Rony Thomas vs State Of Kerala

P.B.Suresh Kumar, J.

Accused Nos.1, 3 and 8 in S.C.No.885 of 2006 on the files of the Additional District and Sessions Court, Vadakara are the appellants in these appeals, challenging their conviction and sentence in the said case. Among the appeals, Crl.Appeal No.1279 of 2013 is instituted by the first accused, Crl.Appeal No.1016 of 2014 is instituted by the third accused and Crl.Appeal No.1647 of 2013 is instituted by the eighth accused.

One Abdul Karim died in an occurrence which took place by about 10.30 p.m. on 11.02.2006. The case of the prosecution is that the deceased and the seventh accused were business partners on inimical terms; that on account of the enmity towards the deceased, the seventh accused hatched a conspiracy with the sixth accused to cause the death of Abdul Karim; that in furtherance to the said conspiracy, the sixth accused hired the services of accused Nos.1 to 3, 8 and two others namely, Subhash and Sachin to cause the death of Abdul Karim and that the aforesaid accused, as instructed by accused Nos.6 and 7, chased Abdul Karim who was going to Kozhikode from Kalpetta on the fateful day in his Qualis motor car bearing Reg.No.KL-11/S-3468 driven by one Sivan, in a TATA Sumo motor car bearing Reg.No.KL-07/A-2467 with weapons like iron rods, wooden sticks etc., intercepted the motor car in which the deceased was travelling near the ninth hairpin curve in the Adivaram-Vaithiri Ghat road, broke the glass of the back left door of the car on the side the deceased was sitting, forcibly entered inside the aforesaid motor car, took control of the same by pushing Sivan, the driver away from his seat, took the car back towards Wayanad and assaulted the deceased and the driver severely inside the car with the weapons carried by them. It is also the case of the prosecution that after sometime, they stopped the car, dragged Abdul Karim out of the car and beat him with the weapons carried by them and also kicked him on his body. It is the further case of the prosecution that thereupon, they brought back the deceased to the car, drove the car for some more time and pushed the deceased as also the driver out of the car and later abandoned the car. It is the further case of the prosecution that the driver of the car in which the deceased was travelling, somehow managed to reach the nearby junction after sometime and went to the Medical College Hospital, Kozhikode with the aid and assistance of a few others and in the meanwhile, Abdul Karim succumbed to the injuries.

A case was registered in connection with the occurrence on 12.02.2006 by Thamarassery police on the basis of the information furnished by the driver of the car. The investigation of the case was initially conducted by the local police and later by crime branch and the final report was laid after the investigation under Sections 143, 147, 148, 341, 363, 307 and 302 read with Sections 149 and 120B of the Indian Penal Code.

At the time of submitting the final report, all the accused could not be arrested. Consequently, the case against accused Nos.1, 2, 3, 7, 8, 9 , 11 and 6 in the final report was split up and committed for trial by two separate committal orders. The ranks of the said accused were thereupon altered by the trial court for further proceedings as accused Nos.1 to 8 respectively.

On the accused pleading not guilty of the charges framed against them, the prosecution examined 127 witnesses as PW1 to PW127 and proved through them as many as 217 documents as Exts.P1 to P217. Mos.1 to 89 are the material objects caused to be identified through the prosecution witnesses. Exts.D1 and D2 are the case diary statements of Pws.8 and 89 respectively and Exts.D3 to D5 are the case diary statements of PW102.

Among the witnesses examined on the side of the prosecution, PW1 is the driver of the vehicle in which the deceased was travelling, PW10 is the witness claimed to have stated before the police that he rented out the TATA Sumo motor car alleged to have been used by the assailants for reaching the scene of occurrence, PW48 is the witness claimed to have stated before the police that the fourth accused had handed over a cover on the previous day of the occurrence to the sixth accused who was sitting in a TATA Sumo car, PW51 is the father of PW10, from whom the TATA Sumo motor car was seized, PW72 is the Judicial Magistrate who conducted the Test Identification Parade (TIP) in respect of accused Nos. 1, 2, 3 and 8, PW90 is the witness examined by the prosecution to prove the recovery of MO69, bit papers with the writing TN-43-5358 stated to be based on a statement given by the first accused, PW120 is the Sub Inspector of Police, who has recorded the First Information Statement, PW121 is the Police officer who has investigated the case initially and PW126 is the Police Officer who has investigated the case later and submitted the final report.

