Sajin @ Saji vs State Of Kerala

P.B.Suresh Kumar, J.

Accused Nos.2, 4 and 5 in Crime No.47 of 2006 of CB-CID, Kozhikode who were tried jointly in S.C.Nos.498 of 2015, 420 of 2013 and 1048 of 2014 respectively on the files of the Court of Session, Kozhikode, are the appellants. They challenge in the appeals the conviction entered and the sentence passed against them in the said cases. Among the appeals, Crl.Appeal No.526 of 2016 is instituted by accused Nos.2 and 4 and Crl.Appeal No.269 of 2016 is instituted by the fifth 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 as stated in the final report is that the deceased and the seventh accused were business partners; 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 5 and one Sudheer 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 and they were tried by the Additional District and Sessions Court, Vatakara in S.C.No.885 of 2006. In the course of the said trial, accused No.2 absconded and accused No.7 passed away. The Court of Session convicted accused Nos.1, 3 and 8 and acquitted the rest.

In the meanwhile, accused Nos.4 and 5 were apprehended and they were also committed for trial by two separate committal orders. On committal, their cases have been taken to file by the Court of Session as S.C.Nos.420 of 2013 and 1048 of 2014 respectively. While so, the second accused, who absconded earlier, was apprehended again and on production before the jurisdictional Magistrate, his case was also committed for trial and on committal, the case of the second accused was taken to file by the Court of Session as S.C.No.498 of 2015. As noted, since the said cases arose from one and the same crime, they were tried together and disposed of by the common judgment impugned in these appeals.

On the accused pleading not guilty of the charges framed against them, the prosecution examined 104 witnesses as PW1 to PW104 and proved through them as many as 205 documents as Exts.P1 to P205. MOs 1 to 85 are the material objects caused to be identified through the prosecution witnesses. Exts.D1 and D2 are the case diary statements of PWs 104 and 99 respectively.

Among the witnesses examined on the side of the prosecution, PW1 is the driver of the vehicle in which the deceased, Abdul Karim was travelling, PW2 is the wife of the deceased, PW28 is the person who purchased MO18 mobile phone, PW41 is a witness to Ext.P41 mahazar evidencing discovery of MO2(a) iron pipe with blue cap, PWs 42 and 43 are the staff of Adhithi Tourist Home, Mahe, PW45 is the skilled person who retrieved messages from MO18 mobile phone, PW54 is a witness to Ext.P51 mahazar, PW59 is the Manager of the Sultan Bathery Branch of State Bank of India, PW61 is the expert attached to the Fingerprint Bureau of the State Government, PW63 is the doctor who treated PW1 at the Medical College Hospital, Kozhikode, PW65 is the police officer who registered Crime No.109 of 2006 of Kodakara Police Station, PW72 is the owner of the mobile shop from where PW28 purchased MO18 mobile phone, PW89 is a person who stated to have seen the second accused on the date of the occurrence, PW87 is the Judicial Magistrate who conducted the Test Identification Parade (TIP) in respect of the second accused, PW99 is the police officer who conducted search in the houses of accused Nos.4 and 5, PW101 is a staff of Dwarka Tourist Home, Sulthan Bathery, PW103 is the police officer who investigated the case and submitted the final report and PW104 is another official of the Fingerprint Bureau of the State Government.

Among the documents proved, Ext.P1 is the First Information Statement, Ext.P8 is the seizure mahazar pertaining to the car used by the deceased at the time of occurrence, Ext.P41 is the seizure mahazar pertaining to the discovery of MO2(a) iron pipe with blue cap, Ext.P41(a) is the disclosure statement of the second accused on the basis of which MO2(a) is stated to have been discovered, Ext.P49 is the search list in respect of the search conducted in the house of the fifth accused from where MO1 photograph, MO65 letter and MO58 series documents relating to the vehicle owned by the deceased were seized, Ext.P51 is the seizure mahazar pertaining to the discovery of MO37 bag, MO45 calculator and MO56 visiting card, from the house of the second accused, Ext.P51(a) is the disclosure statement of the second accused on the basis of which MO37 bag, MO45 calculator and MO56 visiting card are stated to have been discovered, Ext.P57 is the interim report of finger print submitted by PW61, Ext.P60 is the wound Certificate of PW1, Ext.P75 is the seizure mahazar prepared in connection with the discovery of MO66 bill book and MO66(a) bill, Ext.P75(a) is the disclosure statement of the second accused which led to the discovery of MO66 and MO66(a), Ext.P95 is the report of the TIP in respect of the second accused, Ext.P97 is the case sheet relating to the treatment given to PW1 at the Medical College Hospital, Ext.P124 is the search list in respect of the search conducted in the house of the fourth accused from where MO52 purse of the deceased was seized and Ext.P205 is the final finger print report submitted by PW104.

