Royson and Another vs State of Kerala

Padmanabhan, J.—The two Appellants in Criminal Appeal No. 330 of 1986 were tried and convicted for offences punishable under Sections 302, 379 and 201 with the aid of Section 34 of the Indian Penal Code. For murder, life imprisonment was awarded to both of them. No separate sentence was given for the other offences. Criminal Appeal No. 451 of 1986 was filed by the State for enhancement of the sentence.

Deceased Chandran Nair and P.W. 1 Appukuttan were close friends hailing from Thiruvananthapuram. They were engaged in selling cloths on instalment basis at Poothole in Thrissur. Their joint residence was in one of the rooms in the residential building of P.W. 3 at Adiyat lane, Poothole. P.W. 2 Ibrahim is a shop owner at Poothole. He was the common friend of Chandran Nair and P.W. 1. First accused Royson Alias Paul was the driver of the second accused Madhavar. The second accused was having a white tourist ambassador car, KEE 5817, and a tempo van. These two Appellants were also friends of Chandran Nair. Second accused had some business failure and he was in financial difficulties.

Accused 1 and 2 persuaded Chandran Nair to join them in a partnership for buying and selling automobiles. The total investment agreed was Rs. 60,000. That had to be shared by all the three equally. Chandran Nair had no funds. He knew that P.W. 1 will not allow him to go in for car business. He, therefore, requested P.W. 1 for an advance of Rs. 20,000 as if it was for being paid to P.W. 2. P.W. 1 gave Rs. 16,000. He was able to command only that much of money. Chandran Nair somehow or other collected Rs. 3,000 more. The shortage of ''Rs- 1,000 was received from P.W. 2 P.W. 2 was told about the real need for money. At that time, a further request was made to him that P.W. 1 should not be informed about the purpose of purchasing the car. So also, Chandran Nair did not inform P.W. 2 that in his name he borrowed Rs. 16,000 from P.W. 1.

Chandran Nair informed P.W. 1 that early morning on 9th January 1984 he was going with some friends for attending a marriage. The amount of Rs. 20,000 was covered by him in a presentation paper packet taken from the shop of P.W. 2 in order to make it appear to P.W. 1 that it was only a presentation for the marriage.

Early morning on 9th January 1984, at about 4.30, accused 1 and 2 came in KEE 5817 driven, by the first accused. With the amount of Rs. 20,000 covered in the presentation paper, Chandran "Nair accompanied them in the car. At about 5.30, they reached Vaniampara. The car was stopped in an isolated place, near the old P.W.D. Road at Kuthiran. All the three got down to pass urine. When the deceased was about to enter the car, the first accused caught-hold of his neck from behind. He was strangulated and pushed inside the back seat of the car. Second accused caught-hold of his legs and pushed him inside. When Chandran Nair resisted and struggled, he was pushed down in front of the back seat. Second accused stood on his legs and pulled his hair on the scalp with force. ''In furtherance of their common intention, they murdered him. Then they removed his watch and the amount of Rs. 20,000 also. With the intention of screening themselves from the legal punishment, they caused disappearance of the evidence. A black towel was taken from the car and tied around the neck of the deceased. The dead body was covered in a gunny bag and placed in the dickey. The car was then driven to Vazhachal through Chalakkudi-Anamala road. The body was taken out and placed beneath an Elaku tree in the Elaku plantation, 82 meters north of the road. Then both the Appellants returned to Thrissur. On the way, the presentation paper was thrown away near the canal bridge at Potta. The car was then given for body wash to Thrissur Petrol Sales and Service. The gunny bag was thrown into a gutter. The black towel was given to P.W. 25. The wrist watch was given to C.W. 16, who is the mother of the second accused. KEE 5817 was subsequently exchanged for KEF 3967. This is the prosecution case.

Defence of the Appellants is a total denial of their involvement. They would say that Chandran Nair was heavily involved in debts and, therefore, he absconded from the place.

