Judgment :- Padmanabhan Nair, J. The Death Sentence Reference is made by the Additional District & Sessions Judge (Adhoc) Fast Track, Kalpetta under Section 366(1) of the Code of Criminal Procedure for confirmation of the capital sentence imposed on the second and fourth accused in Sessions Case No.317 of 1999 on the file of that Court. They were found guilty of the offences punishable under Sections 364, 302 and 392 read with Section 34 of Indian Penal Code, convicted and sentenced to death for the offence under Section 302 read with Section 34 I.P.C. For the offences punishable under Sections 364 and 392 I.P.C. they were sentenced to undergo rigorous imprisonment for 10 years each. It was further ordered that if the fine is realized, an amount of Rs.1,00,000/= should be paid to the legal representatives of the deceased as compensation under Section 357(3) of the Code of Criminal Procedure. Set off was also allowed. 2. Crl.Appeal No.37 of 2005 is filed by the above said accused challenging the conviction and sentence imposed on them. PROSECUTION VERSION 3. Deceased Kuttan @ Manojkumar, a taxi driver by profession, was the brother-in-law of P.W.3 (Vijayakumar). P.W.3 purchased a new jeep on 28-9-1995 from P.W.39 Baby under Ext.P4 agreement. P.W.39 Baby under Ext.P4 agreement. P.W.39 had purchased the jeep from P.W.38, Paran, the Original owner under Ext.P24 agreement dated 17-9-1995. On 12-10-1995 deceased Manojkumar went to the house of P.W.3 and requested him to give the jeep for three days promising to return the jeep on the evening of 15-10-1995 after his trip to Mahe for attending the annual festival of Mahe Church which was going on at that time. P.W.3 permitted Manojkumar to take the jeep and accordingly he took the jeep. Manojkumar owned two other jeeps.e used to park his vehicles at the Taxi stand at Ambalavayal. On 15.10.1995 also he reached the stand with the jeep belonging to P.W.3 and parked the same there. At about 4.30 P.M. on that day, the jeep was hired by accused 2 to 4 for going to Thamarassery. Manojkumar went to Thamarassery with those persons. Thereafter nobody had seen Manojkumar alive. According to prosecution, on the way to Thamarassery, A1 also boarded into the jeep from Koodathayi. They went to Kakkayam. They started their return journey at about 9.30 p.m. in the night. Manojkumar went to Thamarassery with those persons. Thereafter nobody had seen Manojkumar alive. According to prosecution, on the way to Thamarassery, A1 also boarded into the jeep from Koodathayi. They went to Kakkayam. They started their return journey at about 9.30 p.m. in the night. When they reached a place by name “Kariyathan Para” the accused murdered Manojkumar by strangulating and smothering him. They removed the pant and shirt worn by the deceased and had stolen the purse with money and the Watch belonging to the deceased. Thereafter they dumped the dead body into Koodathayi River from the Koodathayi Bridge and took the jeep to Thopramkudy at Idukki for the purpose of selling the same. 4. On 16.10.1995, P.W.1 (Sureshbabu), the younger brother of Manojkumar went to Ambalavayal Town and made enquiries about Manojkumar P.W.2 (Purushothaman) told Sureshbabu that Manojkumar had gone to Mahe and he will be coming back on the 16th. On 16th also Manojkumar did not return. On 17-10-1995 P.W.1 and others went to the house of P.W.3 and enquired about Manojkumar. P.W.3 informed them that Manojkumar did not return his jeep on 15-10-1995 and he had not seen Manojkumar after 12.10.1995. P.W.1 and others came to the house of P.W.9, the elder brother-in-law of Manojkumar, and informed him that Manojkumar was missing. They went to Ambalavayal Police Station. P.W.1 gave Ext.P1 First Information Statement. P.W.48, the S.I. on duty recorded Ext.P1 and registered Ext.P1(a) F.I.R.No.162 of 1995 under the caption “man missing”. 5. On 16.10.1995 in the afternoon, P.W.10 and others saw a dead body of an unidentified youth drifting in the Koodathayi River near the Koodathayi Bridge under the jurisdiction of Thamarassery Police Station. Except for a brief (shuddy) found on the dead body, it was naked. P.W.10 and one Baby retrieved the dead body from the river, placed it on the shore. P.W.10 went to Thamarassery Police Station and gave Exhibit P9 F.I. Statement before C.W.65 (A.S.I.). C.W.65 recorded the same and registered Exhibit P9(a) F.I.R.No.322 of 1995 under the caption “unnatural death” at 4.30 p.m. on 16-10-1995. Thereafter, C.W.65 conducted inquest on the unidentified dead body between 5.00 p.m. and 7.00 p.m. on that day. Thereafter the dead body was taken to the Medical College Hospital, Kozhikode for post mortem. C.W.65 recorded the same and registered Exhibit P9(a) F.I.R.No.322 of 1995 under the caption “unnatural death” at 4.30 p.m. on 16-10-1995. Thereafter, C.W.65 conducted inquest on the unidentified dead body between 5.00 p.m. and 7.00 p.m. on that day. Thereafter the dead body was taken to the Medical College Hospital, Kozhikode for post mortem. P.W.54, the Associate Professor of Forensic Medicine conducted autopsy on the dead body between 1.00 p.m. and 3.00 p.m. on 17.10.1995 and issued Exhibit P53 post-mortem certificate. Thereafter the dead body was kept in the cold room of the mortuary for the purpose of identification of the same. 6. On 17.10.1995 a news item appeared in the Malayala Manorama News Paper that an unidentified body of a youth was found floating in the river near the Koodathayi bridge. Seeing the news item P.W.2 (Purushothaman), Pavithran and Madhu went to the Medical College Hospital, Kozhikode and saw the dead body kept in the mortuary. The deadbody was that of Manojkumar. They came back and informed P.W.3, P.W.9 and others. All of them went back to the Medical College Hospital, Kozhikode and saw the dead body. P.W.3 and 9 confirmed that it was the dead body of Manojkumar. P.W.9 stayed back and others went back to Ambalavayal. On 18.10.1995, P.W.48, the Sub Inspector of Police, Thamarassery, took over the investigation of Crime No.322 of 1995. In the Forenoon of 18.10.1995, P.W.9 went to Thamarassery Police Station and gave statement before P.W.48 that the dead body kept in the mortuary of Medical College Hospital, Kozhikode in Crime No.322 of 1995. In the Forenoon of 18-10-1995, P.W.9 when to Thamarassery Police Station and gave statement before P.W.48 that the dead body kept in the mortuary of Medical College Hospital, Kozhikode in Crime No.322 of 1995 of that Police Station was that of Manojkumar. On getting that information, P.W.48 went to the Medical College Hospital and questioned P.W.54, the Doctor who conducted the post mortem examination. Thereafter he filed the report before the Judicial First Class Magistrate, Thamarassery to add Sections 302, 392 read with section 34 I.P.C. Since the Ambalavayal Police had already registered Crime No.162 of 1995 regarding the missing of Manojkumar, he forwarded the Case Diary of Crime No.322 of 1995 of Thamarassery Police Station to