Sulaiman and Another vs State of Kerala

M. Sasidharan Nambiar, J.—Appellants were convicted and sentenced for the offences under Sections 454, 302 and 392 read with Section 34 of Indian Penal Code. The prosecution case is that appellants are brothers of one Shamsuddin who was employed in the house of P.W. 5 Samuel, husband of deceased Mariyamma. P.W. 1 Peter @ Benny is their son and P.W. 2 Mohi is the son of the sister of P.W. 1. P.W. 3 Bastin is the son of P.W. 1. On the morning of 21-11-2004 all the inmates of the house of P.W. 5, except deceased Mariyamma had gone to the prayer hall. By about 11.30 am, P.W. 3 sought permission of P.W. 1 to go to their house, which is near to the prayer hall, to answer the call of nature. When P.W. 3 reached the house and opened the front door, he found the body of deceased Mariyamma lying on the floor with a thorthu tied on her neck. P.W. 3 rushed back to the prayer hall and informed it to P.W. 1. P.W. 2 Mohi, was also there along with P.W. 1 at that time. Hearing the news P.W. 2 accompanied by P.W. 3 rushed to the house followed by P.Ws. 1, 5 and others. It is alleged that when P.Ws. 2 and 3 opened the door they found the appellants running out of the house. Though P.W. 2 chased them he could not restrain them. P.W. 1 along with P.W. 5 removed the thorthu from the neck of Mariyamma and took her in a car to Jubilee Mission Hospital, Thrissur. On examination the doctor found Mariyamma dead. P.W. 1 reached Mannuthy Police Station and furnished Ext. P-1 FI statement. It was recorded by P.W. 11 the Assistant Sub Inspector who prepared Ext. P-1 (a) FIR and registered the crime. P.W. 11 informed P.W. 16, the then Circle Inspector of Police who took over the investigation immediately. P.W. 16 conducted the inquest at 2.30 p.m. and prepared Ext. P-2 inquest report. He submitted necessary requisition for conducting post-mortem examination. P.W. 9 Dr. Rajaram, Professor of Forensic Medicine, Medical College Hospital, Thrissur conducted the autopsy and prepared Ext. P-8 post-mortem certificate finding that Mariyamma died due to combined effects of compression over the chest, strangulation and smothering. P.W. 16 reached the scene of occurrence and prepared Ext. P-3 scene mahazar at 5.15 p.m. At the time of preparing the scene mahazar P.W. 16 assured the presence of P.W. 14 fingerprint expert and collected chance fingerprints and palm prints from the house, as the almirah and shelf were found searched by the assailants, P.W. 14 got the photographs of the fingerprints prepared by P.W. 15 Victor David, the photographic Assistant of Police Photographic Bureau. On 26-11-2004 P.W. 16 arrested both the accused. On the information furnished by the first accused P.W. 16 recovered M.O. 1 wrist watch belonging to P.W. 5 and found missing after the incident, under Ext. P-4 recovery mahazar. Under Ext P-6 recovery mahazar P.W. 16 seized the dresses worn by the first accused After the arrest of the accused, the fingerprints of the accused were collected and sent to the Fingerprint Bureau. P.W. 14 examined the chance fingerprints collected from the scene of occurrence with the fingerprints of the accused collected and forwarded to the Fingerprint Bureau and submitted Ext. P-16 report finding that the chance finger and palm prints with that of the accused. After completing investigation final report was laid before Judicial First Class Magistrate III, Thrissur, who committed the case to Sessions Court, Thrissur. Learned Sessions Judge made over the case; for trial to Additional Sessions Court. Accused were defended by a counsel of their choice. When learned Additional Sessions Judge framed charges for the offences under Sections 454, 302 and 392 read with Section 34 of Indian Penal Code, read over and explained to the accused, they pleaded not guilty. The prosecution examined 18 witnesses and marked 30 exhibits and identified M.O. 1 wrist watch. After closing the prosecution evidence, accused were questioned u/s 313 of Code of Criminal Procedure. Though the accused denied the incriminating evidence put to them, they did not offer their version on the incident apart from claiming that they are innocent. Learned Additional Sessions Judge finding that the accused cannot be acquitted u/s 232 of Code of Criminal Procedure, called them to enter on their defence and adduce evidence. Accused did not adduce any evidence.