Among the documents proved, Ext.P1 is the First Information Statement, Ext.P58 is the seizure mahazar in respect of MO1(b) iron rod claimed to have been recovered from the eighth accused, Ext.P69 is the TIP report in respect of the first accused, Ext.P70 is the TIP report in respect of accused Nos.2 and 3, Ext.P71 is the TIP report in respect of accused No.8, Ext.P85 is the seizure mahazar in respect of MO2 wooden stick claimed to have been recovered from the third accused and Ext.P91 is the seizure mahazar in respect of MO69 papers.

After the prosecution tendered its evidence, the accused were questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution against them. The accused denied the same and maintained that they are innocent. Since the trial court did not find that the case is one fit for acquittal under Section 232 of the Code, the accused were called upon to enter upon their defence.

Thereupon, the accused examined three witnesses on their side as DW1 to DW3. Exts.D6 to D15 are the documents proved by the accused through the said witnesses.

In the course of the trial, accused No.2 absconded and accused No.7 passed away.

On an appraisal of the materials on record, the trial court found accused Nos. 1, 3 and 8 guilty of the offences punishable under Sections 143, 147, 148, 341, 302 and 307 read with Section 149 of the IPC and they were accordingly convicted and sentenced for the aforesaid offences. They were however found not guilty of the offences punishable under Sections 395, 364 and 120B of IPC. The remaining accused who have faced trial were acquitted. As indicated, the appeals are instituted by accused Nos.1, 3 and 8 aggrieved by their conviction and sentence.

It is seen that even though the sentence imposed on the appellants were not suspended initially, this court had suspended their sentence at a later point of time and enlarged them on bail.

Heard the learned counsel for accused Nos.1, 3 and 8 as also the learned Public Prosecutor.

As we propose to deal with the arguments advanced by the learned counsel for the appellants elaborately at a later stage of this judgment, it is unnecessary to mention the same at this stage. At the same time, it is necessary to refer to the arguments advanced by the learned Public Prosecutor to support the conviction and sentence of accused Nos.1, 3 and 8.

The learned Public Prosecutor relied mainly on the evidence of Pws.1 and 10 and the recovery of MO1(b) iron pipe and MO2 wooden stick based on the statements given by accused Nos. 3 and 8 to support the conviction of the aforesaid accused. It was argued by the learned Public Prosecutor that the first accused being the person who removed the car which intercepted the car driven by PW1 and accused Nos.3 and 8 being the persons who barged into the said car, the trial court cannot be found fault with for having relied on the evidence of PW1 to hold that the prosecution established the presence of the said accused at the scene of occurrence. It is all the more so, according to the learned Public Prosecutor, since PW1 clarified that he could see the aforesaid accused in the background of the headlight and cabin light of his car. In order to attribute credence to the evidence tendered by PW1, the learned Public Prosecutor has also pointed out that he is a person who has suffered injuries in the occurrence. It was also argued by the learned Public Prosecutor that inasmuch as accused Nos.1, 3 and 8 do not dispute the occurrence involving five assailants, it was unnecessary for the prosecution to prove the overt acts committed by each of the accused and it was sufficient for the prosecution to establish the presence of the said accused at the scene when the occurrence took place, to sustain their conviction.

The materials on record indicate that TIPs were conducted on three occasions to enable the witnesses, including PW1 to identify accused Nos.1, 2, 3 and 8. The trial court, on an elaborate consideration of the various facts and circumstances of the case, did not place reliance on the identification of accused Nos.1, 3 and 8 by PW1 in the TIPs for various reasons. Even though the learned Public Prosecutor is entitled to place reliance on the identification of accused Nos.1, 3 and 8 by PW1 in the TIPs to sustain the conviction of the said accused notwithstanding the fact that the trial court did not place reliance on the same, the learned Public Prosecutor has not chosen to do so for reasons best known to him.

Be that as it may, in the light of the arguments advanced by the learned counsel for the parties on either side, the points that arise for consideration are (1) whether the prosecution has established the guilt of accused Nos.1, 3 and 8 under Sections 143, 147, 148, 341, 302 and 307 read with section 149 of IPC and (2) if not, the relief, if any, which the aforesaid accused are entitled to.

Accused Nos.1, 3 and 8 have not challenged the case of the prosecution that the deceased and PW1 sustained injuries in the occurrence that took place on 11.02.2006 and that the injuries inflicted on Abdul Karim by the assailants was the cause of his death. There was also no challenge to the fact that it is a case of murder. Similarly, accused Nos.1, 3 and 8 have also not challenged the case of the prosecution that five persons, who came to the place of occurrence in a motor car and intercepted the car driven by PW1, have attacked them. Their defence, however, was only that they were not amongst the assailants and that they were falsely implicated in the case at the instance of the relatives of the deceased. Even before this Court, arguments have been advanced by the learned counsel appearing for the said accused only to establish that the evidence tendered by the prosecution to prove the involvement of accused Nos.1, 3 and 8 in the occurrence are not satisfactory and their conviction therefore is unsustainable in law. The question to be examined now is whether the prosecution has established beyond reasonable doubt the involvement of accused Nos.1, 3 and 8 in the occurrence that took place on 11.02.2006 as alleged by the prosecution.

