Crl.A.No.461/2015 & connected cases (Mohammed Shereef v. State of Kerala; Sayedalavi @ Bava v. State of Kerala; Abdulkhader v. State of Kerala; Said Habib Koya Thangal @ HabeeB Koya Thangal v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** **CRL.A NO. 461 OF 2015** **AGAINST THE JUDGMENT IN S.C.NO.685/2005 DATED 17.03.2014 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-V, PALAKKAD.** **APPELLANT/ 1ST ACCUSED:** **MOHAMMED SHEREEF, S/O.ABDUL RAHIMAN, PARDAMGODE, MOOLANKODE, KIZHAKKANCHERY.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.E.VIJIN KARTHIK SMT.MANJU E.R. SRI.THOMAS SABU VADAKEKUT** ## **RESPONDENT/ STATE:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.V.S.SREEJITH, PUBLIC PROSECUTOR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2021, ALONG WITH CRL.A.403/2015 & 702/2015, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:** **Crl.A.No.461/2015 & - 2 - connected cases** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943 CRL.A NO.403 OF 2015** **AGAINST THE JUDGMENT IN S.C.NO.685/2005 DATED 17.03.2014 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-V, PALAKKAD.** ## **APPELLANT/ACCUSED NO.4:** **SAYED HABIB KOYA THANGAL @ HABEEB KOYA THANGAL, S/O.SAIDALAVI KOYA THANGAL, OTTAKATH VEEDU, THOZHUVAYOOR AMSOM, KARTHALA, VALANCHERY.** **BY ADVS. SRI.J.R.PREM NAVAZ SRI.BOBBY MATHEW KOOTHATTUKULAM SRI.P.T.SHEEJISH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY SRI.V.S.SREEJITH, PUBLIC PROSECUTOR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2021, ALONG WITH CRL.A.461/2015 & 702/2015, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:** **Crl.A.No.461/2015 & - 3 - connected cases** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** **CRL.A NO.702 OF 2015** **AGAINST THE JUDGMENT IN S.C.NO.685/2005 DATED 17.03.2014 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-V, PALAKKAD.** ## **APPELLANTS/ ACCUSES NOS.2 AND 3:** **1 SAIDALAVI @ BAVA, S/O.MUHAMMED, PUTHEN PEEDIKAKKAL VEEDU, KARINGANADU, VILAYUR, PATTAMBI.** **2 ABDULKHADER, S/O. MUHAMMED, APPAKANDEM VEEDU, ANAMKODU, VALLAPPUZHA.** **BY ADVS. SRI.SOORAJ T.ELENJICKAL SMT.V.A.HARITHA SRI.P.A.MOHAMMED SHAH SMT.P.M.MAZNA MANSOOR SRI.K.NANDAKUMAR SRI.P.VIVEK.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, THROUGH CIRCLE INSPECTOR OF POLICE, KOLLENGODE, PALAKKAD DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.V.S.SREEJITH, PUBLIC PROSECUTOR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2021, ALONG WITH CRL.A.461/2015 AND CRL.A.403/2015, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING:** **Crl.A.No.461/2015 & - 4 - connected cases** **K.Vinod Chandran & Ziyad Rahman, JJ. --------------------------------------Crl.A.Nos.461/2015, 403/2015 & 702/2015 --------------------------------------Dated, this the 12[th] October 2021** ## **JUDGMENT** ## **Vinod Chandran, J.** **Communal disharmony is the bane of civil society, especially one which celebrates 'unity in diversity'. In the case before us, the prosecution alleges that the accused, in furtherance of their common intention to sow the seeds of disharmony between two communities, committed a murder while the accused allege their arraignment only based on their religion.** **2. The prosecution case is that on the wee hours of 20.07.1996 the four accused, in furtherance of a conspiracy, hatched along with accused Nos.6 to 8, trespassed into the veranda of the house of one Mani, abducted him and committed his murder, which was also intended at causing disharmony, on the ground of religion, between the Hindu and Muslim communities. The offences alleged were under Sections 120B, 449, 364, 302 & 153A read with Sec.34 & 109 of the Indian Penal Code [for brevity, 'the IPC']. Accused Nos.6 to 8 were acquitted by the trial Court. The other accused, though acquitted under Sec.448 IPC, were convicted under the other** **Crl.A.No.461/2015 & - 5 - connected cases** **provisions charged and also under Sec.447 IPC. All the accused were sentenced to imprisonment for life separately under Sec.302 and Sec.364 and RI for a period of three years and three months respectively under Sec.153A and Sec.447 IPC, to run concurrently.** **3. Sri.B.Raman Pillai appearing for A1 argued that the entire case has been built on mere assumptions, conjectures and surmises. Learned Senior Counsel seriously challenged the acceptability of PW18's evidence. The arrest of A1 to A3 were on 06.09.1996 and they were produced in Court on 07.09.1996. The Test Identification Parade [for brevity, 'TIP'] was conducted with inordinate delay on 01.11.1996, after about four remand extensions, when the accused were produced before Court. Serious allegations were raised against the conduct of the TIP by PW59, which is alleged to be perfunctory, shabby and downright illegal. While the accused were in their twenties, the non-accused, all of whom above thirty, were chosen by a Peon in a perfunctory manner without reference to the appearance of the accused. One of the persons, who participated in the parade, was a witness-PW20, who is omnipresent. PW20 is a close associate of the deceased and was a party worker. PW20 in all probability would have accompanied the witnesses and could** **Crl.A.No.461/2015 & - 6 - connected cases** **have easily aided the identification of the accused. On the question of the reliability of identification in a TIP, the learned Senior Counsel placed reliance on** _**Budhsen v. State of UP [(1970) 2 SCC 128]**_ **,** _**Hasib v. State of Bihar [(1972) 4 SCC 773]**_ **,** _**Ravindra alias Ravi Bansi v. State of Maharashtra [(1998) 6 SCC 609]**_ **,** _**Ravi @ Ravichandran v. State rep. by Inspector of Police [(2007) 15 SCC 372]**_ **and** _**Md.Sajjad @ Raju @ Salim v. State of West Bengal [(2017) 11 SCC 150]**_ **.** **4. It is pointed out that the murder, was not as per the picture painted by the prosecution. The scene plan does not speak of any veranda to the house of the deceased. The addition of the same in the FIS and testimony of PW18 is only to buttress the identification, which is otherwise impossible at the time when the four accused, are alleged to have woken up the deceased and his family. There is evidence to show that there was not even moonlight on the said night, being a 'Karkidakavavu'-day and there is no possibility of PW18 identifying the four persons, whom she has only seen once previously. The FIS is one created later, because as per the evidence of PW18, she lost consciousness while taking her husband to the hospital and woke up only later in the family house of her husband. Though some of the witnesses, who are alleged to have helped PW18, speaks of the deceased having** **Crl.A.No.461/2015 & - 7 - connected cases** **told them about four people who came from Palghat having cheated him, no such dying declaration is spoken of by PW18. PW25 in his Sec.161 statement though admitted acquaintance with A1, later denied it. All the witnesses, who spoke for the prosecution as to what transpired after the victim was injured, are active workers of the party, to which the victim also owed allegiance. The medical evidence does not tally with the prosecution case, since rigor mortis according to the Doctor would occur within 12 hours of death. The postmortem examination showed rigor mortis having been fully established in the afternoon of the next day; when the evidence is to the effect that the victim was moving even at 5 a.m on the same day when he reached the hospital. It is also pointed out that the postmortem examination showed digested food in the stomach, which again throws doubt on the time of death as spoken of by the prosecution. It is pertinently pointed out that the Doctor has not spoken about the injuries and reliance is also placed on** _**State of U.P. v. Mohd Iqram [(2011) 8 SCC 80]**_ **,** _**Raju V. State of Kerala [2017 KHC 984]**_ **and** _**Joseph Mathai @ Jose v. State of Kerala [2019 KHC 934]**_ **.** **5. Learned Counsel Sri. Prem Navas appearing for A4** **adopted the arguments of the learned Senior Counsel.** **Crl.A.No.461/2015 & connected cases** **- 8 -** **Emphasizing the case to be one based merely on circumstantial evidence, it is pointed out that the identification, based on a single sight 20 days before, is highly doubtful. Throwing challenge on the time of death, it is pointed out that PWs 17, 19, 22 & 24 saw the victim alive and were with him till he was taken to the hospital. The postmortem report shows the death to be, at around 2 O'clock and considering the injury in all possibility the accused would have died within five minutes of the infliction. The witnesses are not credible witnesses for that simple reason. Though '** _**falsus in uno falsus in omnibus**_ **' is not a principle applicable to India, the credibility of such witnesses can be tested by Court. In certain cases, such interested testimonies can be eschewed in their entirety. The learned Counsel relies on** _**Balaka Singh v. State of Punjab [(1975) 4 SCC 511]**_ **,** _**Suraj Mal v. State [Delhi Administration] [(1979) 4 SCC 725], Noushad v. State of Karnataka [(2015) 2 SCC 513] and Ram Laxman v. State of Rajasthan [(2016) 12 SCC 389]**_ **. Learned Counsel also points out that in addition to PW18 and the deceased there was one another adult; Mariyappan, available in their house, who has not been questioned by the Police or examined in Court.