The evidence consists of the depositions of P. Ws. 1 to 63, Exts. P-1 to P-74 and M.Os. 1 to 37. Exts. XI to X5(b) are the third party documents. No defence witness was examined. Exts. D-1 to D-4 are the defence documents.

P.W. 14, a forest guard of Vazhachal Range, saw the dead body on 1st February 1984. He gave Ext. P-9 report to the Range Officer, P.W. 15. P.W. 15 gave Ext. P-10 report to the police station. That is how the ease was registered. Investigation was by P.W. 63. Charge was laid by P.W. 62,

The case depends purely on circumstantial evidence. The question for consideration in Criminal Appeal No. 330 of 1986 is whether the circumstantial evidence is sufficient for conviction. If the evidence is found sufficient and the conviction is to be maintained, the question for consideration in the State appeal is whether this is one of the rarest of rare cases deserving the extreme penalty.

The nature and extent of proof for conviction in a case depending solely on circumstantial evidence is now well settled. The evidence must satisfy three tests, viz. (i) the circumstances, from which the inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt, but should be inconsistent with innocence also. It is not necessary that there should be any particular number of circumstances. What is required is the conclusiveness of the circumstances which alone will make the chain complete with all the required links. Even if a particular link is suspicious, it is of no consequence if it is satisfactorily explained and the Suspicion removed by other items of evidence. Law does not require the prosecution to achieve meticulous perfection which is next to impossibility.

We are not going to analyse the entire evidence before us. Our endeavour will be to confine consideration to absolute necessary and relevant facts. Learned Counsel for the Appellants pointed out that the prosecution failed in establishing (a) that Appellants 1 and 2 were seen with the deceased, (b) that they entered into a partnership with him, and (c) that the deceased had the amount with him and he joined them. Therefore, it was pointed out that the conviction is without any legal evidence and hence, it cannot stand.

The first question to be considered is whether Chandran Nair is alive or dead. If he is dead, the further question is whether he had a homicidal death, as alleged. Dead body was seen first only after about three weeks from the alleged date of death. That was on 1st February 1984. Ext. P-9 is the report by P.W. 14, who saw the dead body. That, was given to his superior officer, P.W. 15. It was P.W. 15 who set the law in motion by giving Ext. P-10 report to the police. Case was registered by P.W. 55. He held inquest over the dead body. The report is Ext P-13. M.O. 2 pant was lying close the dead body. It contained the name ''Chandran''. M.O. 1 is the shirt found on the dead body itself. The left pocket of the shirt contained inscription of the letters ''RS''. The evidence is that it is the short form of ''Redson International Tailors'', from where it was stitched. M.O. 3 series are the shoes found near the dead body. M.O. 6 series are the socks, one of which was on the leg and the other was near the dead body. So also. M.O. 4 sheddy was there. In the pant pocket, there was M.O. 5 kerchief. A tuft of hair was also found near the dead body.

Autopsy was held by P.W. 33. Ext. P-30 is the postmortem certificate. The body underwent extreme putrefaction. All the soft tissues were removed from the body. Therefore, it was not possible to note any ante-mortem injuries. Cause of death was, therefore, incapable of being found out- Ext. P.-32 is the report of chemical analysis of the viscera contents. Ext. P-31 is the final opinion. No poison was detected evidencing suicide. The exact time of death was also impossible of ascertainment. The opinion given is that death must have been two weeks or more prior to post-mortem examination. P.W. 33 said that once decomposition advanced, no sign of injury or strangulation could be seen on the body. Any now, from the place where the dead body was found this could only be a case of murder and the body being carried and placed there after murder. The deceased had absolutely n0 reason to go over there. Heart attack suspected in the inquest could only be a guess work. Going by the facts on record, death by heart attack in that location is next to impossibility. So also, we are having the evidence of P.W. 59 and Ext. P-61 report submitted by him. Giving the opinion that the hair found inside the car (seat and dickey) KEE 5817 and that collected from near the dead body would have come from the same scalp.