Even though the learned Public Prosecutor did not place any reliance on the TIPs conducted on the accused Nos.1, 3 and 8 by PW1, we have examined the materials on record to see whether reliance could be placed on the identification of the said accused persons in the TIPs. Before delving into that aspect, it is apposite in this context to refer to a recent judgment of the Apex Court in Gireesan Nair v. State of Kerala, (2023) 1 SCC 180 dealing with the TIP. Paragraphs 29 to 32 of the said judgment read thus:

“29. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant (Matru v. State of U.P. [Matru v. State of U.P., (1971) 2 SCC 75, para 17 : 1971 SCC (Cri) 391] ; Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3 SCC 508, paras 41 & 43 : (2010) 2 SCC (Cri) 1150] and C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567, para 42 : (2010) 3 SCC (Cri) 1402] ). The evidence of a TIP is admissible under Section 9 of the Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained (State of H.P. v. Lekh Raj [State of H.P. v. Lekh Raj, (2000) 1 SCC 247, para 3 : 2000 SCC (Cri) 147] and C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567, para 42 : (2010) 3 SCC (Cri) 1402] ).

It  is  a  matter  of  great  importance  both  for  the investigating agency and for the accused and a fortiori for the proper administration of justice that a TIP is held without avoidable and unreasonable delay after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses before the test identification parade. This is a very common plea of the accused, and therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. But reasons should be given as to why there was a delay (Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3 SCC 508, para 45 : (2010) 2 SCC (Cri) 1150] and Suresh Chandra Bahri v. State of Bihar [Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80 : 1995 SCC(Cri) 60] ).

In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P. [Lal Singh v. State of U.P., (2003) 12 SCC 554 : 2004 SCC (Cri) Supp 489] and Suryamoorthi v. Govindaswamy [Suryamoorthi v. Govindaswamy, (1989) 3 SCC 24 : 1989 SCC (Cri) 472] ).

If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra [Sk. Umar Ahmed Shaikh v. State of Maharashtra, (1998) 5 SCC 103 : 1998 SCC (Cri) 1276] ). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh [Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 : (2021) 1 SCC (Cri) 9] and Ramkishan Mithanlal Sharma v. State of Bombay [Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903 : AIR 1955 SC 104] ).”

As indicated in the extracted judgment, the evidence of a TIP though admissible under Section 9 of the Indian Evidence Act, it not being a substantive piece of evidence, the same can be used only to corroborate the evidence tendered by the witnesses at the time of trial. The first and foremost safeguard to be ensured for placing reliance on a TIP is that it has been conducted without avoidable and unreasonable delay after the arrest of the accused. Similarly, before placing reliance on a TIP, it is the duty of the court to ensure that right from the date of the arrest, the faces of accused are masked, so as to rule out the possibility of their faces being seen while in police custody by the witnesses, for if the witnesses had the opportunity to see the accused prior to the TIP, be it in any form, i.e. physically, through photographs or via other media such as newspapers, television etc., the TIP would become meaningless. Needless to say, if the TIP takes place after the witnesses get an opportunity to see the accused when they are being taken out by the Police while in custody for the purpose of investigation or if they are shown the photographs of the accused, no reliance can be placed on their identification in the TIP, and the same would also cast serious doubts even on the identification of the accused by the witnesses in court. Keeping in mind the aforesaid principles, let us consider whether any reliance could be placed on the evidence tendered by the prosecution on the identification of accused Nos.1, 3 and 8 in the TIPs.