** **6. Sri. Sooraj Elenjikkal appears for A2 & A3 and in addition puts forth the following arguments: The testimony of** **Crl.A.No.461/2015 & - 9 - connected cases** **PW1 & PW2, official witnesses, indicate that the subsequent events after the murder have not been properly placed before Court. PW1, a CPO, says that he took the body to the hospital and PW2, a dog handler of the Police, asserts that he saw the body at the scene of occurrence. PW56, the I.O, places full faith on these two witnesses, in which event the entire prosecution case of the deceased having been taken by PW18 and the other witnesses to the hospital is a deliberate falsehood seriously affecting the credibility of all the witnesses. The learned Counsel emphasizes the inordinate delay insofar as the incident having occurred in the year 1996 and the trial having been completed only in the year 2004. The investigation itself took 8 years and the final report was filed on 11.02.2004. There were applications made by the victim's family before the High Court for appointment of a Special Public Prosecutor and the trial commenced only on 15.03.2013. Adopting the arguments of the learned Senior Counsel concerning the TIP, it is pointed out that if the identification in the TIP is found to be bad, necessarily the identification in Court after about 18 years cannot be believed. Concerning the recoveries, it is submitted that the witnesses had turned hostile and the same cannot be believed. As far as the scientific evidence is concerned, there is only** **Crl.A.No.461/2015 & - 10 - connected cases** **detection of human blood on a sword allegedly recovered from A2's house, which cannot offer any link to the crime. It is also pointed out that though the recovered weapons were sent to Court on 21.04.1997, they reached the Forensic Science Laboratory only on 22.04.1997. The identification is also seriously assailed, for the witnesses having not pointed out any distinguishing features of the four accused. To bring home the caution required in a case based only on circumstantial evidence, the learned Counsel would rely on** _**Ashish Batham v. State of Madhya Pradesh**_ **[** _**(2002) 7 SCC 317**_ **]. On the inordinate delay in conducting the trial, the learned Counsel would rely on** _**Santhosh De v. Archna Guha**_ **[** _**AIR 1994 SC 1229**_ **] and** _**Pankaj Kumar v. State of Maharashtra**_ **[** _**AIR 2008 SC 3077**_ **].** **7. Ext.P6 is the FIS given by the wife of the victim, PW18, while she was at the family house of the deceased. She had been residing with her husband and two children in a shed constructed inside 8 acres of forest belonging to her husband, which was purchased by him four years back. They also had one person, called 'Mariyappan', residing with them, who looked after the herd. On 13.08.1996 at around 8.30 p.m, the entire family went to sleep. At about 2.00 a.m on the next day, somebody called her husband from outside. On enquiry, it was told that they were the persons** **Crl.A.No.461/2015 & - 11 - connected cases** **who came earlier and assured that there was nothing to be afraid of. PW18 and her husband went out, she with the hurricane lantern, which is kept lit at night with the wick lowered. She saw four young men standing outside, who had come earlier; about 20 days back, enquiring about the forest. She also clarified that by 'forest' what was meant by her is the agricultural land. The visitors said that they had come for the purpose spoken of earlier and she specifically asked what is the purpose at night. Her husband replied that they wanted to go hunting, which they expressed last time itself. PW18 cautioned her husband from going out in the night; when he told her that there is nothing wrong and that the visitors had come earlier also. He also told her that they had come from Palghat and he would just introduce them to Vellayyan. He took a torch having five cells and proceeded, with the four following him.** **8. Immediately after that, when she was relieving herself, she heard the scream of her husband and ran in the said direction. She saw her husband lying on the pathway to the road with injuries on his neck and shoulders. The four persons who accompanied him were not seen anywhere and immediately she heard two motorbikes starting and moving away. When she asked her husband as to what happened, he told** **Crl.A.No.461/2015 & - 12 - connected cases** **her that the four hacked him and asked her to call somebody to take him to the hospital. She ran to the nearby colony and informed the people in Vellayyan's house; since he was not there. Hearing her cries, Kannan, Chadayan, another Kannan and Vellayyan (obviously another with the same name) came. They also met Sayeedannan and Vellayyan on the way, who joined them. At the scene of occurrence, Sayeedannan detected a hat lying on the ground and a baton, which was carried by one among the four. By that time Kannan called the car of Prakasan and PW18, along with Thilakan and Sivan carried the victim bodily into the car and took him to the hospital at Palghat. PW18 also said that she lost her consciousness when they reached the hospital and she regained it only at 6 O'clock. When she was brought to the family house of her husband, she heard about the death of her husband. She said that she would be able to identify the four assailants and claimed that all of them wore hats and raincoats having the colour of cement. One person was wearing a red hat and all of them were about 30 years in age. They had come home 20 days back, enquiring whether the property was for sale. On that day, her husband had shown them the entire property. They had come around 1.30 in the afternoon in motorbikes and were wearing loose pants and shirts and all of them were wearing** **Crl.A.No.461/2015 & connected cases** **- 13 -** **hats on that day also. She specifically said that one of them, who was wearing a red hat, was wearing a hat of the same colour at the earlier time also. He is said to have removed his hat when talking and she noticed that he had short hair. She claimed that the four identifiable persons had murdered her husband, who was the President of the BJP in the Muthalamada Panchayat.** **9. The wife of the deceased gave evidence as PW18 in tune with what she has stated in the FIS, but with more details; which cannot be treated as an embellishment as such. The details were so far as she having raised the wick of the lantern while going out and having seen the visitors in the lean-to of the shed. One person was holding a stick and her husband went inside to wash his face and put on his shirt and he came out with a torch. She also stated that one of the bikes was noisy. She tied her husband's lungi on his neck and ran to the colony with the torch of her husband. When Vellayyan was called, he was not present and then she went to Kannan, who called everybody else who together joined the injured victim. She also spoke of having met Vellayyan with Sayeedannan on their way to where her husband was lying. She lost consciousness in the car itself.** **Crl.A.No.461/2015 & - 14 - connected cases** **10. The sequence of events immediately after PW18 found her injured husband has been spoken of by PW17, PW19, PW21, PW22 and PW24. PW17, Nagarajan, is a tribal residing in the colony near to which the victim was murdered. He had acquaintance with the victim from his childhood. PW17 spoke of the victim having gone to Thirumurthi Mala and come back; the incident having occurred that night. He was sleeping at his house when PW18 came to the colony at around 2 O'Clock and informed them about her husband having been hacked. Kannan [PW24] and Vellayyan went along with PW18 to the scene of occurrence. On their way, Sayeedannan and Vellayyan [PW19] joined them. When they reached there, Sayeedannan asked the victim as to what happened and he replied that four persons, who came from Palghat, hacked him. PW17 spoke of others having taken the victim to the hospital and he was informed of the death on the next day. He saw the baton and hat lying in the scene of occurrence and identified them as MO1 and MO2. He also deposed that the victim had a saffron dhoti around his neck and PW18 was carrying a torch.