Learned Additional Sessions Judge on the evidence, relying on the evidence of P.Ws. 2 and 3 held that they identified the appellants at the time when P.Ws. 2 and 3 reached the house, after P.W. 3 returned to the prayer hall and intimated P.W. 1 that the grand mother Mariyamma is lying on the floor with a thorthu tied on her neck;. Learned Additional Sessions Judge also relied on the identification of the second accused by P.W. 2 and both the accused by PW. 3 as corroborated by Ext. P-11 report of P.W. 13 Judicial First Class Magistrate II, Thrissur who conducted tire test identification parade, to rely on the identification by P.Ws. 2 and 3 from the witness box. Learned Additional Sessions Judge also relied on recovery of M.O. 1 wrist watch under Ext. P-4 recovery mahazar, though P.Ws. 7 and 8, the attesting witnesses turned hostile and relied on the evidence of P.Ws. 1 and 5 on identity of M.O. 1, which was taken away by the culprits at the time of the incident. Learned Additional Sessions Judge found that as the recovery of M.O. 1 was immediately after the murder and the robbery and it was recovered on the information furnished by the first accused held that it connects the appellants with the murder and robbery. Learned Additional Sessions Judge also relied on Ext. P-16 report submitted by P.W. 14, whereunder he found that the chance fingerprints collected at the scene of occurrence tally with that of the accused. Based on these findings both the accused were found guilty of the offences under Sections 454, 302 and 392 read with Section 34 of Indian Penal Code. Accused were convicted and sentenced as stated earlier. It is challenged in this appeal.

Learned Senior counsel appearing for the appellants and learned Public Prosecutor were heard.

Learned counsel appearing for the appellants argued that evidence of P.Ws. 2 and 3 that they identified the accused when P.Ws. 2 and 3 reached the house from the prayer hall, can never be believed. It was pointed out that in Ext P-1 F.I. statement furnished by P.W. 1 immediately after the incident, there was no case for P.W. 1 that after P.W. 3 returned to the prayer hall and intimated that he found the grandmother lying on the floor, P.Ws. 2 and 3 reached the house earlier to P.W. 1 or identified the culprits. It was pointed out that instead what was stated in Ext. P-1 was that P.W. 3 had seen a person running from the house when he reached the house for the first time and if that be so, the culprits had escaped from the house even before P.W. 3 left the house and reached the prayer hall and if that be so, even if P.Ws. 2 and 3 had reached the house later, they would not have any opportunity to witness the culprits running from the house. Learned Senior Counsel argued that if P.Ws. 2 or 3 had identified the culprits who ran away from the house and had any doubt of resemblance for them with Shamsuddin, an employee who was working in the house six months earlier to the incident, P.W. 1 would not have disclosed in Ext. P-1 that he does not suspect any person. It is pointed out that if the version of P.Ws. 2 and 3 is correct, in all human probability the name of Shamsuddin or a person similar to Shamsuddin would have been disclosed in Ext. P-1 F.I. statement and it is clear that the case of identifying the culprits later was cooked up at a later stage of investigation and therefore, their evidence should not have been relied on. Learned Senior Counsel also pointed out that in any case identification of the accused from the witness box should not have been relied on, when the accused were admittedly shown to P.Ws. 2 and 3 before the test identification parade from the police station and hence, no value could be attached to the identification of the accused during the test identification parade and therefore, based on the test identification in the test identification parade by P.Ws. 2 and 3, their evidence cannot be relied on. Learned Senior Counsel also argued that recovery of M.O. 1 wrist watch should not have been relied on. It was pointed out that there is contradictory evidence with regard to purchase of M.O. 1 wrist watch as according to P.W. 1 and P.W. 5 it was purchased by P.W. 5, when according to P.W. 16, the investigation revealed that it was given to P.W. 5 by a relative and not purchased by P.W. 5. It was also pointed out that the missing of M.O. 1 watch was not disclosed in Ext. P-1 F.I. statement and when P.Ws. 7 and 8 who are witnesses to Ext. P-4 recovery mahazar deposed that they did not witness the recovery and signed in Ext. P-4 from the road, evidence of P.W. 16 on the recovery should not have been relied on. Learned Senior counsel also pointed out that recovery was not affected not from the place disclosed in the portion of confession statement and on that ground no reliance could be placed on the recovery of M.O. 1. Learned Senior counsel finally argued that though Ext P-16 report, with the evidence of P.W. 14 shows that fingerprints and palm prints examined by P.W. 14 tallies with chance fingerprints collected, there is no evidence to prove: that the fingerprints or the palm prints so compared was that of any of the accused as P.W. 16 Investigating Officer has no case that specimen fingerprints or palm prints of the accused were called and hence identity of the fingerprints and palm prints examined by P.W. 14 and compared with the chance print collected at the scene of occurrence is not established and so based on Ext. P-16 report also the accused cannot be convicted.