P.W. 37 is the tailor who is running Redson International Tailors at Thrissur. The evidence of P.Ws. 1 and 37 show that P.W. 1 and the deceased were having their garments prepared by P.W. 37. P.W. 37 gave evidence that M.O: 1 shirt and M.O. 2 pant were made by him and given to the deceased six months prior to the incident- He said that the inscription ''RS'' refers to his shop. His evidence is that the name ''Chandran'' in the pocket of M.O. 2 was written by him. He also said that M.O. 5 kerchief was made by him for the deceased- The evidence of P.W. 1 is that himself and the deceased jointly purchased some cut pieces with which some kerchieves were made, including M.O. 5. M.O. 3 series shoes were also identified by P.W. 1 as those worn by the deceased. He had an additional reason to identify these shoes not only as the roommate and close friend of the deceased, but also as a person who was present when these shoes were purchased from Madras. P.W. 1 identified M.Os. 1 to 6 as specific items of dress worn by the deceased at the time when he left the room early morning on 9th January 1984 never to return. M.O. 19 watch was also identified by P.W. 1 as the one which belonged to the deceased and worn by him when he was last seen alive. In the strap of that watch, the name of the deceased is seen engraved.

When P.W. 63 arrested and questioned the second accused, he gave information that M.O. 19 watch was entrusted by him to his mother at his residence. He offered to point out the house and the mother. Accordingly he led the police party to his house and called his mother. When the mother came out, he requested her to bring the watch given by him. The mother C.W. 15 brought the watch. It is M.O. 19. It was seized under Ext. P-4 mahazar. It is seen that the strap of M.O. 19 contained the inscription of the name of the deceased. These facts are proved by the evidence of P.Ws. 11, 50 and 63. The information and the discovery definitely come within the purview of Section 27 of the Evidence Act Instead of being concealed in a place, the concealment in this case is by entrustment with a person. The authorship of the concealment by entrustment and knowledge about it were exclusive to that of the second accused. The discovery of the watch is the direct consequence of the information given by the second accused. The correctness of that information is guaranteed by the discovery. The identification of that watch to be that of the deceased and worn by him when he was last seen alive in the company of the accused is a clinching circumstance. When the second accused was not able to offer any explanation at all for the possession of the watch, the in criminative aspect has reached its zenith. That is evidently a circumstance which leads to the conclusion of homicidal death of Chandran Nair.

The evidence of P.Ws. 1, 2 and 3 clearly indicate that Chandran Nair went out under the pretext of going for a marriage though actually he went along with the Appellants for purchasing car. The other items of evidence we are going to discuss in the succeeding paragraphs will indicate that he went in KEE 5817 in the company of the Appellants. Though the Appellants returned. Chandran Nair never returned and they were not able to give any information also. The Appellants were not able to explain how Chandran Nair is missing. The fact that Chandran Nair was a close friend of the Appellants is clear from the depositions of P.Ws. 38 and 41 as well as other items of evidence. If he is actually alive, he would have definitely returned, or contacted his parents or P.Ws. 1 and 2. These are indications that he is not alive and the dead body found out was that of Chandran Nair. We are of opinion that he had a homicidal death. This conclusion of ours is further strengthened by the materials, which we are going to discuss further.

P.W. 44 is a photographer. M.O. 21 is a photograph of the deceased taken by him. M.O. 30 is its negative. Ext. X2 is the ledger maintained by P.W. 44. It contains the relevant entry. His bill book is M.O. 35. The photo was taken on 22nd April 1983. It was given to the deceased on 26th April 1983, Photo was taken wearing M.O. 32 coat supplied from the studio of P.W. 44. Ext. P-44 is the mahazar by which these records were seized by P.W. 63 from his studio. M.O. 8 was identified by this witness as a copy of M Order 21 photo of the deceased.