the S.H.O., Ambalavayal. Further investigation of the case was conducted by P.W.53, the Circle Inspector of Police, Sultan Bathery. Further investigation of the case was conducted by P.W.53, the Circle Inspector of Police, Sultan Bathery. He filed a report adding Sections 364, 302, 392 read with Section 34 I.P.C. after deleting the caption “man missing”. He filed a report before the Judicial First Class Magistrate, Thamarassery to transfer the records to Judicial First Class Magistrate, Sulthan Bathery and conducted major part of the investigation of the case. 7. In the morning of 16.10.1995, a jeep was found parked in the courtyard of the house of P.W.12 Reji Joseph at Vathikudi Panchayat near Thopramkudi. Nobody was residing in this house and P.W.12 used to visit the house occasionally. He was residing in Kulamavu at Idukki. At 6.00 p.m. on that day, he came to Thopramkudy and found the jeep parked in the courtyard of his house. P.W.18, a broker came and saw the jeep. He noted two numbers. It was seen that originally the number KL-12/5879 was written in the number plate. That number was obliterated using black paint and a number ‘KL-11/7022’ was written on a piece of paper and pasted in the front glass of the vehicle. P.W.18 became suspicious and informed C.W.65 about the jeep. At about 9.00 p.m. police came and took the jeep to the Police Station. Subsequent investigation revealed that that was the jeep in which deceased Manojkumar went to Thamarassery with A2 to A4 from the Ambalavayal taxi stand. The jeep was taken into custody by police. The same was seized and the number plate on the rear side was sent for forensic examination. P.W.53 arrested A1, A2 and A4. In pursuance of the information furnished by them, some of the material objects were also seized. A3 could not be arrested as he was absconding. P.W.51 verified the investigation conducted by P.W.53 and filed the final report before the learned Magistrate. The learned Magistrate took cognizance on the final report and issued summons to all the four accused. The 3rd accused did not appear before the learned Magistrate. The case as against A3 was split up and numbered as C.P.No.118 of 1999. The case as against A1, A2 and A4 was committed to the Court of Sessions. The learned Sessions Judge took the case to file and numbered as S.C.317 of 1999. At that stage the first accused also absconded. The case as against A3 was split up and numbered as C.P.No.118 of 1999. The case as against A1, A2 and A4 was committed to the Court of Sessions. The learned Sessions Judge took the case to file and numbered as S.C.317 of 1999. At that stage the first accused also absconded. So the case as against him was split up and included in the list of Long Pending Cases as L.P.C.3 of 2003. The case as against A2 and A4 was made over to the Additional Sessions Court (Ad hoc) Fast Track for trial and disposal. 8. When A2 and A4 appeared before the learned Sessions Judge, charges under sections 364, 302, 392 read with section 34 I.P.C. were framed against them. The charges were read over and explained to them. They understood the same and pleaded not guilty. EVIDENCE 9. On the side of prosecution, P.Ws.1 to 54 were examined. Exts.P1 to P53 proved and marked; M.Os.1 to 12 identified. 10. P.W.1 is the brother of deceased Manojkumar. He gave Ext.P1 F.I. Statement. He also identified the clothes and watch worn by the deceased. P.W.2 along with his brother were conducting a hotel by name “Sajesh” at Ambalavayal. P.W.2 was examined to prove that at about 4.30 p.m. on 15-10-1995 the deceased came to “Sajesh Hotel” and took a cup of tea and left the place informing P.W.2 that he has got a trip to Thamarassery and after dropping the passengers at Thamarassery he will go to Mahe to attend the annual festival of Mahe Church and will come back only thereafter. 11. P.W.3 is the brother-in-law of deceased Manojkumar. He is the owner of the stolen jeep. He was examined to prove the ownership of the jeep and the identification of the dead body and M.O.5 bath towel used for strangulating the deceased. P.Ws.4 and 5 were drivers of two taxi jeeps which were also usually parked in the taxi stand at Ambalavayal. P.W.4 was examined to prove that on the morning of 15-10-1995 he had gone to Mahe Church and on his way back to Ambalavayal, he saw deceased Manojkumar driving a jeep at 6.15 p.m. on that day. Both of them stopped their vehicles and exchanged pleasantries. P.W.4 saw A2 to A4. All of them were sitting in the front seat of the jeep. He supported the prosecution case. 12. Both of them stopped their vehicles and exchanged pleasantries. P.W.4 saw A2 to A4. All of them were sitting in the front seat of the jeep. He supported the prosecution case. 12. P.W.5 was examined to prove that A2 to A4 approached him first for hiring the taxi. Though initially P.W.5 agreed to undertake the trip, subsequently he backed out as they were total strangers. Thereafter A2 to A4 hired the jeep driven by deceased Manojkumar. He identified A2 and A4. P.W.6 was the regular driver of P.W.3. He identified M.O.5 bath towel. 13. P.W.7 is the paternal uncle of A.1 He was examined to prove that on the previous day of Mahanavami at about 10.30 p.m. the first accused along with three others came to his house at Koodathayi and the first accused and the 4th accused stayed in his house in the night and they left in the morning. He was further examined to prove that A1 and A4 came to his house on 15-10-1995. He supports the prosecution case. P.W.8 is a cleaner of a private stage carriage bus by name J.B.T. He was examined to prove that he saw the jeep driven by deceased Manojkumar parked in front of the quarters of Kuttan alias Chandran, who is the son of P.W.7 and at that time A1 to A4 were with deceased Manojkumar. He supports the prosecution case. 14. P.W.9 is another brother-in-law of the deceased. He had married the sister of the wife of P.W.3. He was examined to prove the identity of the dead body of the deceased Manojkumar. He also identified M.O.3 watch. He supports the prosecution case. 15. P.W.10 is the person who retrieved the dead body of Manojkumar which was found floating in Koodathayi river near Koodathayi bridge at about 3 p.m. on 16-10-1995. P.W.11 is the owner of a shop in front of which deceased Manojkumar used to park his vehicle. 