Learned Public Prosecutor submitted that there is no reason to disbelieve the identification of the accused by P.Ws. 2 and 3. It was pointed out that P.W. 1 furnished Ext, P-1 F.I. statement immediately on returning from the hospital and the mental condition of P.W. 1 who lost his mother in a gruesome manner is to be born in mind, while appreciating Ext. P-1 F.I. statement. It was pointed out that evidence of P.W. 1 establish that loss of M.O. 1 watch as well as identification of P.Ws. 2. and 3 of the culprits were made known to P.W. 1 only after returning from the police station after lodging Ext. P-1 F.I. statement and hence omission to disclose those facts in Ext. P1 is not a ground to disbelieve the evidence of P.Ws. 2 and 3 on the identification of the accused or M.O. 1. It was argued that when P.W. 3 found the grand mother was lying on the floor, he being a boy aged only 14 years at that time, rushed to the prayer hall and informed his father P.W. 1 and along with P.W. 2, rushed back to the house and then witnessed two culprits, running from the house and in such circumstances, there is no reason to disbelieve the identification. It was pointed out that P.W. 3 had identified both the accused, though P.W. 2 identified only the second accused and when the identification of the accused from the witness box was strengthened by the previous identification at the test identification parade, learned Additional Sessions Judge rightly relied on their evidence. It was also argued that M.O. 1 was identified as the watch which was found missing, immediately after murder, and the evidence of P.W. 16 establish that it was recovered under Ext. P-4 recovery mahazar on the information furnished by the first accused and therefore, recovery of M.O. 1 also connects the accused with the murder and robbery. Learned Public Prosecutor pointed out that though P.W. 16 omitted to depose from the witness box that fingerprints and palm prints of the accused were collected after their arrest, evidence of P.W. 14 establish that he received the finger prints and palm prints of the accused forwarded by the Investigating Officer and those prints were collected from the accused after their arrest by P.W. 16 and there is no reason to suspect the acts and in such circumstances, Ext. P-16 report conclusively prove that the accused were the culprits. It was argued that though brother of the accused was an employee of P.W. 5 and in that capacity the accused used to visit the house of P.W. 5 and used to take food supplied by the deceased Mariyamma, their fingerprints could not have been found inside the house, to be collected by P.W. 14 and when there cannot be identical fingerprints for two persons and Ext. P-16 conclusively establish that the fingerprints of the accused tally with the fingerprints collected from the scene of occurrence, it is conclusively proved that the accused trespassed into the house and committed the murder and robbed M.O. 1 watch and in such circumstances, the conviction is perfectly correct.

Fact that deceased Mariyamma the wife of P.W. 5 was found lying on the floor of the house, when P.W. 3 reached the house from the prayer hall by about 11.30 a.m. on 21-11-2004, was not disputed. The evidence of P.Ws. 1, 3 and 5 on this aspect was not challenged. Their evidence conclusively establish that deceased Mariyamma was found dead and lying on the floor with a thorthu tied on her neck. Evidence of P.Ws. 1 and 3 establish that after P.W. 3 informed P.W. 1 and P.Ws. 1 to 3 and 5 reached the house. P.Ws. 1 and 5 untied the thorthu from the neck. The thorthu was not seized by the Investigating Officer. Evidence of P.Ws. 1 to 3 and 5 that deceased was immediately taken to Jubilee Mission Hospital and on examination she was declared dead was also not challenged. Evidence of P.W. 9 the Professor of Forensic Medicine, Medical College Hospital, Thrissur with Ext P-8 post-mortem certificate conclusively establish that deceased Mariyamma died due to the combined effects of compression over her chest, strangulation and smothering. The question is who are responsible for the strangulation, smothering and murder of Mariyamma.