** **11. PW19 is Vellayyan, who along with Sayeed Muhammed, was standing guard over the agricultural land of the latter. He heard the sound of two motorcycles, going towards KSEB quarters, of which one had a louder sound. He** **Crl.A.No.461/2015 & - 15 - connected cases** **talked to Sayeed Muhammed about the vehicles at night and they presumed that it had come to one Ramakrishnan's house, whose son was in the hospital. Later, when he was patrolling the property, he saw the motorbikes parked near the quarters. There was nobody present and he went back to guard point and told Sayeedannan about the motorcycles. Again, when they were talking they heard the motorcycles leaving the spot. He saw the bike with the louder sound in the front and the other following. When they turned the torchlight on the second bike, they saw two persons riding on it and the bikes were proceeding at high speed. Then they saw the torchlight of people approaching the quarters and went to enquire. They saw PW17, PW18, PW19 and others. Sayed Muhammed then asked PW18 as to what happened and she replied that four people, who had come for hunting, hacked her husband. When they reached the victim, Sayed Muhammad asked him as to what happened and then he too said that four boys who came from Palghat to hunt cheated him and hacked him. The victim asked for some water which Sayed Muhammed brought in a pitcher and handed to PW18, who gave it to her husband. The victim then wanted to pass motion and PW18 removed his underwear, to facilitate that. PW19 removed the saffron dhoti and gave his blanket to cover the victim. He also spoke of the victim having been taken in** **Crl.A.No.461/2015 & connected cases** ## **- 16 -** **the car of Prakasan [PW21].** **12. PW21, Prakasan, was the driver who took the victim to the hospital. He was driving the car of one Manoharan and he spoke of being woken up on the 'Karkidakavavu' day by Kannan, Sivan and Santhosh at around 2.30 a.m. They told him that four persons, who came for hunting, hacked Moni, who was lying near Eecharampara and they required the vehicle to take the victim to the hospital. He immediately woke up the owner of the car and took the car to Vellaramkadavu and on the way he picked up Subramanyan and his mother. He parked the car near the KSEB quarters and the passengers of the car went to the place where the victim was lying. The victim was bodily lifted into the car and Gopala Thilakan[PW22], Subramanyan, Sivan and PW18 accompanied the victim to the hospital. He also spoke of PW18 having swooned in the car and himself having taken her to the family house of her husband, after being informed of the death of the victim. PW22 is one Gopala Thilakan, who was woken up around 2.30 by Kunju, a Forest Watchman and his neighbour Abdulla. He was informed of the attack and it was requested that he accompany the victim to the hospital. He immediately proceeded with the two, after taking a torch. On reaching the scene of occurrence, he saw the deceased lying with his head on the lap of Vellayyan and** **Crl.A.No.461/2015 & - 17 - connected cases** **feet in the lap of Nagarajan. When he asked him as to what happened, the deceased told him that four persons, who came for hunting, called him and when he came to the spot, they hacked him. When he asked the victim as to who were the assailants the response was that he could identify them by sight. PW22 also deposed in tandem with the other witnesses as to how the victim was transferred to the hospital. Even when they reached the District Hospital at around 5 a.m., the victim was alive was his categorical statement. He confirmed that PW18 was unconscious in the car and the driver was asked to take her back home. He pointed out to the police the scene of occurrence and witnessed the scene mahazar at Ext.P8. The baton and red hat were identified. The torch-MO3 was seized from the shed in which the deceased was residing.** **13. PW24, another Kannan, had seen the two bikes on the 'Karkidakavavu' day, one a bullet and the other having lesser sound. He also spoke of the vehicles having carried two persons each. He does not speak of the incident as such. PW20, Selvan, was informed by one Chadayan that the victim was hacked by four persons, who came from Palghat. He immediately called a car and went to the District Hospital, Palghat with Nagarajan and Santhosh. When he reached the hospital at 5.15 a.m, he saw the victim dead in the Intensive** **- 18 -** **Crl.A.No.461/2015 & connected cases** **Care Unit. He was present at the time of the inquest and was a witness to Ext.P7 Inquest Report. PW25, Devadas also did not see the incident and was not available at the scene of occurrence. He spoke of having seen four persons coming in a bike about 20 days back when he was grazing cattle near the electricity quarters. They made enquiries with him as to whether anyone was staying on the top and whether it was Mani's house. When he replied in the affirmative, they asked him if Mani was available and he responded that he had seen him some time back. They proceeded to Mani's house and he also saw them going around the property. After about 45 minutes, they came back and he remembers one of them as the person who comes for donations to the Mosque. He identified the said person as a lean, tall person with a beard, i.e. A1; but did not identify the others. He also said that earlier the Police had shown him a photograph of A4 whom he identified as one of the four, who came to Mani's house. Before Court he identified A4 as the person he saw in the prison at Alathur. He does not remember the number of the motorbikes in which the four came to Mani's house. PW26, another acquaintance of Mani, spoke of the deceased having told him about the four persons who came to look at the forest.** **Crl.A.No.461/2015 & - 19 - connected cases** **14. PW18 had categorically identified the four assailants, who had called her husband out of the house on the pretext of a hunt and murdered him later. The appellants assail the identification made after 18 years and challenged the TIP as an improper exercise. The appellants also relied on certain inconsistencies which we will first deal with. It was argued that the site plan Ext.P13 or scene mahazar Ext.P8 does not show a veranda; which is created to facilitate identification of the four appellants, which otherwise would have been impossible given the pitch dark night of 'karkidakavavu-day' (new moon day in the Malayalam month of karkkidakam). We cannot countenance the same since the site plan encompasses the area around the spot of occurrence which shows the location of the rock where the victim was lying injured, the nearby houses and the shed in which the deceased was residing, without any pictorial representation of the shed. As far as the scene mahazar is concerned, it depicts a thatched shed which definitely will have an overhang on all sides. The mahazar also speaks of a 3/4[th] meter (3 and odd feet) wall with a roof of palm leaves tied on bamboo poles having a height of 5 feet, with a half-a-meter entrance closed by a wicket gate of bamboo. Hence any person entering the house or at least attempting to make themselves visible** **Crl.A.No.461/2015 & - 20 - connected cases** **will have to crouch and stand under the thatch, for them to be visible to the persons standing inside the shed. The four who came at night in pitch dark would definitely show themselves, to ensure that they are welcomed, for which they also assured the inmates that they were people who came earlier and there was nothing to fear; as spoken of by PW18. It is also normal that, a lantern is kept with the wick lowered in houses not lit by power and any intrusion would first be met by raising the wick to have clear vision. There is no veranda spoken of by PW18 and it is just said that they stood inside the 'irippu', which in the vernacular means inside the overhang of the roof thatch. PW18 herself recognised them from her earlier meeting and was further reassured by her husband who had spent more time with them; twenty days back when the four went around the property. We find no embellishment to merely facilitate identification.** **15. The appellants argued that the torch which was in the hands of the deceased was seized from the shed which is highly improbable if the version of PW 18 is believed. We find no credence to the said argument since PW18 specifically stated before Court that the lantern, torch and the children were entrusted with her aunt, Vellachi when the victim was taken to the hospital. The next contention is that it was the** **Crl.A.No.461/2015 & connected cases** ## **- 21 -** **deposition of PW 18 that her husband when proceeding with the four persons who came at night told her that he would entrust them with Vellayan; Vellayan was categorical that he does not go for hunting. As we noticed, in the Tribal Colony there were two Vellayan; one who accompanied PW18 from the colony itself when she went for help and the other, whom she met on her way from the colony to the scene of occurrence. It is also pertinent that one Vellayan, who was examined as PW 19, had been guarding another agricultural land along with its owner Sayeed Mohammed. Further, those who go for hunting request the company of a tribal, only for the acquaintance they have with the forest, as a guide. Though the deceased and Vellayan may not be hunters themselves their lives being intermingled with nature, they are good facilitators for anyone desirous of hunting in the forests.