16. P.W.12 is the owner of the house bearing No.10/500 of Vathikudi Panchayat. The stolen jeep was taken to Vathikudi and parked in the courtyard of the house of P.W.12. He was examined to prove that he saw the jeep parked in the courtyard of his house and the police came and took the same to the police station during the night of 16-10-1995. P.W.13 and P.W.14 are the neighbours of P.W.12. The stolen jeep was taken to Vathikudi and parked in the courtyard of the house of P.W.12. He was examined to prove that he saw the jeep parked in the courtyard of his house and the police came and took the same to the police station during the night of 16-10-1995. P.W.13 and P.W.14 are the neighbours of P.W.12. They were examined to prove that they had seen the stolen jeep parked in the courtyard of the house of P.W.12. P.W.15 is another person who saw the stolen jeep parked in the courtyard of P.W.12. He had noted down the two numbers written in the jeep and handed over the same to the C.I. of Police Sulthan Batheri. He supports the prosecution case. 17. P.W.16 is the son of the first accused. He was examined to prove that he purchased the paint used for covering the original number written in the number plate. He admitted that he purchased paint from the shop in which P.W.17 was the salesman. P.W.17 was examined to prove that P.W.16 purchased two sample tins of paint, one black and another white, each containing 50 ml. And a brush. He supports the prosecution case. 18. P.W.18 is a jeep driver residing at Thoprakmkudi. He was examined to prove that the first accused approached him for the sale of the stolen jeep either as a vehicle or as scrap after dismantling the same. He identified A4. He supports the prosecution case. P.W.19 is the owner of a jeep bearing Registration No.KRM 1432, which was purchased by the second accused for a consideration of Rs.1,50,000/=. He was examined to show that the second accused paid only an amount of Rs.15,000/= towards the sale consideration of that jeep and the balance amount was not paid. He supports the prosecution case. 19. P.W.20 is a hair dresser. He was the regular hair dresser of A4. He was examined to prove that A4 James is a person who always keeps a beard and immediately after the incident, A4 approached him for a clean shave. P.W.21 is a workshop owner. He was examined to prove that A4 brought a jeep in 1995 for repairs. He carried out the repairs and on the next day, A4 came there and took away the jeep after paying the repair charges. 20. P.W.22 is residing near the Koodathayi bridge. P.W.21 is a workshop owner. He was examined to prove that A4 brought a jeep in 1995 for repairs. He carried out the repairs and on the next day, A4 came there and took away the jeep after paying the repair charges. 20. P.W.22 is residing near the Koodathayi bridge. He was examined to prove that in the night of 15-10-1995, he heard some heavy object being dropped into Koodathayi River. He saw a jeep being driven away to Thamarasseri side. On the next day he saw the dead body of Manojkumar. He supports the prosecution case P.W.23 and P.W.24 are attestors to Ext.P13 mahazar under which M.O.3 watch was recovered from the house of the second accused. P.W.23 turned hostile and did not support the prosecution case. P.W.24 supported his prosecution case. 21. P.W.25 is the father of the second accused. He was examined to prove the seizure of M.O.3 watch and also search conducted in the house of the second accused. He turned hostile and did not support the prosecution case. P.W.26 is the landlord of the second accused. He was examined to prove that after the date of incident, A2 did not open the ration shop to which he was the licensee, which prompted the customers to protest. He turned hostile and did not support the prosecution case. 22. P.W.27 is an attestor to Ext.P14 mahazar under which M.O.7 pant worn by the 4th accused was seized. He is an attestor to Ext.P15 mahazar under which M.O.8 white dothi was seized. P.W.28 and P.W.29 are attestors to Ext.P16 search list. They turned hostile and did not support the prosecution case. P.W.30 is an attestor to Ext.P17 mahazar under which M.O.5 bath towel was seized in pursuance of the information furnished by the first accused. P.W.31 was examined to prove that he saw the first accused on the evening of 15-10-1995. P.W.32 is an attestor to Ext.P18 mahazar under which M.O.1 shirt and M.O.2 pant were seized. P.W.33 is an attestor to Ext.P19 observation mahazar. P.W.34 is an attestor to Ext.P20 inquest conducted on the dead body of Manojkumar. He proved the same. P.W.35 is an attestor to Ext.P22 mahazar under which M.O.9 shirt of A1 was seized. He proved the same. P.W.36 was an attestor to Ext.P10 mahazar under which the number plate fitted on the rear side of the jeep was seized. He proved the same. He proved the same. P.W.35 is an attestor to Ext.P22 mahazar under which M.O.9 shirt of A1 was seized. He proved the same. P.W.36 was an attestor to Ext.P10 mahazar under which the number plate fitted on the rear side of the jeep was seized. He proved the same. P.W.37 is a tea shop owner. He was examined to prove that he saw the accused. P.W.38 is the original owner of the stolen jeep. He purchased the jeep from the show room and sold it to P.W.39 under Ext.P24 agreement. P.W.39 sold the same to P.W.3 under Ext.P4 agreement. P.W.40 is the owner of the shop selling watches at Koopady. It was he who sold M.O.3 watch to P.W.9, who, in turn, gifted the same to deceased Manojkumar. P.W.40 proved Ext.P7 guarantee card and M.O.3 watch as the watch sold under Ext.P7 from his shop. 23. P.W.41 was working as a writer in the office of the Dy.S.P. Mananthavady at the relevant period. He took A2 and A4 from the office of Sy. S.P. to the office of C.I. of Police, Sulthan Bathery at about 10.45 p.m. on 21.10.1995. 24. P.W.42 was the Munsif-Magistrate, Manathavady, who conducted the Test Identification Parade of A2 to A4 and filed Ext.P26 report. He proved the same. P.W.43 was the Civil Surgeon attached to the Taluk Hospital, Sulthan Bathery. He collected the hair samples from A1, A2 and A4. P.W.44 is the Scientific Assistant who collected some hair found under the rubber mat in the front cabin of the stolen jeep and sent it for detailed examination along with the samples of hair collected from A1, A2 and A4 by P.W.43. He proved Ext.P30. P.W.45 was the A.S.I. of Murikkassery Police Station who took the jeep from the courtyard of the house of P.W.12 to the police station. P.W.46 was the Sub Inspector of Murikkaseri Police Station. He is an attestor to Exts.P32 and P.33 mahazars. He proved the same. P.W.47 is the Village Officer of Ambalavayal who prepared Ext.P34 plan of the taxi stand at Ambalavayal. P.W.48 was the Sub Inspector of Police, Thamarassery, who conducted a part of investigation in Crime No.322 of 1995 of Thamarassery Police Station. He transmitted the C.D. file of that case to S.H.O. Ambalavayal Police Station to be incorporated in Crime No.162 of 1995 of that police station. P.W.48 was the Sub Inspector of Police, Thamarassery, who conducted a part of investigation in Crime No.322 of 1995 of Thamarassery Police Station. He transmitted the C.D. file of that case to S.H.O. Ambalavayal Police Station to be incorporated in Crime No.162 of 1995 of that police station. P.W.49 is the finger print expert who issued Ext.P37 report. He proved the same. 25. P.W.50 is the wife of the first accused. He was examined to prove that after committing theft of the jeep, the first accused took the same to his house. She turned hostile and did not support the prosecution case. 26. P.W.51 is the Dy.S.P. C.B.C.I.D. Kozhikode, who verified the investigation conducted by P.W.53 and filed the final report. P.W.52 is the person residing at Thopramkudi. He was examined to prove that the first accused owed him an amount of Rs.3,500/= and sought his help for selling the jeep. He supported the prosecution case. P.W.53 was the Circle Inspector of Police who conducted the investigation, arrested A1, A2 and A4 and seized the material objects. P.W.54 was the Associate Professor of Forensic Medicine, Medical College Hospital, Kozhikode who conducted autopsy on the dead body of Manojkumar and issued Ext.P53 post mortem certificate. 