The first accused was arrested on 05.04.2006. The third accused was arrested on 07.04.2006 and the eighth accused was arrested on 23.06.2007. The TIP in the case of the first accused was conducted only on 26.04.2006. Likewise, the TIP of the third accused was conducted on 12.05.2006 and that of the eighth accused was conducted on 29.06.2007. As indicated, the TIP of the first accused was conducted almost three weeks after his arrest. Similarly, the TIP in respect of the third accused was conducted a month after his arrest. Of course, in the case of eighth accused, it was conducted on the seventh day of his arrest. True, the question whether TIP has been conducted without avoidable and unreasonable delay after the arrest of the accused is a question to be decided on the facts of each case. In the case on hand, it was admitted by PW126, the investigating officer, in his cross examination that after the arrest of the accused and before the TIPs, the accused have been taken to several places for the purpose of effecting the recoveries. PW90 has categorically stated in his evidence that the face of the first accused was not covered/masked at the time of effecting the recovery of MO69 papers. Ext.P91 is dated 06.04.2006. It is much thereafter, on 26.04.2006 that the TIP was conducted in respect of the first accused. Similarly, PW48 has stated that the photographs of the accused were published in newspapers when they were arrested. PW126, the investigating officer also admitted the fact that the arrest of the third accused was published in newspapers with his photograph. That apart, PW126 also admitted in his cross examination that he had shown the photograph of the eighth accused while questioning PW1 on 30.06.2006. The arrest of the eighth accused was much later, in the year 2007. PW1 has also stated during his cross examination on behalf of the first accused that he was questioned in connection with this case by the Police on several occasions and that once he was summoned by the Police to show him the photographs of the suspects. Similarly, he also stated during his cross examination on behalf of the eight accused that he was shown by the investigating officer a few group photos, in which the eighth accused was there. Of course, PW1 has stated that it is not based on the said photographs that he identified the eighth accused in the TIP. Inasmuch as it has come out in evidence that the face of the first accused was not covered while he was being taken by the police to various places for investigation and recovery, according to us, it is not safe to place any reliance on the identification of the said accused by PW1 in the TIP. Similarly, inasmuch as it has come out in evidence that the photograph of the third accused was published in newspapers prior to the TIP and inasmuch as the photograph of the eighth accused was shown to PW1 before the arrest of the said accused, it is not safe to place any reliance on the identification of the eight accused also by PW1 in the agreement with the view taken sanctity could be attributed to Nos.1, 3 and 8 by PW1 in the purpose. TIP.  We  are,  therefore,  in by the court below that no the identification of accused TIPs conducted for the said

It is relevant in this context to mention that even though PW1 has identified accused Nos.3 and 8 during trial, he was not dare enough to pinpoint the first accused who was in the dock at the time of his evidence. Inasmuch as the identification of accused Nos.3 and 8 by PW1 in court was much after the occurrence and after he had the opportunity to gather the features of the said accused from various materials including their photographs published in newspapers and shown to them by the investigating officer, we do not think that any credence could be attributed to the identification of the said accused by PW1 in court.

Let us now consider whether there is any other reliable evidence to establish the presence of accused Nos.1, 3 and 8 at the scene when the occurrence took place. Before examining the said question, it is necessary to note that in all criminal cases, there will be discrepancies in the evidence of witnesses due to errors in observation, errors of memory due to lapse of time or due to mental disposition, such as shock and horror at the time of occurrence. It is settled that where there are material omissions in the previous statements of the witnesses or where witnesses make material improvements while deposing in Court, it is not safe to place reliance on their evidence. True, minor contradictions, inconsistencies, embellishments, improvements on trivial matters which do not affect the core of the prosecution case, shall not be a ground on which the evidence can be rejected in its entirety. Similarly, mere marginal variations in the statements of a witness cannot be taken as improvements, as the same may be elaborations of the statement earlier made by the witness. In other words, what is expected from the court in such cases is that, an opinion about the credibility of the witness must be formed and a finding as to whether his deposition inspires confidence, must be recorded [See A. Shankar v. State of Karnataka, (2011) 6 SCC 279].

As noted, the only eye witness to the occurrence is PW1. He is a person who sustained injuries also in the occurrence. The evidence of such witnesses can certainly be the basis of a conviction in appropriate cases, even if it is not corroborated by other pieces of evidence. Admittedly, PW1 did not have any prior acquaintance with the accused. The occurrence took place at about 10.30 p.m. in a ghat road where there was no street lights. The First Information Statement, Ext.P1, was given by PW1 about two hours after the occurrence. In the First Information Statement, what is stated by PW1 is only that, while he was driving the Qualis car in which the deceased was travelling through the ghat road on their way to Kozhikode from Kalpetta, near the ninth hairpin curve on that route, a new Mahindra Bolero Jeep overtook and intercepted their vehicle. It was his version in Ext.P1 that thereupon five persons came out of the said vehicle with iron rods, wooden sticks etc., broke open the glass in the door on his side of the car, barged into the vehicle through the front and back doors on the left and right side of the car and took control of the vehicle after pushing him away from the driver's seat. It was also stated by him in the First Information Statement that two among the assailants entered the vehicle through the front left door, one through the front right door and two through either side of the back doors. The relevant portion of Ext.P1 reads thus:

“ഞങളടട കക  9-)o വളവ  ത ര യന സമയ  പ ന ലണകയ രന പത യ Mahindra Bolero ജ പ  ഞങളടട കകറ ട  മറ കടന  ബ!കക ട    ത . അതകണ  ഞക  sudden break ചവട  വണ ത . ഞക  driving സ റ ല  കര  ക പ ന   ഇടതവശതള സ റ ലമകണ  ഇരന രനത . ബ!കക ട ജ പ ന  പകന  ഷ ട  ധര ച അഞ ബപ  കയ   ഇരമവട  മരത ട: വട  എന വയമകയ  ഇറങ വന  അത ട<കരക  ഇരമവട ടകകണ  ഞക  ഇരന രന സസഡ ട< ഗകസ  അട ച ടപകട ച  'പനപ<യകട  ബമകട  ' എന  വ ള ച പറഞ. അബപക  മടറകരക  വ<ത ഭകഗ  door വ< ച തറന  എട: വ<തവശ  കയറകയ  കകറ ട: സ യറ ങ  സകക<കകകയ  ടചയ ത. രണബപ  മ വശ  ഇടത ഭകഗടത door തറന  അകത കയറകയ  മറ രണബപ  പ ന ട< ഇരവശബതയ  ബഡകറക  തറന  കര  കയടട ഇരവശതമകയ  ഇരന.”

PW120 is the Police Officer who recorded Ext.P1 First Information statement. He has stated in his cross examination that PW1 was able to speak when the statement of PW1 was recorded. He has also stated in cross examination that he has correctly recorded the statements made to him by PW1 and that he has not omitted any of his statements in Ext.P1. As indicated, PW1 has not stated in Ext.P1 as to who drove the Mahindra Bolero car in which the assailants came to the scene and what happened to the said vehicle thereafter. But, as PW1, he deposed in court that after the car which he was driving was intercepted, one among the assailants who came out of the intercepted car instructed a sixth person who was sitting inside that car to remove the same from the scene and accordingly, a stout person came out of the said car and entered the driving seat of the intercepted car through the right side of the car driven by him and drove away the said car. It was also deposed by him that he could see the said person as the headlight of his vehicle was on, and he is the first accused in the case. The relevant portion of the said deposition reads thus:

“ആ സമയത  block ടചയ വണ  ഞങളടട വണ യടട മമ   തടനയണ . ഞങളടട വണ യടട മ  വശത  വന    ന 2 ബപര   ഉയര  കട യയക  മടറ വകഹ ത ബ<ക  ബ കക  'വണ  എടത  ബപകടക ' എന  പറഞ. ആ സമയത  ആ വകഹ ത ന  പ ന ലടട ഒര തട ച ടചറപകകര ഇറങ വന. അയക  എട: വകഹ ത ട: വ<ത വശതകട  അവരടട വകഹ ത ട: ഇടതവശതകട  ആ വകഹ ത ട: driver seat ബ<ക കയറ .  വകഹ   reverse എടത  ചരത ട: തകഴടത ഭകഗബതക  ഓട ച ബപകയ . വണ ബയകട ച ബപകയയകടള എട: വണ യടട head light ട: ടവള ചത ല  അവരടട വണ യടട head light ട: ടവള ചത ല  ഞക  വXകമകയ  കണ. അയകളകണ  1-)o പത . ”

The fact that such a case was not spoken to by PW1 in Ext.P1 statement is not in dispute. True, PW1 is not expected to state all the finer particulars of the various overt acts committed by the assailants in his FI statement, especially in a case of this nature where he also suffered injuries, and Ext.P1 statement has been given while he was admitted and being treated in the Medical College Hospital. But, the aforesaid omission in the First Information Statement that there was yet another person along with the five persons referred to in the First Information Statement and it is that person who drove away the car in which the assailants came to the scene, cannot be said to be a mere elaboration of what has already stated by him in the First Information Statement. On the other hand, it is a significant omission amounting to contradiction and the same cannot therefore, be ignored. Be that as it may, even if it is admitted that the said part of the evidence tendered by PW1 is true, as noted, his version as regards identification of the first accused is that he had seen the first accused while he was moving to the driver's seat of the car in which the assailants came to the scene as instructed by one of the assailants in the background of the headlight of the car which he was driving. Placed in a situation of this nature where, while five persons were attempting to attack the vehicle driven by him and taking control of the same with deadly weapons during dark hours in a remote ghat road, no one, under normal circumstances, would notice the person who was removing the vehicle in which the assailants came to the scene, for, in the common course of natural events and human conduct, the focus of a person placed in the position of PW1 would always be on those persons who are attempting to attack the vehicle and take control of it. We, therefore, find it very difficult to accept the evidence of PW1 that he could notice the features of the person who removed the car, so as to enable him to identify him at a later point of time. The said part of the evidence looks very artificial as well, inasmuch as it is stated by PW1 that the said person entered the car through the driver's seat, for otherwise, there would be no occasion for him to see that person. It is relevant to point out in this connection that even the court below did not accept the evidence tendered by PW1 as regards the presence of the first accused at the scene. It was categorically held that the case put forward by PW1 in this regard is suspicious. Nevertheless, the court below took the view that the evidence tendered by PW10, that he entrusted the TATA Sumo vehicle allegedly used by the assailants to come to the scene of occurrence, would probabilise the case of the prosecution that the first accused was also among the assailants.

