being evaluated in his conduct of the applicability of Sec.27 of the Evidence Act is that A-1 knew A-2 and that, A-1 also knew the whereabouts and residence of A-2. That apart, independently of this, their indisputable evidentiary materials, like Exts.P-16 & P-20, would also clearly show that A-1 & A-2 are living in the close immediate neighbourhood and that they are family friends and that they knew each other very well. 277. In this context this Court is also under a judicial obligation to consider whether there are any mitigating circumstances in favour of A1, which would dilute the aforementioned Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** m aggravating circumstances. In that regard, two such itigating pleas have been put forward by Sri.John S. Ralph, learned counsel appearing for A1. We will now deal with both the said pleas. 278. PW-3 (son of the deceased) has stated in evidence that some time before, his mother (deceased lady victim) had told him that A1 had warned her that there could be a possible theft in the house. That, on hearing this, the lady victim had handed over her gold chain to her son (PW-3). The second plea is that PW-3 (son of the victim) has deposed in evidence that earlier, her mother (lady victim) had pledged one of her gold ornaments for raising money. In that regard, the specific contention of A1 is that, earlier, A1’s father was the full-time help for the deceased lady, who looked after her farming activities and later, A1 became the domestic help. That, A-1 directly and through his father knew the financial condition of the deceased lady and that the evidence of PW-3 would also show that she was even constrained to pledge her gold ornaments, which shows that she was lacking in financial resources. That, since A1 very well knew that the lady was not of any financial resources, he would not have been party to the robbery and murder of the lady and also that a robbery would not yield him any proper dividend. Crl.A.Nos.1527/18 & 773/19 - : 226 :- 279. As regards the first plea, it is true that PW-3 (son) has deposed in evidence as above and that, A1 had warned the lady about the possible theft in the house, which induced her to hand over her gold chain to her son. As regards the second plea, it has come out in evidence that, the lady victim was having about six acres of agricultural land, in which her house is situated. True that, PW-3 had stated that, at some point of time, his mother was constrained to pledge her gold ornaments for raising money. Whether all the aspects relating to her financial status and possession of gold ornaments and cash was known to A1, cannot be stated with any high degree of probability. 280. The learned Public Prosecutor had submitted that the said aspects about a possible incident of theft in future, in her house, may have been deliberately made by the accused to create a smoke screen to make it appear as if A1 is innocent and that he is the ‘guardian angel’ of the aged lady victim. The abovesaid mitigating aspect, based on the first plea, cannot be completely brushed aside. However, the aggravating circumstances mentioned above are very strong and powerful, which unerringly points to the grave culpability of A1. It has to be borne in mind that A1 was a young man of the age of about Crl.A.Nos.1527/18 & 773/19 - : 227 :- 25 years and A2 was an unemployed young lad, aged 26 years, who was in dire need of money. 281. The inner working of the evil minds cannot be ganged with any degree of certainty by a court of law, especially when it is not equipped with material evidence in that regard by both sides. It may be that A1 would have been pulled into this evil drama at the instance of A2 and A1 would have tried to resist it and he would have warned the lady and subsequently, it would have become impossible to get out of the clutches of A2 due to reasons, which are not known to this Court. It could also be that A-1 was creatring a smoke screen of innocence by posing as if he is the protector of the old lady, by such advanced warnings of thefts. The aggravated circumstances mentioned hereinabove would manifestly speak about the truth of the matter, which points unerringly to the guilt of A1. These aspects would also have an equal value, as regards the second plea of A1. 282. Even if we assume that A1 was very well aware that the lady did not have many valuables, gold ornaments, cash, etc., in her house, he would have been dragged into the evil desires of A2, and it may not have been possible for A1 to get out of the said bad influence of A2. Crl.A.Nos.1527/18 & 773/19 - : 228 :- 283. Merely on account of these two aspects, this Court is not in a position to hold that those aspects are not only mitigating circumstances but would completely overweigh the aggravating circumstances hereinabove. Hence, we are constrained to repel the abovesaid pleas of A1. 