27. After the prosecution evidence was over, the accused were questioned under Section 313 of the Code of Criminal Procedure. They denied all the incriminating circumstances brought against them and filed written statements. The second accused had stated that he had not hired the jeep driven by Manojkumar. He has never seen the other accused in the case. No watch was recovered from his house. He had not produced any articles before the police. He was arrested from his shop in the morning of 19-10-1995. He was shown to the witnesses. There is nothing to show that autopsy was conducted on the dead body alleged to have been found in the Koodathayi river. The brief found on the dead body at the time of inquest was not produced in court. The 4th accused also filed a similar statement. Since no grounds were made out to acquit the accused under Section 232 Crl.P.C. they were called upon to enter on their defence. No defence evidence was adduced. The learned Sessions Judge found the appellants guilty of the offences punishable under Sections 364, 302, 392 read with Section 34 I.P.C. convicted and sentenced them as aforesaid. Since no grounds were made out to acquit the accused under Section 232 Crl.P.C. they were called upon to enter on their defence. No defence evidence was adduced. The learned Sessions Judge found the appellants guilty of the offences punishable under Sections 364, 302, 392 read with Section 34 I.P.C. convicted and sentenced them as aforesaid. Those conviction and sentence are challenged in Crl.Appeal No.37 of 2005. Since capital sentence was imposed on the accused, the learned Sessions Judge referred the matter to this Court under Section 366 Crl.P.C. for confirmation. Both these matters were heard together and are being disposed of by this common judgment. 28. The following points arise for consideration in this case: 1. Whether the finding of the learned Sessions Judge that Manojkumar died of the homicidal injuries sustained by him at or about 10.30 p.m. on 15-10-1995 is correct? 2. Whether the finding of the learned Sessions Judge that the appellants and the other accused kidnapped deceased Manojkumar is correct? 3. Whether the finding of the learned Sessions Judge that the appellants committed the murder of Manojkumar with intention to commit the robbery of jeep bearing Registration No.KL-12 5879 is correct? 4. Whether the sentence imposed is legal and proper? POINT NO.1 CAUSE OF DEATH AND PROOF OF CORPUS DELICTI 29. On 16-10-1995 persons residing near Koodathayi bridge across the Koodathayi River saw a dead body drifting in the river. P.W.10 and others retrieved the body and took the same to the shore. P.W.10 gave Ext.P9 First Information Statement before C.W.65 the A.S.I. of Thamarassery Police Station. C.W.65 conducted Ext.P20 inquest on the dead body. The body was removed to the Medical College Hospital, Kozhikode for conducting post mortem examination. The post mortem examination was conducted by P.W.54 who issued Ext.P53 post mortem certificate. In Exhibit P53 the following injuries were noted:- “C. Injuries (Antimortem) 1. Abrasion 1 x 0.8 cm. over the root of nose. 2. Three abrasions 0.3 x 0.3 cm., 0.03 x 0.3 cm. and 0.1 x 0.1 cm. over the left ala of nose. 3. Crescentic abrasion 0.6 x 0.1 cm. over the tip of nose. 4. Abrasion 0.1 x 0.1 cm. over the right alas of nose. 5. Abrasion 0.4 x 0.3 cm. over the left side of face 2.5 cm below the inner angle of eye in the 10’ O clock position. 6. Abrasion 2 x 1.5 cm. 3. Crescentic abrasion 0.6 x 0.1 cm. over the tip of nose. 4. Abrasion 0.1 x 0.1 cm. over the right alas of nose. 5. Abrasion 0.4 x 0.3 cm. over the left side of face 2.5 cm below the inner angle of eye in the 10’ O clock position. 6. Abrasion 2 x 1.5 cm. over the left upper eye lid. 7. Contusion 0.6 x 0.6 x 0.1 cm. over the lower lip corresponding left incisors. 8. Abrasion 1 x 0.5 cm. over the upper tip corresponding to right upper incisor. 9. Pressure abrasion 34 cm. in length horizontal over the front, right side, back and outer aspect of left side of neck with a discontinuity of 7.5 cm. on the front and side of left side of neck. It was situated 7.5 cm below center of chin (2.5 cm broad), 4 cm. below right angle of law bone (3.5 cm broad), 8 cm below right ear lobule, 1.5 cm. below right mastoid process, (0.8 cm. broad), 11 cm. below occipital protruberance (1.8 cm. broad), 8 cm. below left mastoid process (1 cm broad), 8.5 cm. below left ear lobule (0.5 cm. broad). 10. Nine crescentic abrasions 0.5 x 0.2 cm., 0.2 x 0.1 cm., 1.5 x 0.1cm., 0.6 x 0.1 cm., 0.6 x 0.3 cm., 0.5 x 0.1 cm., 0.4 x 0.2 cm., 1.5 x 0.5 cm., placed over the left side of front of neck with their concavity directed downwards and over the area of discontinuity. 11. Abrasion 0.6 x 0.2 cm. over the outer aspect of left side of neck 12 cm. below the left ear lobule. 12. Abrasion 0.2 x 0.2 cm over the outer aspect of left side of neck 1.5 cm. below injury No.11. 13. Abrasion 0.3 x 0.3 cm over the left side of neck 1.5 cm. below ear lobule. 14. Three abrasions 2.5 x 0.5 cm., 6 x 1 cm. and 1.5 x 0.5 cm. vertical over the top and front of left shoulder placed parallel to each. 15. Abrasion 1.5 x 0.5 cm. over the tip of left shoulder. 16. Abrasion 0.5 x 0.5 cm. over the back of left elbow. 17. Abraded contusion 3.2 cm. over the left iliac foss. 18. Linear abrasion 10 x 0.5 cm. over the front of left foot and ankle in between to the II and III interdigital claft. 19. 15. Abrasion 1.5 x 0.5 cm. over the tip of left shoulder. 16. Abrasion 0.5 x 0.5 cm. over the back of left elbow. 17. Abraded contusion 3.2 cm. over the left iliac foss. 18. Linear abrasion 10 x 0.5 cm. over the front of left foot and ankle in between to the II and III interdigital claft. 19. Abrasion 1.5 x 1 cm. over the right iliac fossa. 