Let us now consider whether the evidence tendered by PW10 would improve the case of the prosecution as regards the involvement of the first accused in the occurrence, in any manner. As noted, the specific case of PW1 in the First Information Statement is that the assailants have come to the scene in a Mahindra Bolero Jeep. Though the investigating officer has questioned PW1 on several occasions, he did not ever tell that the vehicle in which the assailants came to the scene is not the Mahindra Bolero Jeep, but a TATA Sumo car. When the investigating officer was asked about the above discrepancy, the clarification given by him was that in one of the subsequent statements, PW1 clarified that he stated so, as he was under the impression that the vehicle that was chasing the car driven by him was the Mahindra Bolero Jeep. Be that as it may, the only material the prosecution has to connect the first accused with the occurrence is the evidence of PW10. No doubt, PW10 has categorically stated in his evidence that he has rented out the TATA Sumo car bearing REG.No.KL-07-A-2467 to the first accused prior to the occurrence. PW126 has stated that there was no document evidencing renting of the TATA Sumo car by PW10 to the first accused. He also stated that there was also no document evidencing any payment made by the first accused to PW10 towards the rent of the TATA Sumo vehicle alleged to have been taken by him. Even assuming that PW10 has rented out the above referred TATA Sumo car to the first accused as claimed by him, there is absolutely no material to indicate that the assailants have come to the scene in the said vehicle and even if it is assumed that the assailants have come to the scene in the said vehicle, there is no satisfactory evidence to indicate that it was the first accused who brought the assailants to the scene. We take this view also for the reason that there is nothing on record to indicate that PW1 was ever shown the said Tata sumo car by the investigating officer to ensure that it is that car which was used by the assailants to come to the scene. The court below was proceeding on the premise that inasmuch as the said TATA Sumo car was stated to be in the custody of the first accused during the relevant period, no one else could bring the assailants to the scene in the said vehicle. We are unable to endorse the said assumption. Even assuming that the vehicle at the relevant time was one possessed by the first accused, the possibility of somebody else making use of the said vehicle without the knowledge of the first accused cannot also be ruled out. In other words, we are unable to agree with the view taken by the court below that evidence tendered by PW10 establishes the presence of the first accused at the scene when the occurrence took place. The upshot of the discussion aforesaid is that there is absolutely no material to establish satisfactorily, the presence of the first accused at the scene when the occurrence took place.

Let us now consider the question whether the prosecution has established beyond doubt the presence of accused Nos.3 and 8 at the time of occurrence. Before delving into this issue, it is necessary to mention that in a case where the witness who is a stranger to the accused and identifies the accused before the Court for the first time, the Court, ordinarily will not accept that identification as conclusive [See Bollavaram Pedda Narsi Reddy v. State of A.P., (1991) 3 SCC 434]. It is to lend assurance to the testimony of such witnesses that evidence in the form of TIP is tendered. If the accused persons are identified by the witnesses soon after their arrest in TIPs and such identification does not suffer from any infirmity, those circumstances would certainly lend to corroboration to the evidence given by the witness before the Court. Similarly when an occurrence takes place involving an accused with whom the witness has had no previous acquaintance, and the occurrence happens in the dark hours of the day, the identification of the accused assumes great importance. The prevailing light is a matter of crucial importance. The necessity to have the suspects identified by the witness right after their arrest also arises [See Bollavaram Pedda Narsi Reddy v. State of A.P., (1991) 3 SCC 434]. In the absence of cogent evidence that by reason of the visibility of light at the place of occurrence and the proximity to the assailants, the witnesses had a clear vision of the actions of each of the accused persons in their minds so as to enable them to recollect their features and identify them in spite of a long lapse of time, it would be hazardous to draw an inference that the persons arrayed as accused are the real assailants. In short, there must be sufficient opportunity for the witnesses to see the features of the assailants so as to enable them to give reliable evidence in Court as to their identity, without there being any satisfactory and acceptable identification of the accused by them immediately after the arrest of the accused.