The skull and mandible of the dead body as well as the photograph of Chandran Nair were given to Dr. Umadathan, who was the Professor of Forensic Medicine and Police Surgeon at the Medical College, Alapuzha. He was not available for examination as he was employed in Libya. His opinion, Ext. P-41, and the disposition pictures belonging to the skull and the person contained in Ext. P-42 prepared by him on the basis of the photograph were proved through P.W. 61. P W. 61 is Dr. Kanthaswamy, Principal of Medical College, Thrissur. Dr. Umadathan was his student. Both are experts in forensic medicine and well-versed in the technique of identifying persons from skull bone by the technic of superimposition. By that process, in Ext. P-41, Dr. Umadathan gave the opinion that the skull and mandible supplied to him could have belonged to the person in the photograph supplied to him.

P.W. 61 gave evidence that the anatomical points and anthropological landmarks studied for comparison of the pictures by Dr. Umadathan and employed by him are the standard methods and techniques followed in superimposition and the opinion in Ext. P-41 is reasonable and based on right criteria. It is true that, as admitted by him, this is not a conclusive proof for establishing identity. But it gives highly probable evidence. It is true that the possibility of two persons having the same anthropological landmarks and anatomical points cannot be completely ruled out. That is why it cannot be accepted as a sole and fool-proof method of identification. There cannot be any dispute that it can be accepted atleast as a safe test for exclusion. If errors do not creep in, the technique of superimposition can be fully correct in its conclusion in cases where the possibility of two persons having the same anatomical points and anthropological landmarks is excluded. Anyhow, its acceptability atleast as a corroborative or supporting piece of evidence to tilt the balance, cannot be doubted. We are of opinion, on the basis of the points already considered and yet to be. considered, that the prosecution succeeded in establishing the identity of the deceased as Chandran Nair and that he had a homicidal death.

It is true that the evidence of P.Ws. 1, 2 and 3 do not conclusively establish that Chandran Nair went in the company of the Appellants. None of them saw the car or the accused at the time when. Chandran Nair left early morning on 9th January 1984. But it is established by the evidence that Chandran Nair was a close, friend of Appellants 1 and 2.

The evidence of P.Ws. 1 and 3 clearly establish the fact that Chandran Nair left the room at 4.30 a.m. on 9th January 1984 wearing M. Os. 1 to 6 and holding something covered in a presentation paper packets. He went out as if he was going to attend a marriage in the company of some friends with the promise that he will return that evening itself. The evidence of P.W. 1 is that a few days before that he requested for a loan of Rs. 20,000 from him as if it was for the necessities of P.W. 2. P.W. 1 said that he paid Rs. 16,000. He said that only a negligible portion out of it was withdrawn from his bank accounts. The balance was collected by him from Ors. out of friendship towards the deceased. There is nothing uncommon in what he did to oblige a close friend. The main attack was that the prosecution did not succeed in establishing as to how P.W. 1 collected the amount. It is said that his pass book and bank accounts were not produced and, therefore, his evidence cannot be accepted. But, in the box, P.W. 1 said that his bank account was shown to the investigating officer, but he did not seize it. P.W. 63 admitted having seen the pass book of P.W. 1. He said that he did not seize the same and produce it in court only because the amount withdrawn was negligible. We do not find any reason to disbelieve P. Ws. 1 and 63 in this respect.

The evidence of P.Ws. 1 and 2 show that the real purpose viz. car business was made known only to P.W. 2 and it was kept a secret from P.W.I. The reason is that P.W. 1 will stand in the way if the real purpose is made known to him. That is why he told P.W. 1 that the amount is for P.W. 2. P.W. 2 was not informed by the deceased that on his behalf amounts were borrowed - from P.W. 1. P.W. 2 was asked by the deceased to keep the car business a secret from P.W. 1. The presentation paper packet was taken from the shop of. P.W. 2. Rs. 1,000 was also borrowed from him. That is his evidence. P.W. 2 further said that the entire amount was counted in his presence and packed in the paper packet. It was this paper packet that was carried by the deceased on 9th January 1984 wrongly informing P.Ws. 1 and 3 that it is a presentation to be given for the marriage. The fact that Chandran Nair carried this paper packet at the time when he left his room on 9th January 1984 early morning is clear beyond doubt from the evidence of P.Ws. 1 and 3. We have absolutely no reason to disbelieve these two impartial witnesses. It could, therefore, be safely found that deceased Chandran Nair left the room wearing M.Os. 1 to 6 and carrying the paper packet containing Rs. 20,000.