20. Abrasion 2 x 1 cm. over the right shoulder 5 cm. below and in front of trip of shoulder. Flap dissection of the neck was done under bloodless field. Underneath the back aspect of sternohyoid mucles showed bruising 0.4 x 0.4 x 0.1 cm. The other neck muscles, Subcutaneous tissues, thyroid gland etc. showed uniform discolouration due to decomposition changes. The hyoid bone was in three pieces (normal) and the thyroid and criod cartilages carotids and vertebrae were normal.” P.W.54 opined that the death was due to strangulation and smothering. He also opined that injury Nos.1 to 8 can be caused during the act of smothering. During cross examination, the Doctor deposed that usually in strangulation cases eyelids will not be closed, but in this case the eyelids were closed. He further deposed that the body was in an early state of decomposition. He also deposed that individually the injuries were simple and there was no injury caused due to biting of fish. He also deposed that he does not remember to have been shown the photograph of the deceased. It is not his duty to show the dead body to any body and he had not noted any identification marks. During cross examination, he stated that in the post mortem report he had noted the colour of the brief found on the dead body as green. The oral evidence of P.W.53 coupled with Ext.P54 post mortem certificate properly proved establishes the fact that the person on whose dead body P.W.53 conducted post mortem died due to strangulation and smothering. The evidence also shows that it was a case of homicide. 30. Sri. G. Janardhana Kurup, learned Senior Counsel appearing for the appellants has argued that there is no legal or acceptable evidence to show that the dead body on which P.W.54 conducted the post-mortem was that of Manojkumar. The evidence also shows that it was a case of homicide. 30. Sri. G. Janardhana Kurup, learned Senior Counsel appearing for the appellants has argued that there is no legal or acceptable evidence to show that the dead body on which P.W.54 conducted the post-mortem was that of Manojkumar. It is argued that there is no material on record to show that Manojkumar, the brother-in-law of P.Ws.3 and 9 is dead. It is argued that P.W.54, the doctor had admitted that he had not noted many of the injuries noted in the inquest report in Exhibit P53 post-mortem certificate. He had not seen any injury caused due to fish bites on the dead body. It is also argued that P.W.54 had not noted the identification marks noted in Exhibit P20 inquest report at the time of conducting the post-mortem examination. It is also argued that Exhibit P20 inquest report shows that the Assistant Sub Inspector who conducted the inquest had found a blue coloured brief on the dead body. It is pointed out that the learned Sessions Judge himself had noted that that brief was not forwarded to the Court, though in Exhibit P20 there is a statement to the effect that the same was seized. It is also pointed out that in Exhibit P53 post mortem certificate the doctor had noted the presence of a green coloured cotton brief with name “KELTEX” on the dead body. It is also pointed out that the witnesses were not able to identify the dead body due to the changes occurred due to decomposition. They were not sure that the dead body was that of Manojkumar. The investigating officer had not resorted to any scientific method to establish the identity of the dead body. 31. In paragraph 6 of the judgment, the learned Sessions Judge had noted that Exhibit P20 inquest report shows that a blue coloured brief found in the body was taken into custody, but that brief was not produced before the Court. He had also noted that Exhibit P53 shows that at the time of post mortem examination a green coloured brief was found on the dead body. The observation made by the learned Sessions Judge that the brief was not produced before Court is not correct. He had also noted that Exhibit P53 shows that at the time of post mortem examination a green coloured brief was found on the dead body. The observation made by the learned Sessions Judge that the brief was not produced before Court is not correct. In Exhibit P20 inquest report C.W.65, the Assistant Sub Inspector of Police had stated that at the time of inquest he had found a blue coloured brief on the dead body. The inquest was conducted on the dead body of an unidentified man found floating on the river. In fact at that time the belief was that some workers in the rubber plantation might have accidently fallen into the river at the time of taking bath and drowned. In answer to question No.7 of Exhibit P20 the details of the injuries found on the dead body were given. It was also stated that the only property found on the dead body was a blue coloured brief and that was taken into custody. In Exhibit P53 post-mortem certificate the doctors while giving the general appearance had stated that the deceased was seen wearing a green coloured cotton brief with name “KELTEX”. 32. Thamarassery Police had registered the case under the caption “unnatural death”. So, the F.I.R., inquest report and the property seized at the time of inquest were forwarded to the Tahsildar, Kozhikode, who was discharging the functions of the Executive Magistrate. He received the F.I.R. etc. on 19.10.1995. Consequent to the alteration of the offence into Section 302 I.P.C., a report was filed before the Executive Magistrate to transmit the records and the property produced before him to the Judicial First Class Magistrate, Sulthan Bathery. The Executive Magistrate forwarded the First Information Report, inquest report and the brief seized at the time of inquest to the Judicial First Class Magistrate, Sulthan Bathery on 21.10.1995. The colour of the brief given in the property list was blue. On receipt of the same, the learned Magistrate directed the office to verify and receive the same. The office after verifying the article had noted the difference in colour and had made an endorsement that the colour of the brief appears to be green (MALAYALAM). The same was received and registered as item No.355/95 on 3.11.1995 in the Property Register. On receipt of the same, the learned Magistrate directed the office to verify and receive the same. The office after verifying the article had noted the difference in colour and had made an endorsement that the colour of the brief appears to be green (MALAYALAM). The same was received and registered as item No.355/95 on 3.11.1995 in the Property Register. The records further show that when the office brought to the notice of the Magistrate regarding the difference in colour, the learned Magistrate called for the explanation of the Executive Magistrate. At the time of committal of the case, the learned Magistrate forwarded the properties produced by the investigating officer and also the one received from the Executive Magistrate to the Sessions Court. The first item in the 2nd list was PR.355/95 of Ambalavayal Police Station Crime No.162/95. The description of the property was one blue coloured brief. The properties including this brief were received in Sessions Court. In the original list of properties kept in the case records of the Sessions Court, the Sheristadar made an endorsement to the effect that the entire properties in Crime No.162 of 1995 of Ambalavayal Police station were received and entered as PR.No.5/02 of the Sessions Court, Kalpeta. After making over the case to the Additional Sessions Court, the properties were registered as PR.13/04 in that Court. So, it is clear that the brief found on the dead body was seized by C.W.65 and