** **16. Now we come to the evidence of PWs.1 and 2, which juxtaposed with the medical evidence is argued to have invalidated the depiction of murder and also the subsequent events, as stated by the witnesses hereinabove. PW 1 is the Constable who said that he took the body to the hospital. In fact, his deposition is that while he was working as Police Constable at the Kollengode Police Station, Mony's body was taken to the District Hospital and he stood 'body guard'.** **Crl.A.No.461/2015 & connected cases** **- 22 -** **This does not necessarily mean that he took the body to the hospital. PW2, the dog handler of the Police very pertinently stated that he saw the body of the deceased at the scene of occurrence when he went there with the dog to explore the possibility of sniffing out any material evidence. The statement is categorical, but, despite PW2 being an official witness, especially considering the overwhelming evidence of how the victim was taken to the hospital, we cannot rely on the same. Either the witness was lying, or confused or he only meant to say that he saw the place where the body was lying. The version of PW18, wife of the deceased is corroborated by PW17, PWs.19, 21 & 22. Immediately after the slashing of the victim, PW18 saw him and the other witnesses came to the scene of occurrence, on PW18 raising an alarm. The mere fact that all these witnesses are affiliated with BJP does not enable this Court to eschew their evidence totally. In fact, there is no evidence of enmity between the said witnesses and the four assailants. The four appellants who are alleged to be perpetrators of the crime are also strangers to the said witnesses. We do not think that they are tutored witnesses especially since they never attempted to depose anything other than what they could have probably seen and noticed. In this context, it is to be pointed out** ## **Crl.A.No.461/2015 & - 23 - connected cases** **that PW19 who was making rounds in the property of Sayeed Mohammed at night, saw two bikes, twice. Once, they were seen parked without any person nearby and then, when four people were proceeding from the scene of occurrence on the said bikes. PW19 also said that when he saw the bikes speeding away, he directed the torchlight on the persons travelling on the second bike. However, PW19 did not attempt to depose the Registration Number of the bikes or identify the persons seen on the bike following the other one.** **17. One other argument is concerning the other adult residing along with the family of the deceased; Mariyappan. PW56 was in charge of the station in which the FIR was registered. He first inspected the scene of occurrence and was also the author of Ext.P7 inquest report and P8 scene mahazar. PW56 categorically stated that he questioned Mariyappan who was mentally retarded. PW18 also confirmed this fact. The appellant contends that this was never stated in the FIR. We do not think that the mental retardation of Mariyappan was a relevant fact which should have been necessarily stated in the FIR. As is trite, the FIR is not an encyclopedia of the entire incidents** _**Superintendent of CBI v. Tapan K.R.Singh**_ **[** _**2003] 6 SCC 175**_ **]. The defence, based on inconsistencies from the evidence of PWs.1 and 2 would raise** **Crl.A.No.461/2015 & - 24 - connected cases** **a hypothesis that the said Mariyappan was an able-bodied young man who had an amorous relationship with PW18; which led to the murder of the deceased. The deceased was a prominent person of the locality, associated with a political party and its local leader. We do not think that the local people would enable a cover-up, to protect the wife and her alleged paramour and accuse four strangers, merely on religious lines. We find the theory as projected by the defence to hold absolutely no water and provides no reasonable hypothesis of innocence to aid the accused.** **18. The next contention challenging the version of the prosecution witnesses is based on the medical evidence. There is also an allegation raised that, the Doctor has not stated before Court the result of the postmortem examination as such. PW47 is the Doctor who marked Ext.P25, certificate of postmortem examination. Though there was no verbatim reproduction of the report, the postmortem findings have been spoken to by the witness. Eleven external injuries and two internal injuries were noticed. The cause of death was specifically stated to be injury No.1 which is a cut injury to the neck. Along with the corresponding internal injuries, injury No.1 was stated to be sufficient to cause death in the ordinary course of nature. Injury No1 is also stated to be** **Crl.A.No.461/2015 & - 25 - connected cases** **possible of being caused by MO21 sword. Injury No.2 is a gaping internal wound that also can be caused by a weapon like MO22. Injuries No.3 and 4 are linear injuries that can be caused by MO23. Injury No.5 is a shelving cut injury that has cut the scapular bone and injury No.6 could be a defence wound was the clear deposition of the Doctor. It was also deposed that injuries Nos. 3 and 4 could be inflicted by an attack on the backside. A perusal of Ext.P25 would indicate that the other four injuries out of the eleven mentioned by the Doctor are mere aberrations that are not relevant to find the cause of death. Hence it cannot be said that the Doctor has not deposed on the injuries revealed in postmortem examination or the cause of death.** _**Raju and Joseph Mathai @ Jose**_ **(both supra) have no application since there the postmortem certificate alone was marked.** _**Mohd Iqram**_ **(supra) was also a case in which there was not even a whisper by the Doctor as to the contents of the postmortem examination report which alone was held to be the substantive piece of evidence, in law.** **19. The medical evidence clearly indicates a homicide and the injuries caused were possible by the weapons recovered as spoken of by the Doctor. In cross-examination, the Doctor has further deposed that injury No.1 neatly cut** **Crl.A.No.461/2015 & - 26 - connected cases** **the jugular vein and a person suffering that injury could have died within five minutes to one hour. In crossexamination, it was also stated that at the time of postmortem examination rigor mortis was fully established, which normally would commence after half an hour and be fully established after twelve hours. It was also elicited in cross-examination that the stomach was 2/3[rd] filled with brownish fluid, digested food material and onion pieces with a sweetish smell. The Doctor also opined that digested food would be emptied from the stomach to the small intestine within four to six hours.** **20. The arguments based on the above opinion elicited in the cross-examination are the following. If rigor mortis was fully established, then the murder would have been caused before 1.30 in the early morning of 14.08.1996. The fact that the stomach was not completely empty during postmortem examination indicates that the death was caused only within six hours of the postmortem examination. If the testimony of PW18 is believed and the whole family slept at 8.30 p.m, the stomach would have been completely emptied by 2.30 a.m. when the murder is alleged to have been committed. PW22 categorically stated that the deceased was alive when they reached the hospital at 5'O clock which again puts to** **Crl.A.No.461/2015 & - 27 - connected cases** **peril the time of death as alleged by the prosecution.