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 Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. Thereupon, the accused examined a witness on their side as DW1. Exts.D4 to D6 are the documents proved by the accused through DW1.

On an appraisal of the materials on record, the Court of Session found accused Nos. 2, 4 and 5 guilty of the offences punishable under Sections 143, 147, 148, 364, 395, 302 and 307 read with Section 149 of the IPC and they were accordingly convicted and sentenced to undergo rigorous imprisonment for three months each for the offence punishable under Section 143 read with Section 149 of the IPC, rigorous imprisonment for one year each for the offence punishable under Section 148 read with Section 149 of the IPC, imprisonment for life for the offence punishable under Section 364 read with Section 149 of the IPC, imprisonment for a term of ten years and to pay fine of Rs.10,000/- each for the offence punishable under Section 307 read with Section 149 of the IPC, imprisonment for a term of ten years and to pay a fine of Rs.10,000/- each for the offence punishable under Section 395 IPC and imprisonment for life and to pay a fine of Rs.1,00,000/-each for the offence punishable under Section 302 IPC. In default of payment of fine, they were also sentenced to undergo simple imprisonment for three years each. As indicated, the appeals are instituted by accused Nos.2, 4 and 5, aggrieved by their conviction and sentence.

In the meanwhile, accused Nos. 1, 3 and 8 in the case who were convicted in the earlier trial challenged their conviction and sentence in Crl.Appeal Nos.1279 of 2013, 1647 of 2013 and 1016 of 2014 before this Court and this Court allowed the said appeals and acquitted them.

Heard the learned counsel for accused Nos.2, 4 and 5 as also the learned Public Prosecutor.

The essence of the submissions made by the learned counsel for the appellants was that the various materials relied on by the prosecution are not sufficient to connect them with the occurrence and therefore, their conviction in the case is unsustainable in law. Per contra, the learned Public Prosecutor supported the decision of the Court of Session contending that having regard to the materials on which reliance was placed by the Court of Session, the conviction of the appellants in the case is inevitable. The learned Public Prosecutor has also taken us elaborately through the evidence of the witnesses, and the documents on which reliance was placed by the Court of Session, to convict the appellants.

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 the appellants under Sections 143, 147, 148, 364, 395, 302 and 307 read with section 149 of the IPC and (2) if not, the relief, if any, which the appellants are entitled to.

The appellants have not challenged seriously the case of the prosecution that the deceased, Abdul Karim 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. The defence of the appellants in the case, however, was only that they were not amongst the assailants. As noted, arguments have been advanced by the learned counsel appearing for the appellants only to establish that the evidence tendered by the prosecution to prove the involvement of the appellants in the occurrence is not satisfactory. The pointed question, therefore, is whether the prosecution has established beyond reasonable doubt, the complicity of the appellants in the occurrence that took place on 11.02.2006, as alleged by the prosecution.

It is relevant in this context to note that even though PW1 has identified the appellants during trial, though not strictly in the manner contemplated by law for dock identification, we do not think that any credence could be attributed to the said identification, inasmuch as the said identification was much after the occurrence and after PW1 had the opportunity to gather the features of the accused.