produced before the Executive Magistrate. Subsequently it was received in the Court. If the learned Sessions Judge had verified the property list, he himself could have found out that the brief was received in that Court and the same was available in that Court. It is true that there was some confusion regarding the colour of the brief. In Ext.P20 the colour of brief was stated as blue. In the post mortem certificate the doctor has noted that a green colured cotton brief was found on the dead body. C.W.65, who conducted inquest and seized the brief, was not examined as he was stated to be suffering from illness. The inquest was conducted between 5.00 p.m. and 7.00 p.m. on 16.10.1995 at the bank of the river where the dead body was found. Probably, at that point of time the A.S.I. was not able to obtain any other cloth to cover the dead body. The inquest was conducted between 5.00 p.m. and 7.00 p.m. on 16.10.1995 at the bank of the river where the dead body was found. Probably, at that point of time the A.S.I. was not able to obtain any other cloth to cover the dead body. So, as a mark of respect to the dead instead of sending a fully naked body to the hospital he may not have removed the brief and the same might have been removed only after the post mortem examination. Since the brief found on the dead body and seized at the time of inquest was forwarded to the Court immediately, there is no merit in the argument that the dead body on which P.W.54 conducted post mortem examination was not the dead body found in Koodathayi River on that ground. 33. It is argued that the doctor who conducted the post mortem examination did not find many of the injuries noted by C.W.65 in Exhibit P20 inquest report. While giving the description of the dead body in Column No.7 of the report, C.W.65 had not noted any injury due to biting of fish. In Exhibit P20, two identification marks were noted. One is a black mole on the right side of forehead above the eyebrow. The second mark was a black mole on the back of shoulder. In Exhibit P54 these two identification marks noted in Exhibit P20 were not noted. In the post mortem certificate the doctor had noted a scar on the right knee as identification mark. The doctor who conducted autopsy had deposed that staff will be there in the mortuary for the custody of the dead body. Doctors will not usually open the mortuary during odd hours. He had also stated that no duty is cast upon the doctor to show the dead body to anybody. In Exhibit P20, C.W.65 had stated the dead body was entrusted with P.C.5162 at 7.00 p.m. on 16.10.1995 to be taken to the Medical College Hospital and handover the same to the Forensic Professor of Medical College. It was also stated that since at the time of inquest the identity of the dead body was not revealed, a report was prepared to make arrangements to keep the dead body in the mortuary and that report was also entrusted with P.C.5162. It was also stated that since at the time of inquest the identity of the dead body was not revealed, a report was prepared to make arrangements to keep the dead body in the mortuary and that report was also entrusted with P.C.5162. It was also stated that necessary instructions were given to P.C. 5162 to take further steps in the matter. Exhibit P53 post mortem report shows that P.W.54 saw the body first at 1.00 p.m. and at that time the dead body was in charge of P.C.5162. It was also stated that P.C.5162 identified the same. It was also noted that the dead body on which P.W.54 conducted post mortem was that of the body involved in Crime No.322/95 of Thamarassery Police Station. So, the evidence on record shows that P.W.54 conducted the post mortem examination on the dead body brought by P.C. 5162 from the banks of Koodathayi River. 34. It is argued that there is difference in the injuries noted in Exhibits P20 and P53. It is true that when description of certain injuries noted in Exhibit P20 were put to P.W.54, he had given a reply to the effect that he had not noted those injuries Exhibit P20 was not shown to the witness. A comparison of the injuries noted in Exhibit P20 with that of Exhibit P53 shows that the injuries noted in Exhibit P20 are noted in Exhibit P53 also. In Exhibit P.20 oozing of fluid from the mouth was noted. In Exhibit P53 the doctor noted oozing of bloodstained fluid through mouth. In Exhibit P20 an abrasion was noted on the left eye lid. Injury No.6 noted in Exhibit P53 is an abrasion on the left upper eye lid. The injuries on the tip of nose and lip are noted in Exhibit P20 as well as in Exhibit P53. So, there is absolutely no merit in the argument raised by the appellants that there are differences in the injuries noted in Exhibits P20 and P53. 35. It is argued that Exhibit P20 shows that photo of the dead body was taken; but that was not produced before Court. A photo taken at the mortuary alone was produced before the court. It is argued that had the photo taken at the time of inquest was produced, that would have established the identity of the body beyond any doubt. A photo taken at the mortuary alone was produced before the court. It is argued that had the photo taken at the time of inquest was produced, that would have established the identity of the body beyond any doubt. It is true that in Exhibit P20 there is a statement to the effect that a photo was taken. But, that was not produced before Court. In view of the other evidence adduced in this case, the non-production of the photo taken at the time of inquest is not material. 36. P.Ws.2, 3, 9, etc. went to the hospital and identified the dead body. P.W.1 had stated that when the news of spotting a dead body on Koodathayi river was known, P.W.2, along with Pavithan and Madhu went to the hospital and identified the body. Subsequently P.W.3, P.W.9 and others went to the hospital. The persons who went to the mortuary first wanted to confirm the identity of the dead body. None of the persons who went to the Medical College Hospital for the first time were relatives of the deceased. They came back and informed P.W.9 that the dead body kept in the mortuary was that of Manojkumar. It is to be noted that there was no disfiguration of the face or body and after bringing the same to the mortuary, the same was kept in the cold room from 10.00 p.m. on 16.10.1995 onwards. P.Ws.3, 9 and 2 along with others again went to the mortuary of the Medical College Hospital and identified the body. The evidence given by P.W.2 was confirmed by P.W.3 (Vijayakumar) as well as P.W.9 (Mukundan). P.W.3 deposed that he along with P.W.9 and others went to the Medical College Hospital and identified the dead body kept in the mortuary. He deposed that he had no doubt regarding the identity of the dead body. So, he asked P.W.9 to remain in the hospital and others came back. P.W.9, who is the brother-in-law of the deceased, also corroborates the evidence of P.Ws.2 and 3. After confirming the identity, P.W.9 went to the Thamarassery Police Station and informed the