** **21. As far as rigor mortis is concerned, we extract here the following from 'Short Encyclopaedia of Medicine for Lawyers' by Walter Montague Levitt M.D, F.R.C.P (London)** ## **published by Butterworths:** **“Rigor: a chill associated with shivering and accompanied by rapid rise of temperature. It may be followed by sweating and fall of temperature. Rigor Mortis the stiffening which takes place in the body after death. It affects mainly the muscular system and includes both the voluntary and involuntary muscles, and appears to be due to chemical changes associated with dehydration of the muscles. The earliest manifestations of rigor mortis are found in the muscles of the eyelids and the lower jaw, followed by the muscles of the neck, face, chest, upper extremities, trunk and lower extremities, in that order. Many factors influence the appearance of rigor mortis so that it is unreliable as a guide to the interval which has elapsed since death, but generally speaking, it will be well established in ten to twelve hours. It begins to pass off in about thirty-six hours, but again, this is variable. The duration of rigor mortis is increased by exposure to cold. Other factors influencing the onset and duration of rigor mortis are the state of the individual at death, whether exhausted, suffering from starvation or the like, and also the development of the muscles. Rigor mortis may be simulated in bodies which have been** **Crl.A.No.461/2015 & - 28 - connected cases** **exposed to intense heat, in which stiffening occurs due to different chemical changes. So also, stiffening of the body as a result of exposure to cold may simulate rigor mortis. Another condition which may be confused with rigor mortis is instantaneous rigor or cadaveric spasm, which may occur at the moment of death and most commonly affects the muscles of the hand. Its importance is that the articles grasped in the hand can only be removed with considerable force and so many remain to provide important evidence. Instantaneous rigor cannot be simulated or produced by any method after death (see Glaister.(1962). Medical Jurisprudence and Toxicology, p.115)”.** **22. The authoritative text, hence, speaks of rigor mortis being established in 10-12 hours generally, dependent on various factors. From the underlined portion (supplied by us) above, it is also clear that the same is unreliable to ascertain the exact time of death. Dr B.Umadethan, a celebrated Pathologist, in his book 'കകുററ്റാനനന്വേഷണതത്തിലല വവൈദദ്യശറ്റാസസസസ' (Medical Science in Crime Investigation) (February 2021 Edition page-85), opines that in tropical areas like Kerala, the muscles in the face and neck become stiff in 1-2 hours, the muscles in the arms within 2-4 hours and the muscles of the legs within 4-6 hours. According to him, in 6 hours from death, every muscle in the body becomes stiff and** **Crl.A.No.461/2015 & - 29 - connected cases** **within 6 hours, a cadaver would be like a board or plank. In such circumstances, even if death occurred after 5 a.m as spoken of by PW22, rigor mortis would have been fully established by 1.30 p.m when the body was subjected to postmortem examination. We say 'even if' because the Doctor does not speak about the exact time of death and only makes observations in general. As far as rigor mortis is concerned, if the death was between 2.30 and 3.30 a.m or 5 a.m, it would have been fully established when the post-mortem examination was conducted. We have also to notice that the time stated by the witnesses is not by the clock and is only an approximation. Immediately after the victim proceeded from the house with the four visitors, PW18 heard his cries and ran to her husband's help to see him lying grievously injured. She enquired as to what transpired and ran for help from the nearby tribal colony. The other prosecution witnesses joined her and they saw the victim alive. This is quite probable, since the Doctor's opinion is that the victim would have been alive after the injury inflicted, for minimum 5 minutes and maximum one hour. A car was summoned and he was taken, bodily into the car. In any event the witnesses would have reached the victim, within one hour and it is credible that the victim talked to the witnesses at the scene of** **Crl.A.No.461/2015 & connected cases** ## **- 30 -** **occurrence and not later. The statement that the victim was alive at 5 a.m, is the statement of PW22, a layman and not an expert. The victim was in a moving car and any movement of the limbs caused by the momentum of the vehicle could be taken as a sign of life. PW22 does not say that the victim spoke in the car nor does he speak of a definite indication of life.** **23.** _**Piara Singh v. State of Punjab**_ **[** _**(1977) 4 SCC 452**_ **] held that the evidence of a medical man or expert is just an opinion and when there is glaring inconsistency between direct evidence and the medical evidence in respect of the entire prosecution story, there could be found a manifest defect in the prosecution case. We have already found that rigor mortis, in tropical climates occur within 6 hours. The finding in** _**Surinder Singh v. State of Punjab [1989 Supp (2) SCC 21**_ **] was on the facts of that case and the medical opinion was found to be another relevant factor.** _**State of Uttarakhand v. Darshan Singh**_ **[** _**(2020) 12 SCC 605**_ **] discussed several decisions to hold that when medical evidence makes ocular testimony improbable, it becomes a relevant factor and if it rules out every possibility of the ocular evidence being true, the latter may be disbelieved. Here, the medical evidence does not either make the ocular** **Crl.A.No.461/2015 & - 31 - connected cases** **evidence improbable or render it impossible. As we noticed the time at which PW18 said, the family slept and when they were called are only approximation and if the death occurred within one hour there is possibility that the stomach was not emptied. We cannot rubbish the prosecution case merely for the reason that there were some onion pieces found in the stomach of the victim, which is not a glaring inconsistency considering the time frame involved.** **24. The defence also harped upon the fact that there was no wound certificate or a death intimation, which normally a hospital issues on initial admission, depending on whether the person is alive or dead. The prosecution case is that the neighbours, summoned by the wife of the deceased, brought him to the hospital and reached there by around 5 a.m, spoken of by several witnesses. The postmortem examination was conducted on the very same day at 1.30 p.m. We do not think there is any doubt regarding the death having been caused after 2'0 clock in the early morning, because of the injuries specifically spoken of by the Doctor. The prosecution could have produced the wound certificate or the death intimation report, but the absence of that alone would not discredit the case set up by the prosecution. The evidence of DW1 and DW2 does not aid the defence. DWs 3&4** **Crl.A.No.461/2015 & connected cases** **- 32 -** **were summoned to produce the GD entry of the Kollengode Police station, on the crucial day and DWs 5&6 were summoned to speak on the absence of a wound certificate or death intimation. The official witnesses summoned said, the documents would have been destroyed in the normal course since the trial was after 18 years.** **25. Now we have to deal with the compelling argument addressed by the accused/appellants regarding the delay in the conduct of trial, relying on precedents of the Hon'ble Supreme Court.** _**Santhosh De**_ **and** _**Pankaj Kumar**_ **(both supra) are cases in which the extraordinary powers of the High Court were invoked for reasons of delay in conducting trial; while here, we exercise the appellate powers.** _**Archna Guha**_ **(supra) considered several appeals from the Patna High Court wherein the orders quashing the proceedings were challenged, which orders stood confirmed.** _**Pankaj Kumar**_ **(supra) also sought for quashing the charge-sheet and the consequential proceedings on grounds** _**interalia**_ **of delay. The Court spoke on the exercise of the jurisdiction under Article 227 and Sec.482 and held: '** _**The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the**_ **- 33 -** **Crl.A.No.461/2015 & connected cases** _**court is convinced, based on material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed” (sic).**_ **It is in this context that the court declared that** _**'inordinate delay may be taken as presumptive proof of prejudice”(sic).**_ **Here, though there was an inordinate delay, the trial is now completed and certain accused convicted and the others acquitted. The Prosecutor also explains that the issue was sensitive since there was the allegation of communal unrest; different Officers carried out the investigation and the collection of evidence was cumbersome. Be that as it may, we cannot resort to the extraordinary inherent powers, to set aside a judgment rendered after a full-fledged trial and the precedents do not enable such recourse.