P.W. 5 is a neighbour of accused 1 and 2. He knew both of them very closely. At about 4.00 a.m. on 9th January 1984, he saw accused 1 and 2 starting KEE 5817 and going out. They told him that they are going to purchase a car. Thereafter, he saw the car coming back by about 7-30 a.m. Then again they went out. He saw the car again only after two days.

P.W. 6 is a tea shop owner near Vellanikara Rubber Estate. He also knew accused 1 and 2 very well. His evidence shows that at about 5.00 a.m. on 9th January 1984, these two Appellants along with the deceased came in the car and had tea from his shop. Chandran Nair was not known to him- But. he identified Chandran Nair by his dress as well as the photograph and said that it was he wh0 paid the cash. The presence of P.W. 7 at that time was also spoken to by P.W. 6.

P.W. 7 is a headload worker belonging to I.N.T.U.C. He fully supported the evidence of P.W. 6. The car was also identified by these two witnesses. They are impartial witnesses against whom there is not even a suggestion of any motive for false implication. When the evidence of P.Ws. 1 and 3 is read along with the evidence of P.Ws. 6 and 7, it is clear that the deceased left the room early morning on 9th January 1984 in the company of these two Appellants in the ambassador car KEE 5817. So also, it is evident- that the deceased was at that time having Rs. 20,000 in hand.

The evidence of P.W. 5 was corroborated by P.Ws. 9 and 10: Their evidence show that on 9th January 1984 accused 1 and 2 went out in the car at 4.30 a.m. They came back to Thrissur at 7.30 a.m. They again left the place carrying P.W. 10 and Anr. person also in the car. Both of them got down in Thrissur town and the car proceeded. The prosecution case is that this trip was after murder and that at that time the dead body of Chandran Nair was in the dicky of the car.

P.W. 16 is the receptionist in the Golden Bar at Kodakara. By about noon on 9th January 1934, both the Appellants went to the bar and had food. This witness had some reason to particularly remember these two persons. Against the usual practice, of the bill being paid through waiters, these two persons carried the cash to the counter itself. They were making a hurry to get the balance. So also, they were carrying a liquor bottle in the hand. For these reasons, this witness particularly remembered the presence of these two Appellants.

P.W. 17 is the salesman in the Kalyan Agencies and Petroleum Pump at Ollur. He said that both the Appellants came in KEE 5817 on 9th January 1984 and purchased 30 liters of petrol. Ext. P-II is the bill. It was just before noon. These two Appellants were known to him earlier also. The evidence of this witness is also the least suspicious.

On 9th January 1984, at about 4.00 or 4.30 p.m., while P.W. 18 was going on his motor cycle along with his friend Janardhanan to Peringalkuthu through Vazhachal, his vehicle had a brake down. When they were waiting, they saw Appellants 1 and 2 coming in KEE 5817. P.W. 18 signalled for the car to stop in order to ascertain the availability of tools to repair his vehicle. The first Appellant, who was driving the car, slowed down and answered in the negative to the query whether tools could be speared. This witness said that the normal practice in the high-ranges is that such request will not be turned down by anybody. For this reason also, the witness particularly remembered the car and the Appellants. P.W. 19 also saw Appellants 1 and 2 coming to his tea shop at Potta Junction in the afternoon of 9th January 1984. They purchased pappadavada from his shop. He also said that both of them came in KEE 5817. According to him, they went further towards east. There is absolutely no reason to disbelieve any of these witnesses even though there are some mistakes and contradictions on some minor points. They are impartial witnesses who have no interest in the prosecution or enmity towards the Appellants. The Appellants were, not known to some of them, but they had occasion to observe and identify them properly. The mere fact that their photographs appeared in news papers by itself is no reason to disbelieve the identification made by them during the test identification parade conducted by P.W. 39. Exts. P-36 and 36(a) are the report and the memorandum prepared by him. The Appellants had absolutely no valid explanation to offer why they went through those places. The routs where the Appellants were seen leads to the place from where the dead body was subsequently recovered. The only possible conclusion in such circumstances is that the Appellants were going about in search of a place where the dead body could be disposed of without being noticed by anybody.