Sub Inspector that the dead body kept in the mortuary was that of Manojkumar. The deceased was wearing a black pant, blue shirt and an H.M.T. Watch when he left the house in the morning of 15.10.1995. Those articles were subsequently seized and produced before the Court. The deceased was wearing a black pant, blue shirt and an H.M.T. Watch when he left the house in the morning of 15.10.1995. Those articles were subsequently seized and produced before the Court. Those articles were properly identified by P.Ws.1 to 3 and P.W.9. M.O.3 is the watch worn by the deceased. Exhibit P7 is the guarantee card of that Watch. P.W.9 deposed that it was he who purchased M.O.3 watch from the shop of P.W.40. P.W.40 proved Exhibit P7 and deposed that that was issued from his shop and that Exhibit P7 is in respect of M.O.3. The oral evidence of P.Ws.2, 3 and 9 along with the seizure of M.Os.1, 2 and 3 proves beyond any reasonable doubt that the friends and relatives of Manojkumar properly identified the dead body as that of Manojkumar. So, we hold that the dead body on which P.W.54 conducted post mortem and issued Exhibit P53 certificate was that of Manojkumar. 37. Manojkumar left Ambalavayal at about 4.30 p.m. on 15.10.1995. P.W.22 deposed that after 10.00-10.30 p.m. on 15.10.1995 while he came out of his house after taking his supper, he heard a heavy object being dropped into the river. He also saw a jeep proceeding to Thamarassery side. On the next day, people saw the dead body of Manojkumar drifting in Koodathayi River. So, the only inference possible is that Manojkumar was murdered during the night of 15.10.1995 and his dead body was dumped into the Koodathayi river. POINT NOS. 2 TO 4 ABDUCTION, MURDER AND ROBBERY 38. There is no eye witness to the incident. The prosecution relies on the circumstantial evidence to prove the guilt of the accused. The prosecution case is that on the evening of 15.10.1995, A2 to A4 approached Manojkumar, hired his jeep on the pretext that they want to go to Thamarassery. On the way, the 1st accused also boarded into the jeep. They went to Kakkayam and returned. On their way they committed the murder of Manojkumar by smothering and strangulating him and dumped the body into the Koodathayi River and had stolen the jeep. Thereafter the jeep was taken to Thopramkudy at Idukki and made an attempt to sell the same from where it was taken to custody. LINKS (A) AYYANKOLLY 39. P.W.3 was residing at Ayyankolly. His evidence shows that deceased Manojkumar owned two jeeps, one private jeep and another taxi jeep. Thereafter the jeep was taken to Thopramkudy at Idukki and made an attempt to sell the same from where it was taken to custody. LINKS (A) AYYANKOLLY 39. P.W.3 was residing at Ayyankolly. His evidence shows that deceased Manojkumar owned two jeeps, one private jeep and another taxi jeep. P.W.3 purchased a new jeep from P.W.39, which was originally belonging to P.W.38. P.W.38 (C.V. Paran) deposed that in the year 1995 he purchased a new jeep from the dealer. On the third day from the date of purchase, he sold the same to P.W.39 under Exhibit P24 agreement. P.W.39 deposed that he purchased the jeep from P.W.38 under Exhibit P24 agreement and thereafter he sold the same to P.W.3 under Exhibit P4 agreement. P.W.3 after purchasing the vehicle from P.W.39 got it registered as KL-12/5879. P.W.6 was the regular driver of P.W.3. P.W.6 deposed that he took the jeep for registration and the registration number allotted to that vehicle was KL-12/5879. He deposed that at about 8.30 p.m. on 12.10.1995 he took the jeep to the house of P.W.3 as usual and entrusted the key of the same with P.W.3. On the same day the deceased took that jeep from the house of P.W.3. P.W.6 identified M.O.5 as the bath towel kept in the vehicle. P.W.3 deposed that on 12.10.1995 the deceased Manojkumar came to his house, too the jeep stating that he (the deceased) want to go to Mahe and he will return the jeep after three days. So, the evidence on record shows that on 12.10.1995 the deceased Manojkumar went to the house of P.W.3 and took away the jeep bearing registration No.KL-12/5879 owned by P.W.3 after promising to return the same on 15.10.1995. (B) AMBALAVAYAL TAXI STAND 40. P.W.1 is the brother of the deceased. He deposed that at about 7.30 a.m. on 15.10.1995, the deceased left the house with jeep bearing registration No.KL-12/5879. He also deposed that the deceased took the jeep to the taxi stand at Ambalavayal Town as usual. Normally, the vehicle will be parked in front of Sajesh hotel. On that day, the deceased did not come back to the house. On 16.10.1995, P.W.1 made enquiries with P.W.2 regarding the whereabouts of his brother. P.W.2 informed P.W.1 that the jeep driven by the deceased was hired by a party for going to Thamarasery. Normally, the vehicle will be parked in front of Sajesh hotel. On that day, the deceased did not come back to the house. On 16.10.1995, P.W.1 made enquiries with P.W.2 regarding the whereabouts of his brother. P.W.2 informed P.W.1 that the jeep driven by the deceased was hired by a party for going to Thamarasery. He was further told that from Thamarassery, Manojkumar will go to Mahe and from there to Ayyankolly to return the vehicle. On 16th also Manojkumar did not return. On 17.10.1995 morning P.W.1 went to the house of P.W.3 and made enquiries. He came to know that Manojkumar did not return the vehicle. P.W.1 went to the house of P.W.9 and informed him about the missing of Manojkumar. They went to the Ambalavayal Police Station. P.W.1 gave Exhibit P1 F.I. Statement at 11.00 p.m. on 17.10.1995. Based on that F.I. Statement, Exhibit P1(a) F.I.R. was registered. P.W.1 deposed that he heard about the news that an unidentified dead body found floating in Koodathayi River was taken out of water and kept in the mortuary of Medical College Hospital. P.W.2 and others went to the Medical College Hospital and confirmed that the dead body was that of Manojkumar. He further deposed that in the afternoon of 18.10.1995 the dead body was brought to the house and cremated on that day itself. P.W.1 further deposed that when the deceased left the house, he was wearing a black pant, blue shirt and a H.M.T. Watch. The deceased was keeping a purse also with him. The deceased brought the vehicle from the house of P.W.3 on the night of 12.10.1995 and in the morning of 15.10.1995, he left the house not for any particular trip. During cross examination P.W.1 had deposed that P.W.2 told him that one driver Sethu had told P.W.2 that after reaching Thamarassery the deceased will go to Mahe Church to attend the annual festival and will be coming back only after attending the same. P.W.1 identified M.Os.1 and 2 as the Shirt and Pant worn by the deceased when he left the house in the morning of 15.10.1995. He also identified M.O.3 Watch as the one used by the deceased. He further deposed that M.O.3 Watch was gifted to the deceased by P.W.9. He produced before the Police M.O.4 photo of the deceased which was kept in the house. 