** **26. Having reposed full trust in the testimony of** **PW18 as to how her husband was called out and hacked immediately thereafter; we have to also reasonably presume that the attack would have been perpetrated by the four persons who accompanied the deceased from his house. PW18 had seen her husband walking in front with a torch and the four nocturnal visitors following him. She had just turned around to relieve herself when she heard cries of her husband. She** **Crl.A.No.461/2015 & - 34 - connected cases** **ran in the direction the party of five moved and found her husband grievously injured. Her husband told her that the four persons who accompanied him attacked him. The wife heard two motorbikes moving away and she summoned the other witnesses, the neighbours, who saw the victim alive. The victim told them also that the four people who came from Palghat cheated him and hacked him. Even if we disbelieve PW22, since he had not spoken of such a dying declaration before the police; that made to the other witnesses – PW17 and PW19 - corroborates each other and PW18. We do not find any inconsistency in the FIS made by PW18 at 7'0 Clock. PW18 swooned in the car and was taken to the family house of the deceased. She regained consciousness and gave the FIS; which cannot be found to be improbable merely for the fact that she admitted to have lost consciousness.** _**Banka Nayako & Ors. v. State of Orissa**_ **[** _**(1976) 3 SCC 401**_ **] was a case where the medical evidence was that anyone who sustains the injury noted in that case could not have regained consciousness; which is absent here. The four persons who woke the deceased from his slumber and took him out, on the pretext of a desire to go for hunting, attacked and grievously injured him, resulting in his death. The testimony of PW18, the dying declaration made by the victim to PW17 to PW19 establish the** **Crl.A.No.461/2015 & connected cases** **- 35 -** **murder having been committed by the four persons. We do not think that the declaration made by the deceased to PW17 to PW19 can be disbelieved only on the ground that PW18 had not spoken of it in the FIS. In fact, PW18 in Exhibit P6 FIS specifically spoke of the dying declaration made by the deceased to herself, that the four persons hacked him and fled. There is no reason why she should repeat a similar declaration made by her husband to the other witnesses who subsequently gathered there.** **27.** _**Balaka Singh**_ **(supra) is a case in which there was a false implication of some accused which was held to cast doubt on the complicity of others too. In** _**Suraj Mal**_ **(supra) it was held that when the testimony of witnesses was inseparable and indivisible and disbelieved in respect of some of the accused, it cannot be used to convict the others.** _**Noushad**_ **(supra) was a case in which only six out of the total forty-four accused were convicted. It was found that, when the court concludes that some witnesses were unreliable and unbelievable, it cannot then turn around and seek corroboration from the testimony of the very same witnesses. The non-application of the maxim '** _**falsus in uno falsus in omnibus'**_ **cannot be taken recourse, to split up the evidence of a witness who is found undependable and unreliable, to** **Crl.A.No.461/2015 & connected cases** ## **- 36 -** **grant benefit to only some of the accused, when everyone stands in the same footing and deserves parity as held in** _**Ram Laxman.**_ **We do not think the evidence led by the prosecution witnesses are in any manner improbable, unreliable or undependable. They are persons who would naturally be present in the location and have spoken of only things which they would have witnessed and heard. As to the other accused being acquitted, none of the witnesses spoke of their role in the crime proper. They were all witnesses arrayed to speak on the larger conspiracy, which the witnesses did not ascribe to. The accused, those convicted and those acquitted, cannot be treated as persons standing on the same footing nor can they be treated with parity. The crime proper, even according to the prosecution, was committed by A1 to A4. Now we come to the vexing question of the identification of the four persons who took the life of the deceased.** **28. PW18 identified all the four persons in Court and A1 was identified by PW25 as one of the persons he saw twenty days back. We can eschew the identification of PW25, since he has not identified the other three accused. His only relevant evidence is to the effect that four persons came and enquired about Moni, twenty days earlier. This corroborates the testimony of PW18, on four persons having visited them** ## **Crl.A.No.461/2015 & connected cases** ## **- 37 -** **twenty days back. PW18 saw them in daylight when they first came to her house in search of Moni and also when they returned after seeing the property of her husband. She again saw them in the wee hours of 14.08.1996 when they came to the residence of PW18 again in search of Moni, her husband. Though in the light of a lantern, she would definitely have ensured the identity of the nocturnal visitors, who was taking her husband out at an unholy hour. She also speaks of her husband having reassured her that the late night visitors are those who came just some days back. We reiterate, her testimony of having seen the four persons in the light of the lantern to be credible and believable.** **29. Now comes the issue of TIP which, as is trite, belongs to the investigation stage and serve to assure the investigating agency that they are on the right path. The first contention is regarding the Magistrate (PW59) who carried out the TIP, having not spoken of the identification proper and having merely marked the reports at Ext.P41 and P41(a). A Division Bench of this Court has already held (authored by K.Vinod Chandran,J.) in** _**Jaseer M.K. & Ors. v. State of Kerala (Manu/KE/1044/2021**_ **) relying on** _**Asharfi & Another v. State**_ **[** _**AIR 1961 All. 153 = 1961 Cri.LJ 350**_ **] and followed the dictum '** _**if the person holding the identification**_ **Crl.A.No.461/2015 & - 38 - connected cases** _**is a Magistrate of the First Class, or one of the Second Class specifically empowered, Section 164 Cr.P.C. applies and his identification memo is admissible in evidence under Section 80 of the Evidence Act without proof**_ **' (sic) (para 21). It was also held so in paragraphs 13 and 14 of** _**Jaseer M.K.**_ **regarding the amendment made to the Cr.P.C.** **“13. While incorporating Section 291A in the Code, the words 'Executive Magistrate' would have been employed keeping in mind the precedents which assign a corroborative value to TIP carried out by a Judicial Magistrate. The TIP conducted by a Judicial Magistrate makes applicable, Section 164 of the Cr.P.C and the '** _**identification memo is admissible under Section 80 of the Evidence Act without proof for what it is worth**_ **' (sic-para 8 of** _**Mohanan Nair v. State of Kerala**_ **[** _**1989 Cri.LJ.2106**_ **]. We bow to the above proposition as declared by a Division Bench of this Court.** **14. Viewed in the above context, the amendments made and the intention it sub-serves, is to give a TIP held by an 'Executive Magistrate' the same sanctity given to a TIP held by a 'Judicial Magistrate'. The legal effect of a TIP held by a Judicial Magistrate was always that; by virtue of Sections 80 of the Evidence Act. Now by introduction of Section 291A, the same effect is given to TIP carried out by 'Executive Magistrates'. We hence reject the contention raised by the Senior Counsel and find the report of the TIP made in the case to be acceptable in evidence even without proof. If the report of a TIP carried out by an 'Executive Magistrate' can be used as evidence, definitely that of a 'Judicial Magistrate' can also be used as evidence without calling the Magistrate as a witness in any inquiry, trial or other proceeding under the Code. It is the evidentiary value conferred by the Evidence Act, on a TIP carried out by a Judicial Magistrate that is sought to be extended statutorily, to a TIP by an 'Executive Magistrate', in Section 291A”.** **Crl.A.No.461/2015 & connected cases** **- 39 -** **30. The next contention is regarding the delay in holding the TIP, which was on 01.11.1996 when the accused were arrested on 06.09.1996. The investigating agency is not obliged to carry out a TIP nor can the accused claim it as a right. If a TIP is held, it corroborates the testimony of the witness in Court and it is only a rule of prudence.