Going by the prosecution case, the second accused is the assailant who entered the car driven by PW1 through its driver's door, pushed PW1 away from the driver’s seat and took control of the car driven by PW1. Similarly, going by the prosecution case, accused Nos.4 and 5 are the assailants who entered the car driven by PW1 through its rear doors. In Crl.Appeal Nos.1279 of 2013, 1647 of 2013 and 1016 of 2014, this Court held that it is extremely difficult for PW1 who is placed in a situation as explained by him in his evidence, to observe the features of the assailants so as to identify them at a later point of time. Paragraphs 25 and 26 of the judgment dealing with the said aspect read thus:

“25. 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 സമയതല മറ  ന ല  പ ർ എത യ  കര കതയയ വട തക ണ  ക  കയ  കകതക ണ  ഇട ക കയ  ത യ ണയര . ക റച  കഴ ഞപ$ ൾ കര കയ തട ന ലവ ള  പകൾകത യ . കര കതയ അവർ ത തഴ   ൻ സ*റ ന ടയ ല യ  ക ട കയ  അത ന  മ കള ൽ എത  തല ത പഴ ട ക ല കൾപമൽപ$ ട മ യ തവച  വ ട   ട ക കയ  ത യ. ”

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  എട   പ  യപ$ ൾ ബ ക യ ള5 പ ര ൽ ഒര ൾ എന തറside ല ള door വല ച  ത റ  .Driver seat പലക  കയറ  stearing കകകല ക ൻ ത23മ ച . ഞങള തട വണ യ തടഎടത  വ3  ന3  പ ര ൽ ഒര ൾ മ ൻവ3ത എടത ഭ ഗ Door ത റ   അക  കയറ  മ   ൽ ന   ര   ഒര ൾ കര* ഇര   മദ9ഭ ഗത seat ന തറ അട ളDoorതറ   അക   കയറ  വണ യതട എടത  വ3   ന   ര ബ ക യള 2   പ ര കര  ഇര  ര  മദ9ഭ ഗത  Door തറ   അക   കയറ.വ ഹന  ന തറ4 Door കള ൽ ഏത  തറ  ല Top   light ക (page 11 )  .  അക  കയറ യവതര വണ യ ൽ കയറ ത ന  മമതത  ഞ ൻ Headlight   ൻതറ തവള ച  ല കണ .   ത  Door light ന തറ തവള ച  ല കണ . Driver seat ൽ കയറ യയ ൾ എത  തള മ റ വണ യതടന യ2=ണഏതറടകൻത23മ ച ഞ ൻ വലതക ൽ തക ണ  clutch അമർ    വ ട    ട ച അതതക ണ  വണ  മഴവന യ  അയ ളതട ന യ2=ണ  ൽ വ  ല. മദ9ഭ ഗത  seat   ൽ കയറ യവര ൽ ഒര ൾ Driver seat  ൽ ഇര ആപള ട "വണ  എടകട " എ    റഞ"    clutch ഇൽ ന    ക തലടക  ല" എ   അയ ൾ  റഞ. ഇടതഭ ഗ  ര യ ൾഎന തറ ക ല ന muscleതറ ന  3കമ യ  കകതക ണ ഇട ച. വലത ഭ ഗ  ര  (Page 12 )  യ ൾ എന തറ 3ര*ര  ല മഖ  കകമട  തക ണ  ഇട "ച    ലയ ട   പമ തന"  എ    വ ള ച. ആ സമയ    റക ല ര യ ള എന തറ എടത വ3  ല ര  യ ള എത  3കമ യ  ഇര മവട തക ണ ഇട കൻ തടങ  . എന തറ ക ൽclutch ൽ ന    വ ടപ  യ  അപത തട വ ഹന  ന തറ  Bർണന യ2=ണ Driver seat ൽ ഇര യ ൾകയ .