Recovery of M.O. 19 watch on the information given by the second accused is a clinching piece of circumstantial evidence against the Appellants. P.Ws. 11, 50 and 63 gave evidence in this respect. M.O. 19 watch was identified by many witnesses, particularly P.W. 1, as the one belonged to the deceased and worn by him when he was last seen alive-One redeeming feature in identifying this watch is that its strap contains, the name of the deceased. The second Appellant had absolutely no explanation to offer as to how he came in possession of this watch if it is otherwise than by theft after the murder of Chandran Nair. This particular circumstances alone would have been sufficient to come to the conclusion that the Appellants are the murderers of Chandran Nair.

P.W. 29 was examined to prove that on 9th January 1984 the first Appellant paid Rs. 5,000 to her towards the amounts already due. But this witness turned hostile and said that the payment was made in December 1983 and it Was deposited by her in December itself in the Federal Bank. There is no documentary evidence in support of what she said. At the same time, she admitted having given the amount to the police. She (is a relation of the first Appellant. P.W. 45 is a car broker. It was from him that the second Appellant purchased the two cars. When KEE 5817 was purchased by the second Appellant from him, certain amount was due as balance after the payments already made. That was the hire purchase amount due to the bank. He said that on 10th January 1984 he saw both the Appellants going together to the Thuruthi branch of the Federal Bank for the purpose of making payment of the instalment. P.W. 60 is the Branch Manager of the bank. The loan ledger of the bank was taken to custody by the police under Ext. P-64. But it was returned because the bank was in daily use of it. The general cash book is Ext. X-4. In that there is an entry of repayment of Rs. 2,000 towards the above loan on 10th January 1984, But this witness was not in a position to say. who remitted the amount. That deficiency was made up by the examination of P.W. 36, who was a Clerk in that bank. He said that the remittance on that day was made by accused 1 and 2, who went over there. He also identified the handwriting and signature in M.O. 29 as that of the first Appellant., The evidence of P.W. 45 further shows that on 21st January 1984, the second Appellant surrendered KEE 5817 in'' exchange for a diesel ambassador car KEF 3967 for an amount of 1,20,000. But no cash was paid.

P.W. 51 is the father of the second Appellant. His evidence shows that the second Appellant sustained loss in rice business and, therefore, he had to sell his tempo van. He is a hostile witness. Anyhow, his evidence that his son was in financial difficulties could be accepted. It has to be remembered that all these money transactions were at a time when the second Appellant was in financial strain. Therefore, these money transactions will have to be appreciated in that background

P.W. 12 is a money lender. We are not at the Question whether he was running the business with a licence or not. If he was not having a licence, it is for the appropriate authorities to take action against him. His evidence shows that in December 1981, Appellants 1 and 2 pledged a gold ornament with him and took a loan of Rs. 5,000. Ext. XI is his register. He said that the amount was paid back on 9th January 1984 and the account closed- The ornament was taken back. This payment was proved through his Clerk, examined as P.W. 13. He said that the payment was made by the Appellants and that the application is Ext. P-5. He also said that Ext. X-1 was sent by the Appellants.

P.W. 27 is a neighbour of the Appellants, to whom amounts were due from the second Appellant. On 10th January 1984, the second Appellant paid him Rs. 1,200. This amount was recovered from him by the police under Ext. P-20.

The currency notes are M.O. 26 series. The Appellants were not able to explain how they came by these funds if it is not from the 20,000 rupees stolen from the deceased.