** _**Budhsen**_ **(supra) declared that TIP does not constitute substantive evidence, which can only be an identification in Court. As far as delay is concerned, two factors found to be having importance in the evaluation of identification is that (i) the persons required to identify an accused, should not have had any opportunity to see him after the commission of the crime and before identification and then, (ii) no mistakes are made in the identification. One argument is that A1 was first arrested and then on the same day A2 was arrested from the place pointed out by A1 and together they were taken for the arrest of A3 also. Learned Senior Counsel contended that the witnesses could have seen the accused at the time of arrest; very far-fetched according to us. The delay was also specifically pointed out, for the reason that there were many remand orders made in between the arrest and TIP, when again possibly the witness could have seen the accused. We cannot but say that the contention remains in the realm of a mere** **Crl.A.No.461/2015 & - 40 - connected cases** **surmise. The defence question that PW18 had seen the accused in Court, or their photographs or from the mobile was assertively denied by her, whose identification, among the other witnesses in the TIP, alone is relevant for our purpose. She also denied anybody having pointed out the accused in the veranda of the court or the prison.** **31. We also see from Exhibit P41(a) that after the arrest on 06.09.1996, the police immediately made an application for TIP, on which an order was passed by the CJM, Palghat numbered as 2257/96/D. dated 10.09.1996, within four days. It was the Magistrate who delayed the TIP and issued summons on 15.10.1996. The Courts have emphasised the need to have a TIP immediately after the arrest, but there is no hard and fast rule as to the period in which the TIP has to be conducted.** _**Bharat Singh v. State of UP**_ **[** _**(1973) 3 SCC 896**_ **] is relevant and we extract from the following:** **“6** . ... **Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the Police Officer who conducted the investigation should have been cross-examined in that behalf”.** **- 41 -** **Crl.A.No.461/2015 & connected cases** **We have no reason to assume that PW18 had seen the accused before the TIP. There was no attempt by the Police to delay the TIP and we cannot presume any ulterior motive on the Magistrate. There was no cross-examination of the investigating officer too, obviously for the reason of the Police having not delayed the TIP.** **32. There are also serious allegations raised concerning how TIP was conducted. We see from Ext.P41(a) that about 16 non-suspects were selected by the Magistrate who approximately resembled the accused in nature, complexion and built. None of them were wearing any conspicuous garments and their attire was shirts and ordinary pants or dhoti. The witnesses were kept in a separate room. The accused were directed to stand along with the non-suspects and PW18 was brought to the Court hall where the TIP was conducted. The witness stated that she had no previous acquaintance with the non-suspects. She walked along the row and correctly identified A1 to A3. The row was reshuffled before the second identification was conducted, which was also accurate in so far as PW18 is concerned. We do not refer to the other five witnesses whose evidence we do not reckon as relevant. The objection made by the accused was to the effect that the witnesses regularly saw them at Court and when they were** **- 42 -** **Crl.A.No.461/2015 & connected cases** **taken to the scene of occurrence. But PW18 has categorically denied it before the Magistrate as recorded by her and also before Court at the time of the trial. One other contention was regarding the presence of Selvan among the non-suspects, who is said to be PW20, who was accused of being omnipresent and an interested witness, by the learned Senior Counsel, for the reason of his affiliation to a political party, to which the deceased too belonged. We are unable to countenance the said argument firstly for the reason that there was no question put to PW20 as to whether he was one among the non-suspects in the TIP. Moreover he was also not asked whether he knew the accused suspects. Ext.P41(b), the list of non-suspects, shows the age and address of the 16[th] non-suspect to be identical to that of PW20. PW20 has a common name and we have already seen that in the tribal colony there is more than one person with the same name for eg: we came across two Vellayyan and three Kannan in PW18's testimony. We cannot assume that PW20 is the 16[th] witness merely on a contention raised in the appeal. Secondly, even if PW20 was among the non-suspects, the other 15 non-suspects were not acquainted with the witness. The appellants also contended that PW59 has stated in cross-examination that it was her Peon who called the non-suspects from the Court** **Crl.A.No.461/2015 & connected cases** **- 43 -** **compound. Definitely, we cannot expect the Magistrate to go and search for non-suspects. She would have asked the Peon to call persons, randomly from the Court complex and would have selected persons of the same nature and appearance as the accused, from among those randomly summoned, as is clearly stated in Ext.P41(a). We find no reason to doubt the TIP of A1 to A3.** **33. As far as A4 is concerned, the TIP was conducted by PW60. A4 surrendered before Court and Ext.P42 is the report of TIP, which was carried out in the Jail on 03.01.1998. There also, the Magistrate has clearly stated that the non-suspects were selected with particular care and caution to see that they resemble the suspects in nature, complexion and physique. The Magistrate selected non-suspects from the remand prisoners. PW18 identified the suspect at the first time itself. Then the witness was sent out and the nonsuspects were asked to change their position. This time also the witness identified A4. We are of the opinion that the TIP fully corroborates the identification made by PW18 in Court. In** _**Haseeb (supra),**_ **there was an identification parade conducted, when several accused persons were included, but the appellant-accused was not included on the premise that the witness was in the hospital. However, before Court, the** ## **Crl.A.No.461/2015 & - 44 - connected cases** **witness stated that he was discharged before the first identification was conducted. There were also many more identification parades conducted, which gave rise to suspicion about the conduct of the investigating agency. In** _**Laxmipat Choraria vs. State of Maharashtra AIR 1968 SC 938.**_ **the photographs of the accused were shown without mixing them up with others.** _**Ravindra alias Ravi Bansi Gohar**_ **(supra) held the TIP inside the lock-up and the dictum was that TIP is to be held at a place where no criticism against its legitimacy can be raised, preferably in the Jail. Here the TIP of A1 to A3 was in the Court hall and that of A4 in the prison.** _**Ravi @ Ravichandran**_ **(supra) disclosed no reference to the accused in the FIR and TIP was held after 10 days after the photograph of the accused appearing in the newspapers, after his arrest.** _**Md. Sajjad @ Raju @ Salim**_ **(supra) held that identification simpliciter cannot form the fulcrum of the entire prosecution case. None of these decisions are applicable in the instant case.** **34. PW18 had spoken of all the four persons who visited their house on the crucial night, having worn raincoats of cement colour. Recoveries were made of the raincoats from the house of A1 to A4. As far as the recovery concerning A1, PW5, the brother and PW6, the neighbour of A1;** **Crl.A.No.461/2015 & - 45 - connected cases** **the witnesses of the mahazar turned hostile. PW5 & PW6 admitted their signature on the search list. PW6 also stated that normally he reads a document before signing it, but he was forced to sign the mahazar by the Police. PW48, another witness to Ext.P1, however, supported the prosecution case and deposed in accordance with the contents of Ext.P1 search list and identified the objects. From the house of A2, not only his dress and raincoat but also some weapons were found. PW27, PW28 and PW29, respectively his mother, who signed on the search list and two neighbours, who witnessed the recovery/seizure, turned hostile. PW27 admitted the arrest of A2 from her house but denied the seizure and the signature on Ext.P9. PW28 denied his signature in Ext.P9 but admitted that his address shown therein is correct. PW28 also admitted that he saw the police at the house of A2. PW29 admitted the presence of Police and his signature on Ext. P9, but denied the seizure. There were weapons recovered from A2's house one of which had traces of blood and one of the raincoats recovered from A2's house was blue in colour. But pertinently, the weapons were covered with another raincoat which was cement in colour. Likewise, the recovery relating to A3 was signed by PW30, his sister-in-law and witnessed by PW31, a neighbour, both of whom turned hostile. PW30** **Crl.A.No.461/2015 & connected cases** **- 46 -** **vacillated, in admitting and denying her signature. She also admitted that PW31 was a neighbour. PW31 first denied his signature but later admitted it repeatedly and turned hostile as to the seizure. PW32, a neighbour of A4, witnessed the seizure by Ext.P10 as against him. Though he admitted his signature in Ext.P10, he turned hostile regarding the contents. PW33, another neighbour of A4 and a witness to Ext P10, also admitted his signature and denied the contents.