x x x x x x x x

അപ$ ൾ മദ9ഭ ഗ seat ല ര   യ ൾ ഒര   വട വ ൾ മ  ൻഭ ഗ  ഇടത  ഭ ഗ ര   യ ൾക തക ട.  "ഇത വന തറ വ യ പലക തവച  തക ട"  കഎ  റഞ.വ  ൾ കണപത തട ഞ ൻ മരണ ഉറ$ ക  . വ ള ന തറ   ട യ ൽ ഞൻ കയറ $ ട ച. അപ$ ഴ ണ  മര ന തറ   ട യള വ ള ണ  എ   മനസ ല യത" വ ൾ വ ട ട " എ    റഞ  ഇടത  വ3തയ ൾ എത  കകമട  തക ണ  മർദ. ച വ ള ന തറ   ട യ ൽ   ഞൻ   മറക   ട ച  അപ$ ൾ എടതവ3  ര യ ൾ"ഇവന  മBര യതടജ*വന ണ" കഴ    ട തകട എ   റഞ.അപ$ ൾ  റകവ3  ന   ഒര ൾ എന തറ കഴ     ട ച   റപക ട . വല"Qualis ച ക റ ന തറ മൻ വ3ത  seat  കൾക ടയ ൽ ഒരട പയ ള വ ടവണ . അത ൽകBട യ ണ  എത    ട ച  വല ചത  അപ$ൾ ഞൻ "സF മ പയ"  എ   വ ള ച.വ ള   Bർ  യ ക ത ന  മമ  ഒര ൾ എന തറ വ യ ത    . വ യത    യയ ളതട കകവ രല ൽഞൻ കട ച. കട  വ ട ത ര പ$ ൾഎന തറ കവ ള ൽ അത തല ര ൾ   ട ചമർ  . അപ$ ൾ അയ ളതട വ രല തലകട യവ ള പGലള  ട യവ ട . ആ സമയ   എന തറ എടതവ3  ര യ ൾ കട യള എപ= സ ധന തക ണ  എന തറതനറ യ5 ൽ- 6  ഇട  ഇട ച. ഇട  ഏറപ$ ൾ എന തറ കണ  ഇരടടച.തനറ യ ല കണ ന ത ഴ  മറ വ   റ . പ  ര ഒഴക . ഞൻ മൻവ3ത  2 seat  ന തറ വ ടവ പലക  ത ര ഞ വ*ണ.  അപ$ ൾ  റക  വ3 ര   യ ൾ "അള യ ഇവന തറ പബ ധ പ  യ"  എ    റഞ  അപ$ ൾഇവര ന ഒ    ത യ ലഎ   കര  ത പബ ധ പ  യപ  തലക ട .”

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.”

In the light of the findings rendered in the appeals aforesaid preferred by accused Nos.1, 3 and 8 who were also facing trial on identical allegations as levelled against the appellants in the case on hand, the conviction of the appellants cannot be sustained solely based on the evidence of PW1.

Let us, therefore, consider whether there is any other material to establish the presence of the appellants at the scene when the occurrence took place. An exhaustive reading of the impugned judgment would indicate that it is placing reliance on the following facts and circumstances that the Court of Session found the appellants guilty of the offences alleged. As against the second accused, the facts and circumstances relied on by the Court of Session are the following:

i) There is no reason to disbelieve the evidence of PW1 as regards the identification of the second accused inasmuch as the second accused is a person who entered the car driven by PW1 through its door on the side of PW1, after pushing him away from the driver's seat.

ii) The second accused belongs to Thrissur District and PW1 has stated to PW63 doctor that the assailants had dialect similar to the Thrissur slang.

iii) PW1 identified the second accused in the TIP, as the assailant who entered the vehicle through its door on the side of PW1.

iv) MO45 calculator, MO37 bag and MO56 visiting card proved to be belonging to the deceased have been discovered from the house of the second accused based on Ext.P51(a) disclosure statement given by him.

v) MO2(a) iron pipe proved to be one of the weapons used by the assailants for committing the crime has been discovered based on Ext.P41(a) disclosure statement given by the second accused.

vi) The chance fingerprints lifted from the motor car driven by PW1 at the time of occurrence are found to be identical with the fingerprints of the second accused.

vii) PW89 has seen, by about 9 p.m. on the date of occurrence, the second accused driving the motor car which was driven by PW1 at the said time.

viii) PWs  42  and  43  found  the  second  accused along with accused Nos.4 and 5 together after the occurrence, at Adhithi Tourist Home, Mahe.

ix) PW101 found the second accused along with the fourth accused prior to the occurrence at Dwaraka Tourist Home, Sulthan Bathery.

x) The second accused received various amounts after the occurrence through the account of PW81, one of his relatives.

xi) The investigating officer located the service station where the TATA sumo car used by the assailants for committing the crime has been serviced, based on Ext.P75(a) disclosure statement of the second accused.

As against the fourth accused, the materials/circumstances relied on by the Court of Session are the following:

i) There is no reason to disbelieve the evidence of PW1 as regards the identification of the fourth accused in court.

ii) . PW101 has found the fourth accused along with the second accused prior to the occurrence at Dwaraka Tourist Home, Sulthan Bathery.

iii) PWs 42 and 43 found the fourth accused along with second accused after the occurrence at Adhithi Tourist Home, Mahe.

iv) MO52 purse proved to be one belonging to the deceased has been seized from the house of the fourth accused.