Coming to the facts the present case, there is no whisper in Ext.P1 that there was some source of light at the scene so as to enable PW1 to identify the accused, even though he has stated that he could identify them. This omission cannot be ignored as insignificant. The credibility of the evidence relating to identification depends largely on the opportunity of the witnesses to observe the assailants when the crime was committed and memorise their impression. Of course, he has identified the said accused in court while giving evidence. As already stated, in the case on hand, no credence could be attributed to the said identification as he had ample opportunity to ascertain the features of the said accused, before giving evidence. As already found, no credence could be attributed to the identification of accused Nos.3 and 8 by PW1 in the TIP also. The only question remaining is as to whether the evidence of PW1 that he could notice the features of the assailants so as to identify them later could be believed. As in the case of the first accused, PW1 had no prior acquaintance with accused Nos.3 and 8 also. Even though he has not disclosed anything in Ext.P1 First Information Statement as to the source of the light to notice the features of the assailants so as to enable him to identify later, in his evidence, he has stated that he could see the assailants in the background of the headlight of the car driven by him and also the cabin light of the said car which would automatically turn on when any of the doors of the car is opened. Similarly, the version of PW1 in Ext.P1 First Information Statement was that three among the five assailants entered the vehicle through its front doors, one from the right door and two from the left door and the remaining two entered the vehicle through its back doors, one from the left door and other from the back door. It was also stated by PW1 in Ext.P1 First Information Statement that the assailants who entered the car in the aforesaid manner have beaten him and the deceased using the weapons carried by them and after sometime they have laid him in the gap between the front and back seats and he was held upside down on the deceased. The relevant portion of the First Information Statement reads thus:

"ഈ സമയടതലക  മറ  കലബപ  എടനയ  കര  കടയയ  വട ടകകണ  കതകയ  സകടകകണ  ഇട കകയ  ടചയനണകയ രന. കറച കഴ ഞബപക  കര  കയടട   <വ ള  ബക കകതകയ . കര  കടയ അവ  തകടഴ പ   സ റ   ടയ <കയ  ക ടതകയ  അത    മകള   എടന ത< തകബഴകട  കകലക  ബമ ബപകടമകയ  ടവച  ചവ ട  പ ട കകയ  ടചയ.”

In the evidence, what was stated by PW1 was that only two among the assailants entered the vehicle through its front doors and remaining assailants entered the vehicle through the back doors. The relevant portion of the evidence tendered by PW1 as regards the overt acts committed by the assailants thereafter reads thus:

"വണ  എടത  ബപകയബപക  ബകക യള 5 ബപര   ഒരക  എട: side ലള door വ< ച  തറന. Driver seat  ബ<ക  കയറ  stearing സകക<കകക ടbമ ച.  ഞങളടട വണ യടട എടത  വശത    ന 3 ബപര   ഒരക മ വശടത എടതഭകഗ  Door തറന  അകത  കയറ  മന ന രന ഒരക കര   ഇരന മദXഭകഗടത seat ട: അടതള Door  തറന  അകത  കയറ വണ യടട എടത  വശത    ന രന ബകക യള 2  ബപര  കര   ഇരന രന മദXഭകഗടത Door തറന  അകത  കയറ . വകഹ ത ട: 4 Door കള  ഏത  തറനകല  Top light കത  (page 11 ) . അകത  കയറ യവടര വണ യ   കയറനത    മമതടന ഞക  Head  light  ടറ ടവള ചത ല കണ. പ ടന Door light ട: ടവള ചത ല  കണ. Driver seat കയറ യയക  എടന തള മകറ  വണ യടട   യനണ  ഏടറടകക ടbമ ച ഞക വ<തകക  ടകകണ  clutch  അമ ത  ചവ ട  പ ട ച അതടകകണ  വണ മഴവ കയ  അയകളടട   യനണത   വന ല. മദXഭകഗടത seat കയറ യവര   ഒരക  Driver seat   ഇരന ആബളകട  "വണ  എടകടക" എന പറഞ "പന  clutch ഇ    ന  കകട<ടകന ല " എന  അയക  പറഞ.