** **35. Here we rely on** _**Benny.P. Jacob vs. Rajesh Kumar Unnithan 2019 KHC 737 specifically para 25:**_ _**25. Recovery of MO1 knife at the instance of the accused also is a factor which was rejected by the Court below. PW8 and PW9 are the witnesses to Ext.P23 mahazar. Both of them turned hostile to the prosecution. But they admit that they have put their signatures in Ext.P23. Apparently, they have signed the document knowing fully well that it is a seizure mahazar. Merely for the reason that they have turned hostile does not indicate that the recovery is bad in law. The investigating officer had clearly stated that MO1 knife was recovered based on the confession statement of the accused. Taking into account all these facts, we are of the view that the Court below committed serious error in appreciating the evidence available in the case.**_ **As we have noticed in the just prior paragraph, almost all the witnesses to the seizure admitted their signature. Those who denied the contents of the search list were either close relatives or neighbours. We have also gone through the evidence of the Investigating Officer, which we find no** **Crl.A.No.461/2015 & connected cases** **- 47 -** **reason to doubt. Following the above-extracted dictum we find the recoveries or the seizures made from the admitted residence of the respective accused/appellants, A1 to A3 at the time of arrest and A4, in his absence, to be an inculpatory circumstance.** **36. In appreciation of the evidence, it is not the number but the credibility of the witness that matters. There is no eye witness to the murder and the entire evidence is on circumstances which forms the basis of the prosecution case. We keep in mind the caution expressed by the Hon'ble Supreme Court in several decisions and reiterated in** _**Ashish Batham**_ **(supra). We first list out the circumstances projected by the prosecution, which have not been established. The motorcycles used by the assailants have not been proved to be those seized. There is no evidence regarding the identification of the vehicles. The evidence of PW7, that A1 purchased petrol from him does not indicate the date on which the purchase was made. The prosecution has alleged the motive insofar as the murder of one Shamsudheen which has not been connected to the deceased. PW20, a BJP worker though was accused of the murder, is said to have been acquitted. The witnesses also speak of the marriage of one of the persons living in the colony with a Muslim and his forceful** ## **Crl.A.No.461/2015 & - 48 - connected cases** **conversion. However, PW52, the mother of the person who was converted, deposed that the fact of conversion was brought to the notice of the deceased on the just previous day and the deceased is not stated to have taken any action against the same. It is PW52's testimony that the deceased told her that after he comes back from Thirumoorthimala, he will go and collect her son. The prosecution has not established the motive nor have they established the allegation of an attempt to create disharmony between religious communities. Though many witnesses were examined by the prosecution to establish the fundamentalist attitudes of the accused, all of them, PW14, PW15, PW41, PW42 and PWs.49 to PW51 turned hostile. In the charge, it is stated that the four persons introduced themselves as Hindus, but there is no evidence to that effect. The conspiracy is also not established. We do not find any house-trespass as alleged by the prosecution. However the four accused called the deceased in the pretext of taking them on a hunt in the forest. Though they cannot be said to have committed any house trespass; there was deceitful inducement on a false pretext consequent to which the person was murdered. The deceased, though went willingly with the four persons was hacked to death immediately thereafter. In the above circumstances, we find no reason to** **- 49 -** **Crl.A.No.461/2015 & connected cases** **convict the accused under Sec.120B (criminal conspiracy) Sec.447 (criminal trespass) and Sec.153A (promoting enmity between different groups on grounds of religion).** **37. We are left with the allegation of Sec.302, Sec.364 (abduction in order to murder) read with Sec.34. The circumstances which point to the guilt of the accused are the following: A1 to A4 was identified by PW18 as the persons who came to their residence twenty days prior to the incident on the pretext of looking over the agricultural land of her husband. She had seen them in daylight twice, on the same day, and then, they were seen by her when at night they called her husband from his slumber. Considering the unholy hour at which the four had approached the house of the deceased, it is only natural that the wife stepped out of the house along with the husband. She saw the four persons, clearly in the lantern light and identified them as the persons who came to see the forest (the agricultural land) twenty days back. Her husband showed them around the forest twenty days back. He was with them throughout the time they spent in the forest. He told his wife in the night that there was nothing to fear, on identifying them as the persons who came to them earlier. The husband also told her that at the earlier instance they had expressed a desire to go hunting.** **Crl.A.No.461/2015 & - 50 - connected cases** **The husband had gone out with A1 to A4 and immediately thereafter, the wife heard his cries and ran to his help. The husband, was then found by the wife, lying grievously injured and the four persons who accompanied him were nowhere seen. The identification of A1 to A4 being credible, they must explain the injuries on their companion, the deceased, and also their flight. The time gap within which PW18, the wife, saw her husband going with A1 to A4 and then finding her husband grievously injured is so proximate that the last seen theory squarely applies in the above case.** **38. The four persons who enticed the deceased out of his house at night and then disappeared leaving the deceased grievously injured were responsible for the attack and the resultant death, which constitutes murder. The four persons together had committed the heinous act and fled, which ropes them in under Section 34 of the IPC also. The version of the wife is corroborated by PW17, PW19 to PW22 who saw the deceased immediately after his wife found him. The victim also told these witnesses that the four persons who came from Palghat had cheated him and hacked him. The medical evidence corroborates the version of the prosecution witnesses and so does the seizure made at the time of arrest of A1 to A3, which tallies with the evidence of PW18 concerning the attire** ## **Crl.A.No.461/2015 & connected cases** **- 51 -** **of the accused on the fateful day. The seizure of the dress of A4, in his absence also, corroborates PW18. The inconsistency concerning one of the raincoats recovered from A2's residence being blue in colour is irrelevant since the rain coat in which the weapons were covered was cement in colour. There were also bloodstains detected in MO21 sword recovered from A2's residence.** **39. Motive though an important circumstance is not imperative, if the other circumstances unerringly provide proof of guilt. True, there is no eye witness in this case, but the direct evidence of PW18 is so proximate to the murder that, it extinguishes the need to search for a motive and be convinced of the same to find the guilt of the accused [** _**State of Uttar Pradesh v. Kishan Pal and others [2008) 16 SCC 73]**_ **. Motive as has been oft-stated is something in the inner recesses of the mind of the accused, which often the prosecution may be unaware of and difficult to establish. It was held in** _**Kishan Pal**_ **(supra) that '…** _**the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime' (sic-para 38).**_ **We find that the circumstances prove beyond reasonable doubt that the accused 1 to 4 abducted and** **Crl.A.No.461/2015 & - 52 - connected cases** **murdered the deceased. There is no hypothesis of innocence vexing us and there arises no grain of doubt in finding the accused guilty and convicting them under Sec.302 & Sec.364 read with Sec.34 IPC. We uphold the conviction of the trial Court to that extent and set aside the conviction under the other provisions. We maintain the sentence imposed by the trial Court under the above provisions, to be run concurrently.** **The appeals stand partly allowed.** **Sd/K. Vinod Chandran Judge Sd/Ziyad Rahman A.A. Judge** **vku/jma/sp.**