As against the fifth accused, the materials/circumstances relied on by the Court of Session are the following:

i) There is no reason to disbelieve the evidence of PW1 as regards the identification of the fifth accused in court.

ii) MO1 photograph of the fifth accused along with another accused, MO65 letter addressed to the deceased and MO58 series documents relating to the vehicle belonging to the deceased have been seized from the house of the fifth accused. It is the aforesaid materials and circumstances which have been highlighted by the learned Public Prosecutor at the time of arguments.

We have examined the facts and circumstances relied on by the Court of Session to hold that the appellants are guilty of the offences alleged against them, and we find that the same are not sufficient to connect the appellants with the occurrence and to hold that the appellants are guilty of the offences alleged against them. We shall give our reasons for arriving at the said conclusion hereunder.

As already noticed, in the appeals preferred by the accused in the case who were tried earlier against their conviction, this Court held categorically that in the peculiar facts of the case, it is not safe to rely on the oral evidence of PW1 to establish the complicity of the accused therein against whom allegations identical to those levelled against the appellants in the case on hand are made. The judgment aforesaid was rendered by a Bench comprising one of us. The learned Public Prosecutor has no case that the evidence tendered by PW1 contains any additional particulars than the evidence tendered by him earlier from which it could be inferred that he had the opportunity to observe the features, if any, of the appellants so as to identify them at a later stage. The learned Public Prosecutor has also no case that PW1 stated in his evidence the features of the appellants, on the basis of which he identified them in the TIP and also in court during trial. As such, we are unable to agree with the finding rendered by the Court of Session that the evidence tendered by PW1 as to the identity of the appellants can be accepted by the court. We take this view also for the reason that there is a categoric finding in the earlier judgment that at any rate, it is not safe to rely on the evidence of PW1 as regards the identity of the assailants who entered the car driven by PW1 through its rear doors, as the allegation as against accused Nos.4 and 5, who are the appellants in one of the appeals, is that they entered the car through its rear doors. Of course, the second accused is a person who allegedly entered the car through its driver's door and took control of the car by pushing PW1 away from his seat and by keeping him in between the two front seats with the help of other assailants who entered the car through the left front door. In the nature of the sequence of overt acts spoken to by PW1, we do not think that PW1 would have been in a position to note the features of the assailant who took control of the vehicle so as to enable PW1 to identify him. In short, it is not safe to place any reliance on the evidence of PW1 while considering the question as regards the prosecution establishing the complicity of the appellants in the occurrence.

As noted, one of the circumstances relied on by the Court of Session to hold that the second accused was the assailant who pushed PW1 away from the driver’s seat of the car which PW1 was driving at the time of occurrence, is that the dialect of the said person was that of the Thrissur slang and the second accused is a person who hails from Thrissur. We are afraid, we are unable to agree with this strange reason. As thousands speak the language in Thrissur slang, according to us, it is not a reason even to suspect the involvement of a person in the occurrence, especially in the particular facts of this case and in the nature of the evidence let in by the prosecution.

It is trite that 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 by the witnesses while in police custody, 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 [See Gireesan Nair v. State of Kerala, (2023) 1 SCC 180]. 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 the second accused in the TIP. The TIP was not conducted for identification of accused Nos.4 and 5, but only for identification of the second accused. The materials indicate that the second accused was though arrested on 07.04.2006, TIP was conducted only after about a month on 12.05.2006. It has come out that in between, after obtaining his custody, the investigating officer has taken the second accused on 18.04.2006 and 20.04.2006 to various places for effecting seizure of material objects based on the disclosure statement claimed to have been given by the second accused. No evidence, not even formal, was let in by the prosecution to prove that there was no opportunity for anyone including the witnesses to see and observe the features of the second accused during this period so as to ensure the credibility of the proposed TIP. That apart, we fail to understand the logic behind conducting a TIP to establish the identity of an accused in a case after effecting seizure of various material objects, based on the disclosure statement given by him. In these circumstances, according to us, it is not safe to place any reliance on the TIP conducted in respect of the second accused while considering the question whether the prosecution has established the complicity of the second accused in the occurrence.