We have earlier referred to a presentation paper in which the deceased carried Rs. 20,000. That paper is M.O. 20. The gunny bag in which the dead body is alleged to have been covered and kept in the dickey is M.O. 23. The black towel said to have been tied around the neck of the dead body is M.O. 24. The evidence of P.Ws. 21 and 63 show that on the basis of the information given by the accused, M.O. 20 presentation paper was recovered under Ext. P-14 mahazar. That was identified by P.Ws. 1 to 3 as the one in which money was" carried by the deceased.

P.W. 24 is the Manager of the Service Station in which the Appellants had a body wash of KEE 5817. On the basis of the information given lay the first Appellant, M.O. 23 gunny bag was seized by P.W. 63 under Ext, P-17 mahazar from a gutter pointed out by him. This witness and P.W. 25 proved the further fact that at the time of body wash of KEE 5817, M.O. 24 towel was given by the accused to P.W. 25. That was recovered from him under Ext. P-18 mahazar. P.W. 25 is an employee in the Service Station. These are also incriminating items of circumstantial evidence against the Appellants.

P.W. 59 is the Assistant Director of Biology Division, Forensic Science Laboratory, Thiruvananthapuram. He is qualified in Forensic Technology and is an expert. KEE 5817 was examined by him. Hairs and fibers were collected by him from inside the dickey and under the seats as directed by the police. They were handed over to them. His report is Ext. P-61. Thereafter he received the parcel for examination from the investigating agency. It contained four packets. Items No. 1 contained four long hairs, 13 short hairs and a few textile fibers. Item No. 2 contained five long hairs. There were several short hairs in Item No. 3. Item No. 4 is a tuft of hair found by the side of the dead body. They were washed and cleaned and examined in detail through a microscope. 25 hairs were collected at random and examined in detail. Five long hairs in Item No. 1 and five long hairs in Item No. 2 were different in colour and texture from the short ones in Item No. 4. Hence they were eliminated. 13 short hairs in Item No. 1 collected from the carpet inside the car in front of the back seat and 7 hairs in Item No. 3 collected from inside the dickey were subjected to further detailed examination and comparision with those in Item No. 4 collected from near the dead body. In the 13 hairs in Item No. 1, roots were present and tips were cut. The medullae were totally absent. The scale pattern was of the typical irregular annular type. Average scale count was found to be 150 per mm. Seven short hairs in Item No. 3 were found exactly similar t0 those in Item Nos. 1 and 4. His opinion is that the 13 hairs collected from the carpet in front of the back seat of the car i.e. Item No. 1 and 7 hairs collected from inside the dickey, which is Item No. 3 are quite similar to the hairs collected from near the dead body (Item No. 4). His report is Ext. P-40. He said that the 13 hairs in Item No. 1 and 7 hairs in Item No. 3 were similar in all parameters chosen for comparison to the hairs in Item No. 4 and hence they could have come from the same source viz., the same scalp, which means the same head, definitely a human head. He also said that the presence of roots in the hair means that it must have been forcibly pulled out. But the nature of roots will be different in fallen hairs and it could be distinguished. He is definite that the hairs found inside the car were forcibly pulled out. That is the prosecution case also.

It was argued for the Appellants, based oh the decision in Ravi Achan''s case ILR 1989 (2) Ker and the test book on Medical Jurisprudence and Toxicology that hair analysis has not yet developed as a perfect science. It is true that on many aspect the science is having certain imperfections, but atleast in certain aspects, the science could be considered to have attained atleast nearness to perfection. For example, in the text book of criminal investigation by John Adam and Collyer Adam, fifth edition by Richard Leofric Jackson, at page 110, it is said that the detailed structure of the medulla and its diameter, compared with that of the hair shaft as a whole, together with the distribution and character of the pigment, the scale pattern of the cuticle and the appearance of the hair in transverse Section, all provide features which, in the aggregate, enable the expert to identify any given hair with certainty. From the microscopic examination itself, it may be possible to say whether the hairs are of the same or of different colours or size and from the examination, it may help in deciding where the hairs come from.