ഇടതഭകഗത രനയക  എട: കക< ട: muscle ശകമകയ  സകടകകണ ഇട ച. വ<ത ഭകഗത രന (Page  12 ) യക  എട: ശര രത ല  മഖത സകമട  ടകകണ  ഇട ച "പന പ<യകട  ബമകട " എന  വ ള ച. ആ സമയത പറക < രനയകള  എട: എടത വശത < രനകയകള  എടന ശകമകയ ഇര മവട ടകകണ  ഇട കക  തടങ . എട: കക  clutch   ന  വ ടബപകയ അബതകടട വകഹ ത ട:  പ ണ  യനണ  Driver  seat ഇരനയക കകയ .

x x x x x x x x

അബപക  മദXഭകഗത  seat < രനയക  ഒര വട വക  മ ഭകഗത  ഇടതഭകഗത രനയക ക  ടകകടത. "ഇത വട: വകയ ബ<ക  ടവച  ടകകടക" എന  പറഞ. വക  കണബതകടട ഞക  മരണ  ഉറപകക . വകള ട: പ ട യ   ഞക  കയറ പ ട ച. അബപകഴകണ  മരത ട: പ ട യള വകളകണ  എന  മ സ <കയത  "വക  വ ടകടക" എന  പറഞ  ഇടത വശടതയക  എടന സകമട  ടകകണ  മ ദ ച. വകള ട: പ ട യ   ഞക  മറക  പ ട ച അബപക  എടതവശത രനയക  "ഇവ   മര യടട ജ വ കണ  " കഴത  പ ട ടകടക എന  പറഞ. അബപക  പ റകവശത    ന  ഒരക  എട: കഴത  പ ട ച  പറബകകട  വ< ച. "Qualis കകറ ട: മ  വശടത seat ക ക ടയ   ഒരട ബയകള  വ ടവണ . അത  കട യകണ  എടന പ ട ച  വ< ചത  അബപക  ഞക  " സkകമ ബയ" എന  വ ള ച. വ ള  പ ത യകകനത    മമ  ഒരക  എട: വകയ ടപകത . വകയടപകത യയകളടട സകവ ര<  ഞക  കട ച. കട  വ ടകത രനബപക  എട: കവ ള   അത ട<കരക  പ ട ചമ ത . അബപക  അയകളടട വ ര< ട< കട യ  വകള ബlലള പ ട യ  വ ട. ആ സമയത  എട: എടതവശത രനയക  കട യള എബmക സകധ   ടകകണ  എട: ട റ യ   5 - 6 ഇട  ഇട ച . ഇട  ഏറബപക എട: കണ  ഇരടടച.  ട റ യ ല  കണ ന തകഴത  മറ വ  പറ .  ബചകര ഒഴക .

ഞക  മ വശടത 2 seat ട: വ ടവ ബ<ക  ടചര ഞ വ ണ. അബപക  പറക  വശത രനയക  "അള യക ഇവട: ബബകധ  ബപകയ " എന  പറഞ അബപക  ഇവര    ഒന  ടചയ ല എനകരത  ബബകധ  ബപകയബപകട< ക ടന.”

The evidence tendered by PW1 that he could notice the features of accused Nos.3 and 8 is to be appreciated in the background of the sequence of overt acts spoken by PW1. The specific case spoken to by PW1 is that the third accused is one among the assailants who entered the vehicle through the front left door and the eighth accused is one among the assailants who entered the vehicle through the back right door. Even if it is assumed that PW1 could notice the features of the third accused who entered the vehicle through its front left door, we wonder as to how in a situation of this nature PW1 could notice the features of the eighth accused who entered the back seat through the door behind him. That apart, in the nature of the sequence of overt acts spoken about by PW1 as extracted above, we are of the view that it is extremely difficult for PW1 who is placed in a situation of this nature to observe the features of the assailants so as to identify them later. At any rate, in the absence of any other convincing evidence as to the identity of the assailants, it is neither satisfactory nor safe to place reliance on the sole testimony of PW1 to hold that accused Nos.3 and 8 were among the assailants.

True, the prosecution has placed reliance on the recoveries of MO1(b) iron pipe and MO2 wooden stick based on the disclosure made by accused Nos.3 and 8 respectively to establish their presence at the scene when the occurrence took place. Assuming it to be true, according to us, the same cannot be the basis of conviction. The recovery of incriminating articles and its evidentiary value have to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused [See Wakkar v. State of U.P., (2011) 3 SCC 306].

Needless to say, accused Nos.1, 3 and 8 are entitled to the benefit of doubt.

In the result, the Criminal Appeals are allowed, the conviction of the appellants and the sentence imposed on them by the Court of Session are set aside and the appellants are acquitted.