Discovery of MO45, MO37 and MO56 from the house of the second accused based on a disclosure statement made by him is another circumstance on which reliance was placed by the Court of Session. The view taken is that inasmuch as the evidence tendered by PW2, the wife of the deceased would show that MO45 calculator, MO37 bag and MO56 visiting card are articles belonging to the deceased, it was for the second accused to establish as to how he happened to be in possession of the said articles. Ext.P51 is the mahazar prepared in connection with the seizure of the said articles. Ext.P51(a) is the statement alleged to have been given by the second accused which led to the seizure of the said articles. True, PW103, the investigating officer has deposed that the articles aforesaid were seized from the house of the second accused based on the disclosure statement given by the second accused. One of the arguments advanced by the learned counsel for the second accused as regards the seizure of the said articles was that the seizure is seen to have been effected on 20.04.2006, a few days after the custody of the second accused was obtained by the investigating officer and after effecting seizure of MO2(a) iron pipe. According to the learned counsel, there is no explanation from the prosecution as to how the delay occurred, and in the absence of any explanation for the delay, a serious doubt is cast as to the genuineness of the said seizure. It was also argued by the learned counsel for the second accused that PW2 did not state in her evidence that MO37 bag and MO45 calculator are articles which were kept by the deceased with him at the time of occurrence. Similarly, it was argued that there is no evidence from any corner whatsoever that MO56 visiting card is one that was kept by the deceased at the time of occurrence. It was also argued by the learned counsel for the second accused that seizure of the aforesaid articles based on the disclosure statement given by the second accused appears to be too artificial as there is absolutely no reason why the second accused would take those valueless articles and keep the same in his house, if at all he is involved in the occurrence. We are not impressed by the argument advanced by the learned counsel for the second accused that a doubt is cast on the genuineness of the seizure of the said articles merely for the fact that seizure of the said articles were made after two or three days of the release of the second accused to the custody of the investigating officer. But, as noted, the articles found to have been seized are a calculator, a bag and a visiting card. True, PW2 did not specifically state in her evidence that the aforesaid articles were articles kept by the deceased at the time of occurrence. Assuming that PW1 has in fact gave evidence to that effect, we wonder as to how PW2 could state so in respect of a calculator and a bag without there being any identifying features for the same. PW2 has not given any evidence on the basis of which she could identify MO37 and MO45 as the articles of the deceased. She has also not stated that those two articles were kept by the deceased at the time of occurrence. Coming to MO56, it is only a visiting card. PW2 did not also state that MO56 visiting card was kept by the deceased at the time of occurrence. We are, therefore, of the view that it is not safe to place reliance on the evidence of PW103 while considering the question whether the prosecution has established the complicity of the second accused in the occurrence. We take this view also for the reason that PW54, the witness who was examined by the prosecution to prove the seizure has though admitted his signature in Ext.P51 mahazar, he deposed that he did not see the seizure of the said articles. As argued by the learned counsel for the second accused, in the nature of the sequence of events spoken to by PW1 as regards the occurrence and the allegations levelled against the accused, we do not find any reason at all for the second accused to take the said valueless articles of the deceased and keep the same in his house, if at all he is involved.

Coming to the seizure of MO2(a) iron pipe based on the disclosure statement given by the second accused, according to us, the same could be used by the prosecution to connect the second accused with the occurrence only if it is established that MO2(a) iron pipe is one that was carried by the assailants for commission of the crime. True, PW1 has stated in his evidence that when the assailants came out of the car which intercepted the car driven by him, all of them were carrying iron pipes and that MO2 series iron pipes are the iron pipes brought by the accused to the scene for commission of the offences. We wonder as to how PW1 could identify MO2(a) iron pipe which does not have any special identifying feature, as the iron pipe used by one of the assailants for commission of the crime, that too, after several years of the occurrence, in court. That apart, PW1 did not have a case that the second accused entered the car driven by PW1 with an iron pipe. On the other hand, as noted, the evidence tendered by PW1 is that all the five assailants had with them iron pipes in their hands. If the second accused has not entered the car with an iron pipe, MO2(b) seized based on the disclosure may not be of any relevance in the matter of deciding the complicity of the second accused in the crime. Needless to say, the seizure of MO2(a) material object does not improve the prosecution in any manner.