Ravi Achan''s case ILR 1989 (2) Ker was only considering the question whether hair analysis could be the sole basis for conviction. The answer was in the negative. We are; not concerned with such a situation. Here we are having overwhelming circumstantial evidence. Hair analysis is only one of the items. In Maghar Singh Vs. State of Punjab, the opinion of hair analysis was accepted by the Supreme Court as the basis for conviction. The same view was taken by the Supreme Court in Kanbi Karsan Jadav Vs. State of Gujarat, . The opinion given by P.W. 59 appears to us to be acceptable. In view of his opinion, it is clear that the hairs found in the car were similar to those found near the dead body with the only difference that the former hairs were pulled out, but the latter were not. That also fits in with the prosecution case. This is also, therefore, a strong link in the chain of circumstantial evidence connecting the Appellants with the homicidal death of Chandran Nair. So also, that evidence connected the Appellants with the offence punishable u/s 201 of the Indian Penal Code.

To all questions asked while examined u/s 313 of the Code, the only answer available to the Appellants was that it is not correct. Finally the first Appellant said that Chandran Nair was heavily involved in debts and hence he left the station. That is an easy way of explaining things. That answer was okayed by the second Appellant. They were not prepared to admit the fact that deceased Chandran Nair was in their company. That is only on account of their inability to explain how he was missing. The stand taken by them is evidently false. A false explanation given by an accused, who is in a position to give correct answer, is also a link in the chain of circumstantial evidence against him. The inevitable conclusion by way of inference from the various items of circumstantial evidence forming a conclusive chain is that Chandran Nair, who was in the company of the Appellants, was murdered by them and the dead body was taken to the place from where it was found. So also, the other inferences are that Rs. 20,000 and the watch, which belonged to the deceased, were stolen by the Appellants after commiting murder. The circumstances clearly indicate that all these acts were done by the Appellants in furtherance of their common intention.

Learned Counsel took us to the decision in The State of Punjab Vs. Bhajan Singh and Others, In that decision, in an identical situation, the Supreme Court said that the doctor, who performed the postmortem examination, was careless inasmuch as he failed to send the dead bodies to the Professor of Anatomy, who might have been in a position to express opinion after examining the hyoid bone and cervical vertebra as to whether the death of the two deceased persons was due to strangulation. In this case, what was revealed by the postmortem examination was that, on- account of the long delay that happened, no sign of violance could be noted as the soft tissues and cartilage matters were all decomposed. We have also stated that, in the circumstances, suicide is next to impossibility. Chandran Nair had absolutely no occasion to go and lie down beneath a tree. When all the items of evidence are put together, the only inference that is possible is that Chandran Nair was done to death by the Appellants and subsequently the body was taken and placed there. The absence of evidence regarding the cause of death should not, therefore, stand the way of fixing criminality as against the Appellants. We fully agree with the Sessions Judge that the prosecution succeeded in establishing beyond doubt that the Appellants are guilty of all the charges, for which they were tried. The convictions are, therefore, only to stand.

The next question to be considered is the one regarding sentence. The State has filed Criminal Appeal No. 451 of 1986. It was argued, on behalf of the State, by the Public Prosecutor that this is one of the rarest of rare cases in which the interest of society demands that the Appellants should not be allowed to live. Even though we do agree with the sentiments expressed by the Public Prosecutor, we do not think that this could be considered as one of the rarest of rare cases where the extreme penalty alone is the solution. We fully agree with the Public Prosecutor that this is a case in which murder was committed not on account of any ill-will towards the deceased. The deceased was the clo5e friend of the Appellants. He was murdered solely for the purpose of getting Rs. 20,000 and the watch. That means the Appellants are persons who are prepared to murder people provided they are able to make gain for themselves. They are really persons dangerous to society. But still, when the other circumstances are also taken into account, we do not think that extreme penalty is the only solution. Therefore, we are not interfering with the sentencing discretion also.

Confirming the convictions and sentences, both the criminal appeals are dismissed.