284. Going by the abovesaid detailed appreciation of evidence, in the light of the implications flowing out from Sec.106 & Sec.8 of the Evidence Act, the repeated and consistent false pleas in Sec.313 stage, which itself could be taken as a strong incriminating circumstance against him, this Court is of the considered view that these aggravating circumstances would certainly form a chain of circumstances and there is no other conclusion, within all human probabilities, that A1 has acted in conjunction with A2, to commit the heinous crimes of house trespass, robbery and murder of the elderly deceased lady in this case. These aggravating circumstances are incapable of the explanation of innocence of the accused and it unerringly points guilt to the accused. These conclusions of this Court are also fully justified and fortified by the legal principles laid down by a recent verdict of the Constitution Bench of the Apex Court, rendered on 15.12.2022, in the case of _**Neeraj Dutta** v._ _**State**_ Crl.A.Nos.1527/18 & 773/19 - : 229 :- _**(Government of NCT of Delhi)**_ [2022 SCC online 1724, paras 58 to 61 thereof]. 285. Sri.John S. Ralph, the learned counsel appearing for A-1, would point out that, prior to the remand, the trial court had found that there are no incriminating circumstances to establish the guilt of A-1. After the remand, the only additional fact is regarding the additional materials of the finger print experts, borne out from Ext.P-27 series and that this Court has already held that the materials from Ext.P-27 series cannot be said to have established any incriminating circumstances against A-1. Hence, the learned counsel appearing for A-1 has seriously critiqued the approach of this Court in establishing the guilt of A1, solely on the basis of incriminating circumstances, and that the same would be amounting to something akin to a review of the pre-remand verdict. At the outset, it has to be borne in mind, that the legality of the finding in favour of A-1 has not been considered on merits by this Court in the previous round of criminal appellate process. This Court had set aside the acquittal of A-1, set aside the conviction of A-2 and had ordered for the remand of the matter to the Sessions Court, on the limited points, mentioned hereinabove. Hence, this Court, in the previous round of criminal Crl.A.Nos.1527/18 & 773/19 - : 230 :- appellate process, had no opportunity to assess as to whether the finding of the trial court before the remand, in favour of A-1 was legally correct. The challenge made by A-1, as against the previous criminal appellate judgment of this Court, was also rejected by the Apex Court. So, there is no question of review of the pre-remand verdict, in the facts and circumstances of this case. The remand was made by this Court in the previous criminal appellate process, by setting aside the acquittal of A-1 as well as the conviction of A-2, with a direction on limited points mentioned therein. Hence, after the remand process, the trial court has found it fit to hold that both A-1 & A-2 are liable for conviction of the alleged offences. So, the whole issues are at large in the present criminal appeal, as regards the issue as to whether A-1 & A-2 are liable for findings of guilt and conviction and consequential sentence, etc. We have already given our detailed reasonings and analysis for arriving at the conclusion, as regards the culpability of both A-1 & A-2. 286. The upshot of the above discussion is that, we are in full agreement with the conclusions arrived at by the Sessions court, Thodupuzha, as per the impugned judgment rendered on 22.10.2018 in S.C. No.407/2007 that both A-1 & A-2 are liable for conviction for Crl.A.Nos.1527/18 & 773/19 - : 231 :- the offences alleged against them. 287. The gravity of the offences disclosed against them are very serious and grave. A 64 year old elderly widow, was smothered to death by A-1, who was trusted by her, as her full-time domestic help, and by A-2, who is the friend of A-1. There are no grounds to interfere with the sentences imposed on them by the Sessions court. The Sessions court has rightly and lawfully imposed the sentence of life imprisonment on the accused persons, in regard to the alleged offence, as per Sec.302 read with Sec.34 of the IPC. The other sentences imposed on them, for the other offences as in Sec.450 & Sec.392 of the IPC, are also quite fair and just. The Sessions court has also ordered that the period of imprisonment already undergone by A-2 shall be set off against the sentence of imprisonment and that A-1 is also entitled to get the benefit of set off under Sec.428 of the Cr.P.C. 288. So also, there is no ground to interfere with the finding that the entire fine amount, if realised, shall be paid to the LRs of the deceased lady victim under Sec.357 of the Cr.P.C. In other words, we do not find any grounds to interfere with the conclusions of the Sessions court regarding the conviction and sentences Crl.A.Nos.1527/18 & 773/19 **==> picture [42 x 9] intentionally omitted <==** imposed on the accused persons in this case. Hence, for these reasons, both the Criminal Appeals will stand dismissed. **Sd/-** **ALEXANDER THOMAS, JUDGE** **Sd/-** **SOPHY THOMAS, JUDGE** sdk+ MMG vgd