It has come out that the chance finger prints were lifted from the car driven by PW1 at the time of occurrence. PW61 is the finger print expert who lifted the chance fingerprints. Ext.P57 is the interim report submitted by PW61. PW104 is the expert who issued the final report pertaining to the chance fingerprints lifted from the car driven by PW1. Both PWs 61 and 104 deposed that the chance fingerprints lifted from the car were found to be identical to the fingerprints of the second accused. We are unable to accept the evidence tendered by the said witnesses also for the reason that the fingerprints of the second accused were not taken by the investigating officer on his arrest. Instead, the evidence tendered by the said witnesses is that the chance fingerprints were compared with the fingerprints of the second accused taken in Crime No.109 of 2006 of Kodakara Police Station. There is nothing on record to indicate that the fingerprints of the second accused were taken in Crime No.109 of 2006 or that the fingerprints of the second accused, if any, taken in Crime No.109 of 2006 were available in the office of PW61 or PW104. Instead, the only evidence let in by the prosecution in this regard is the evidence of PW65, the Sub Inspector of Police who registered Crime No.109 of 2006. The evidence tendered by the said witness is only to the effect that the second accused herein is an accused in Crime No.109 of 2006. In the absence of any material to indicate that the fingerprints of the second accused were collected in the said case and sent to the Fingerprint Bureau, we are of the view that it is not safe to rely on the evidence tendered by PWs 61 and 104 against the second accused.

Coming to the evidence tendered by PW89, it is to be mentioned that what was deposed by him is that by about 9 p.m. on 11.02.2006, while he was walking to the house of his wife, a green Qualis motor car stopped near him and the driver enquired with him as to the direction to the nearby resort and that the second accused was driving the said car at the relevant time. What was attempted to be proved by the prosecution through the evidence of PW89 was that after taking control of the vehicle driven by PW1 and after throwing the deceased and PW1 away from the vehicle after causing the death of Abdul Karim and assaulting PW1, while the vehicle was being driven by the second accused, PW89 could see the vehicle with the second accused in the driver's seat. We find it difficult to accept the evidence tendered by PW89. First of all, the same is not consistent with the evidence tendered by PW1 inasmuch as the specific case spoken to by PW1 in his First Information Statement is that the car driven by him was intercepted by the car in which the assailants came to the scene by about 9.30 p.m. on 11.02.2006. We have extracted the case of the prosecution as narrated in the final report in the opening paragraphs of this judgment. PW1 has given evidence of a series of overt acts committed by the assailants. Going by the evidence tendered by PW1, the overt acts continued for quite a long time. PW89 has deposed that he did not find anything unusual inside the vehicle when he saw the vehicle. In other words, the evidence was that PW89 saw the vehicle after the assailants threw away the deceased and PW1 from the vehicle. But the time at which PW89 is stated to have seen the vehicle was shortly after 9 p.m. That apart, we wonder as to how a person like PW89 who did not have any previous acquaintance with the second accused could identify the second accused in court as a person who drove the car which he saw about nine years back.

PW42 is the manager of Adhithi Tourist Home, Mahe. He deposed that a person named Kannan took two rooms there on the early hours of 12.02.2006 and six persons occupied the said rooms. PW43 deposed that he used to sleep in the Tourist Home which is being managed by PW42; that on the early hours of 12.02.2006, six persons came there and took two rooms and they left the lodge on the following day by about 9.30 a.m. and that the appellants were among the six persons. PW101 deposed that during 2006, he was the manager of Dwaraka Tourist Home, Sulthan Bathery; that on 08.02.2006, a person named Kannan and four others took two rooms in the Tourist Home; that they vacated the hotel on 10.02.2006; that they took rooms in the Tourist Home again on the evening of 10.02.2006 and vacated on 11.02.2006. PW101 identified accused Nos.2 and 4 as two among the three persons who took rooms in the Tourist Home. The evidence tendered by PW42 and PW43 would show that the appellants were found together after the alleged occurrence. Similarly, the evidence tendered by PW101 would indicate that accused Nos.2 and 4 were together prior to the occurrence. But merely for the reason that two among the appellants were found together before the occurrence and all of them were found together after the occurrence, the same cannot be accepted as the circumstances to establish the complicity of the accused in the occurrence, especially in the absence of any other satisfactory material connecting any of them with the crime.