Learned Additional Sessions Judge relied on the identification of the accused by P.Ws. 2 and 3 and for that purpose relied on the result of test identification parade conducted by P.W. 13, evidenced by Ext. P-11 report. So also recovery of M.O. 1 watch under Ext. P-4 recovery mahazar by P.W. 16 on the information furnished by the first accused and the identity of M.O. 1 being the watch of P.W. 5, based on the evidence of P.Ws. 1 and 5 were relied on. Learned Additional Sessions Judge also relied on the identity of chance prints collected by P.W. 14 end compared with fingerprints supplied by P.W. 16 the Investigating Officer, evidenced by Ext. P-16 report. Ext. P-16 report establish that the finger-prints forwarded by the Investigating Officer to the Fingerprint Bureau were compared with the chance prints collected by P.W. 14 from the scene of occurrence and the comparison establish that they are the finger prints received at the Fingerprint Bureau forwarded by the Investigating Officer. If the fingerprints forwarded by P.W. 16 are the fingerprints collected from the accused, it is definitely the valuable piece of evidence, to connect the accused with the murder and the robbery, as mere cannot be similar fingerprints to two different human beings. But the question is whether there is evidence to prove that the finger-prints compared by P.W. 14 with the chance fingerprints collected from the scene of occurrence, are that of the accused.

Learned. Senior counsel appearing for the appellants pointed out that P.W. 16 the Investigating Officer, did not depose before the Court that he collected the fingerprints or palm prints of either of the accused after their arrest. It was also pointed out that in none of the remand reports submitted to the Court during investigation, it was pointed out that the fingerprints of the accused were collected. It was pointed out that though Ext. P-16 report shows that chance prints collected by P.W. 15 tally with the fingerprints of the accused, when there is no evidence to prove that the fingerprints so compared by P.W. 14 with the chance prints are that of the accused, Ext. P-16 report or the evidence of P.W. 14 is of no use. It is therefore, argued that evidence on the identity of the fingerprint cannot be relied on to find the appellants guilty. It was pointed out that u/s 4 of Kerala Identification of Prisoners Act, fingerprint or foot print impressions of suspected accused could be collected and later compared, such prints could be token, only by a police officer as defined under clause (b) of Section 2 of the said Act and when there is no evidence to prove that P.W. 16 has collected such fingerprints, the comparison of fingerprints by P.W. 14 cannot be used as against the appellants. It was also argued that when there is no evidence to prove that fingerprints or palm prints of the accused were collected by a police officer as defined under the said Act, even if fingerprints were collected and sent to the Fingerprint Bureau, the report based on such comparison of prints cannot be used against the accused. Learned Senior counsel also argued that even though Kerala Identification of Prisoners Act, 1963 enables a Police Officer as defined therein to collect the fingerprints and foot print impressions, it does not authorize collection of palm prints and therefore, based on the report of comparison of palm prints collected from the second accused, based on Ext. P-16 report or the evidence of P.W. 14, the accused cannot be found guilty.

Learned Public Prosecutor pointed out that the Police Officer as defined u/s 2(b) of Identification of Prisoners Act, includes an Officer in-charge of the Police Station and he is authorised to take measurements as provided u/s 4, which includes taking fingerprints impressions and foot print impressions which include palm prints and though P.W. 16 omitted to depose that fingerprints or the palm prints of the accused were collected and forwarded after their arrest, it was not disputed and in such circumstances, Ext. P-16 report cannot be ignored and Ext. P-16 conclusively establish that it was the accused who committed the murder when the chance fingerprints of the accused in the house of the deceased could not in any other way explained by the appellants.