PW59 was the Manager of the Sultan Bathery Branch of State Bank of India during 2006. He deposed that certain payments were effected to the account of PW81, Jeeja Dayanandan, a relative of the second accused from the Sultan Bathery Branch. PW81 deposed that she is a relative of the second accused and that she received certain payments in her account on 15.02.2006, 21.02.2006, 01.03.2006 and 18.03.2006 and that she withdrew certain amounts from the bank account and entrusted the same to the second accused. She deposed that she does not know as to who deposited the said amount in her account. The fact that certain amounts have been received by the second accused after the occurrence is attempted to be relied on by the prosecution to connect the second accused with the occurrence. We fail to understand as to how the prosecution could connect the second accused with the occurrence merely for the reason that he received certain payments clandestinely through the account of another.

PW103, the investigating officer deposed that based on the disclosure made by the second accused, he could find out the service centre where the car used by the assailants to intercept the car driven by PW1, had been serviced and he could seize MO66 bill book and MO66(a) bill from the said service centre which would show that the car used by the assailants to intercept the car driven by PW1, was serviced there. Ext.P75 is the mahazar prepared in this regard and Ext.P75(a) is the disclosure statement. According to the prosecution, the fact that the second accused knew the place where the car used by the assailants to intercept the vehicle driven by PW1 has been serviced, would establish the complicity of the second accused in the occurrence. We are unable to agree. The said fact is not enough independently, to establish that the second accused was one among the assailants.

As noted, in order to establish the complicity of accused Nos.4 and 5, other than the evidence tendered by PW1, PW42, PW43 and PW101, the prosecution relied on the evidence of PW99 who conducted search in their houses and seized MO52 purse from the house of the fourth accused and MO101 photograph, MO65 letter and MO68 series documents from the house of the fifth accused. PW99 deposed that on 28.06.2006, he conducted a search in the house of the fifth accused and seized MO1 photograph, MO65 letter and MO58 series documents relating to the vehicle of the deceased in terms of Ext.P49 search list. He also deposed that on the same day, he conducted a search in the house of the fourth accused and seized MO52 purse of the deceased in terms of Ext.P124 search list. We have read meticulously the evidence tendered by PW99. In order to attribute some credence to the evidence tendered by PW99, first of all, the prosecution should have established that accused Nos. 4 and 5 were residing at the relevant time in the houses where searches were conducted. There is no formal evidence to the effect that the houses where searches have been conducted are the houses where accused Nos.4 and 5 were residing at the time of occurrence. PW50 is the witness to Ext.P49 search list. In cross-examination, PW50 deposed that he came to the house of the fifth accused after about an hour after the police reached the house of the fifth accused. His evidence would show that he was brought by the police to the house of fifth accused to obtain his signature in the search list and he left the house after putting his signature in the search list, without even reading the facts stated therein. In the cross-examination of PW99 by the counsel for the fifth accused, it was stated by PW99 that the father of the fifth accused was present in the house at the time of search. No explanation is forthcoming as to why the father of the fifth accused was not shown as a witness to Ext.P49 search list. Coming to the search effected in the house of the fourth accused in terms of Ext.P104 search list, though two witnesses therein were cited as prosecution witnesses in the case, they were not examined. As observed in the context of the seizure of MO37 and other articles from the house of the second accused, we fail to understand any reason at all for accused Nos. 4 and 5 to take the said valueless articles of the deceased and keep it in their house, if at all they are involved. The search and seizure of the articles referred to above from the house of accused Nos.4 and 5 also, according to us, cannot be accepted as a material to establish the complicity of the said accused in the occurrence. Above all, possession of an article belonging to the deceased by the accused does not give rise to a presumption that it was the accused who committed the murder of the victim.

The upshot of the above discussion is that the prosecution has not established beyond reasonable doubt the guilt of the appellants. Needless to say, they 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. They shall be set at liberty forthwith and released from custody, if their continued detention is not required in connection with any other case. Registry will communicate the above order to the concerned Prison Authorities forthwith.