As stated earlier Ext. P-16 and the evidence of P.W. 14 based on comparison of the chance prints collected by P.W. 14 from the scene of occurrence is very valuable piece of evidence. But the question is whether there is evidence to prove that what was compared by P.W. 14 are the fingerprints or the palm prints of the accused collected after their arrest. True, there is no evidence as such to prove that P.W. 16 after the arrest of the accused had taken either their fingerprints or palm prints. It is also true that Ext. P-16 report submitted by P.W. 14 establish that to compare with the chance fingerprints collected from the scene of occurrence, specimen fingerprints and palm prints of the accused were forwarded to the Fingerprint Bureau and they were compared by P.W. 14 and furnished Ext. P-16 report. But there is complete lack of evidence as to who collected the fingerprints and palm prints and when they were collected. Argument of the learned Senior Counsel is that when there is no evidence that fact, the lacuna cannot be filled even by adducing additional evidence at the appellate stage or remanding the case to enable the prosecution to re-call and examine the witnesses, as it would be filling up the lacuna which would definitely prejudice the accused. Learned Public Prosecutor pointed out that the case diary reveals that fingerprints were collected during investigation and copies of the fingerprints are available in the case diary and by omission this fact was omitted to be brought on record at the time of examination of P.W. 16 and the omission on the part of the prosecution is not a lacuna which cannot be filled up, as there is distinction between the lacuna of the prosecution and prosecutor. Learned Public Prosecutor relied on the decision of the Division Bench of this Court in Raghunathan Vs. State of Kerala, . Learned Public Prosecutor argued that even if there is no evidence as to who collected the fingerprints, on that ground the accused is not entitled to be acquitted as the learned Additional Sessions Judge should have invoked the powers u/s 311 of the Code of Criminal Procedure and brought out the details of collection of fingerprints examined by P.W. 14 and in such circumstances, P.W. 16 is to be recalled and examined or the case is to be remanded to the Sessions Court for re-calling and examining P.W. 16 and if it is brought out that the specimen fingerprints were collected by any other Police Officer, if not P.W. 16, to examine him also. Learned Senior Counsel opposed the submission submitting that if it is permitted, it would be permitting to fill up the lacuna which would prejudice the accused, and if the fingerprints were collected by a Police Officer below the rank of a Sub Inspector, like P.W. 11, who is only an Assistant Sub Inspector, who is below the rank of a Sub Inspector, the fingerprints so collected cannot be used for any purpose and hence no purpose will be served by remanding the case.

A learned Single Judge of this Court (as His Lordship then was) had occasion to consider the distinction between lacuna in the prosecution case and the omission of Public Prosecutor to let in material evidence in Suja P. Chacko Vs. State of Kerala . It was held:

Whenever a court is inclined to exercise powers under S. 311 of the Code or S. 165 of the Evidence Act the objection very often taken is that such exercise would cause ''filling the lacuna'' in the prosecution case or the defence case. If any new material is to come on record, can it be forestalled, on the premise that it would fill up the lacuna in the prosecution or defence? Lacuna in the prosecution is not to be understood as corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fallout of an error committed while adducing evidence is not what judicial pronouncements termed as ''lacuna'' in the case. ''To err is human'' is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to foreclose such attempt on the premise that it would fill up a lacuna in the case. Lacuna in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix, the advantage of which should normally go to the accused in the criminal trial. If such an advantage for the accused is allowed to be watered down or diluted, the advantage would get transposed into a disadvantage for the defence and consequently serious prejudice would be caused to the accused. The court, while exercising powers under S. 311 of the Code or S. 165 of the Evidence Act should guard against causing such prejudice to the defence or to the prosecution. But that is no reason to pre-empt the right of a party to correct any error or to adduce proper and relevant evidence which through any inadvertence one party would have missed or overlooked at an earlier stage.

Honourable Supreme Court in Mohanlal Shamji Soni Vs. Union of India and another, , cautioned that due care should be taken by the court while exercising the power u/s 311 of Code of Criminal Procedure as it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.

Supreme Court in Ram Chander Vs. State of Haryana, considered this aspect and held:

The adversary system of trial being what it is there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referred or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witness in order to ascertain the truth.

Following this dictum this Court in K.C. Sebastian Vs. The Food Inspector and Another, held:

The criticism that the court is trying to fill up lacuna in prosecution evidence when it exercises powers under the Section is partly due to an obsolete thinking about the role of the court in adversary system of trial. It was considered at least in some quarters that the function of a court is merely to judge the cause after silently observing or watching the performance by the rival sides in a ease. Gone are the days when court was supposed to be only a silent umpire. In a criminal court mainly three functionaries are involved in the endeavour to reach the final goal, namely, dispensation of criminal justice Prosecution and the defence are two of them and the court is the third important (if not the most important) functionary. The court has to play a dynamic role in the endeavour to reach the final goal. Of course it must be done by keeping within the bounds provided by law. The language used in S. 165 of the Evidence Act, and the powers envisaged in S. 311 of the Code of Criminal Procedure are sufficiently eloquent informants of the dynamic role which the court is expected to function in a trial.

Learned Senior counsel relied on the decision of the Supreme Court in State of Rajasthan Vs. Daulat Ram, and argued that Honourable Supreme Court did not permit introduction of new materials by examining the witnesses who should have been examined at the early stage to prove that opium which was seized were properly sealed during the period when the opium was in the possession of those persons, holding that granting permission to examine those persons would fill up the gaps or lacuna left at the trial and it squarely applies to the present case also.

We find from the evidence that P.W. 14 when examined, deposed that he had collected the chance fingerprints from the scene of occurrence and later compared them with the fingerprints received at the fingerprint Bureau and forwarded by the Investigating Officer as that of the accused. Ext. P-16 report corroborates that evidence. When P.W., 16 the Investigating Officer was examined, no question was put in chief examination by the Public Prosecutor regarding the collection of fingerprints or palm prints from the accused, even though evidence has already been let in by P.W. 16 that specimen fingerprints and palm prints were forwarded to fingerprint Bureau by the Investigating Officer. It was clearly an omission on the part of the Public Prosecutor. As pointed out earlier, the learned Sessions Judge can never be a silent spectator during recording the evidence and when it was found that the Prosecutor omitted to put the relevant question it was the bounden duty of the learned Sessions Judge to put the said question to P.W. 16, invoking the power provided u/s 165 of the Indian Evidence Act. Even if it was omitted to be invoked at that stage, learned Sessions Judge had ample power u/s 311 to re-call and examine P.W. 16 or if it is revealed on such examination that the fingerprints and palm prints were collected by any other Police Officer, to summon him and examine him to clear the ambiguity. Unfortunately, learned Sessions Judge also omitted to act properly and as a result, there is no evidence on record as to who collected, the fingerprints and the palm prints which were forwarded to the Fingerprint Bureau and later examined and compared by P.W. 14 with the chance prints collected from the scene of occurrence.

The question is whether this omission is a lacuna in the prosecution case or an omission on the part of the Prosecutor. If it is a lacuna in the prosecution case, it cannot be allowed to be filled up either by invoking the power u/s 311 or by remanding the case back to the Sessions Court. But as stated earlier it is clearly an omission on the part of the Public Prosecutor, as they are materials which should have been let in during the evidence. If that be so, we find it not in the interest of justice to treat the omission of the Prosecutor as a lacuna in the prosecution case and to grant benefit to the accused by acquitting them on that ground. A fair trial warrants the entire material evidence produced before the Court and to appreciate the same granting opportunity to the defence to challenge those materials and then the Court is to decide the case. When the Prosecutor omitted to bring on record the necessary materials, the Court is bound to invoke the power provided u/s 311 of Code of Criminal Procedure and get the materials brought on record. It cannot be said to be prejudicial to the accused. Considering the fact that if recalling and examining P.W. 16, it may be necessary to examine some other Police Officer, if he had collected the specimen fingerprints and palm prints, as learned Public Prosecutor submitted that it was collected by P.W. 11, the Assistant Sub Inspector on the instructions of P.W. 16, we find that it is in the interest of justice to remand the case back to the trial Court, instead of letting additional evidence before this Court so that both sides will get sufficient opportunities.

Learned Senior Counsel submitted that P.W. 11 is not a Police Officer as defined u/s 2(b) of the Kerala Identification of Prisoners Act, 1963. Hence that question also is necessarily to be considered by the learned Sessions Judge. In view of the said findings we find it not necessary to enter a finding on the reliability of the evidence of P.Ws. 2 and 3 on the identification of the accused or the reliability of recovery of M.O. 1 under Ext. P-4 recovery mahazar at this stage. In view of the findings, the conviction of the accused in S.C. 760/2005 by Additional Sessions Court, Thrissur is set aside. S.C. 760/2005 is remanded to Additional Sessions Court for fresh disposal. Learned Additional Sessions Judge shall recall P.W. 16 invoking the powers under Sections 311 of the Code of Criminal Procedure and shall permit the Prosecutor to let in the material evidence regarding the collection of specimen fingerprints and palm prints, which were examined by P.W. 14 at the fingerprint Bureau, evidenced by Ext. P-16 report. If on such examination it is brought out that, it was not P.W. 16 who personally collected the said fingerprints and the palm prints, but P.W. 11 or any other Police Officer, learned Additional Sessions Judge shall also recall P.W. 11 or summon and examine such Police Officer. In that event, the question whether P.W. 11 or the witness so examined is a Police Officer competent to take fingerprint or palm print, as provided under Kerala Identification of Prisoners Act, is also to be considered by the learned Additional Sessions Judge. The accused is also entitled to raise all other contentions available, including the legality of collecting palm prints. Learned Additional Sessions Judge shall dispose the case, without delay and in any event, within three months from the date of receipt of the records. Sent back the records immediately.