41. He also identified M.O.3 Watch as the one used by the deceased. He further deposed that M.O.3 Watch was gifted to the deceased by P.W.9. He produced before the Police M.O.4 photo of the deceased which was kept in the house. 41. P.W.2 is the owner of a tea shop by name “Sajesh”. His evidence is as follows: At about 4.30 p.m. on 15.10.1995 the deceased came to the tea shop and ordered for a cup of tea. When the deceased had drunk half of the tea, he told P.W.2 that somebody came near his jeep. Without finishing the cup of tea, the deceased went near the jeep. After some time, Manojkumar came back and told P.W.2 that he had got a trip to Thamarassery he will go to Mahe to attend the annual festival of Mahe Church and thereafter only return the jeep to P.W.3. He heard the news of an unidentified body floating in Koodathayi River was taken out of water and kept in the mortuary of Medical College Hospital, Kozhikode. He along with others went to the hospital and identified that the dead body was that of Manojkumar. He also deposed that on the fateful day the deceased was wearing a black pant, blue shirt and a H.M.T. Watch. He identified M.O.1 (Shirt), M.O.2 (Pant) and M.O. (Watch). 42. P.W.3 is the owner of the jeep and brother-in-law of the deceased. He deposed that on the evening of 12.10.1995 the deceased came and took away his jeep bearing registration No.KL-12/5879. He further deposed that thereafter the whereabouts of the deceased were not known. He heard the news that an unidentified body floating on the Koodathayi River was retrieved and kept in the mortuary of the Medical College Hospital, Kozhikode. P.W.3 along with P.W.9 and 2-3 others went to the mortuary and identified the body as that of Manojkumar. He further deposed that when they went to the mortuary, the dead body was naked except a brief found on the body. 43. P.W.5 is a driver of taxi jeep in Ambalavayal Taxi Stand. His evidence shows that the deceased Manojkumar left the taxi stand after 4.30 in the evening of 15.10.1995 along with the party who hired that taxi. They informed the deceased as well as P.W.5 that they want to go to Thamarassery. 44. 43. P.W.5 is a driver of taxi jeep in Ambalavayal Taxi Stand. His evidence shows that the deceased Manojkumar left the taxi stand after 4.30 in the evening of 15.10.1995 along with the party who hired that taxi. They informed the deceased as well as P.W.5 that they want to go to Thamarassery. 44. P.W.9 deposed that at about 3.00 p.m. on 17.10.1995, P.Ws.2 and 1 came and told him that the deceased left Ambalavayal with the jeep on the evening of 15.10.1995 and he did not return. He further deposed that he heard that news that an unidentified dead body was floating in Koodathayi river and the same was kept in the mortuary of Medical College Hospital. P.W.2 and one Madhu and Pavithran went to the Medical College Hospital, verified the dead body. They came back and informed P.W.9 that the dead body kept in the mortuary was that of Manojkumar. He along with P.Ws.3 and 2 and others went to the mortuary of the Medical College Hospital and confirmed that the dead body was that of Manojkumar. He further deposed that when he saw the dead body, there was only a brief in the dead body. He deposed that he purchased a H.M.T. Watch from Raj Watch Works in the year 1992 under Exhibit P7 guarantee card and presented the same to the deceased. He also deposed that on 19.10.1995 the Circle Inspector of Police, Ambalavayal called him and informed him that a jeep was kept in the Murikkassery Police Station in Idukki District and he should go and verify whether that was the jeep owned by P.W.3. At about 12.00 noon on 20.10.1995, P.W.9 went to Murikkassery Police Station and identified the jeep. A number KL.11-7022 was written on a paper and pasted on the fronted glass of the jeep. In the front bumper plate on the rear side the another number was seen written. An attempt was seen made to obliterate the same using black paint. On a careful examination, it was seen that the old number written in that number plate was “KL 12-5879”. He produced Exhibit P7 guarantee card of M.O.3 Watch before the police. During cross examination he deposed that he went to the mortuary, saw the entire body and not the face alone and others also got into the mortuary and examined the body. He produced Exhibit P7 guarantee card of M.O.3 Watch before the police. During cross examination he deposed that he went to the mortuary, saw the entire body and not the face alone and others also got into the mortuary and examined the body. He also deposed that he had noted some injuries on the neck and face of the dead body. 45. The evidence of P.W.1 shows that at about 7.30 a.m. on 15.10.1995 the deceased left his house with the jeep bearing Registration No.KL-12/5879 as usual and went to the taxi stand at Ambalavayal. The evidence of P.Ws.2 and 5 shows that after 430 p.m. on 15.10.1995 a party came and hired the jeep driven by the deceased stating that they want to go Thamarassery on that day. The deceased left the stand informing P.W.2 that from Thamarassery he will go to Mahe and from there he will come back to Ayyankolly and return the jeep to P.W.3. The deceased left the stand driving the jeep along with the persons who hired the same after 4.30 p.m. On getting the information that un unidentified dead body floating in the Koodathayi River was taken out of the river and kept in the mortuary of Medical College Hospital, P.Ws.2, 3, 9 and others went to the hospital and identified the dead body as that of Manojkumar. IDENTIFICATION OF THE PERSONS WHO HIRED THE JEEP 46. The next point arising for consideration is whether it was the accused who hired the jeep and committed the murder of Manojkumar. The prosecution relies on the evidence of P.Ws.2, 4, 5, 7, 10, 22, 34, 48 and P.Ws.12 to 18, 36, 45, 47 and 52 to prove the identity of the persons who hired the jeep. AT AMBALAVAYAL TAXI STAND 47. The evidence of P.W.2 already extracted shows that on the evening of 15.10.1995, the deceased went to the tea shop of P.W.2 and placed order for a cup of tea. When Manojkumar had finished half of the contents, somebody came near his jeep which was parked on the side of the road opposite to the hotel run by P.W.2. The deceased kept the half finished cup of tea on the table and went near his jeep. He came back after some time and finished the tea and told P.W.2 that he (the deceased) had got a trip to Thamarassery. The deceased kept the half finished cup of tea on the table and went near his jeep. He came back after some time and finished the tea and told P.W.2 that he (the deceased) had got a trip to Thamarassery. He further informed P.W.2 that from Thamarassery he will go to Mahe and thereafter he will come back to Ayyankolly and return the vehicle to P.W.3. But, P.W.2 had not identified the persons who hired the jeep. P.W.5 is the owner-cum-driver of a jeep bearing registration No.KL-13A/2841. He deposed that on the evening of 15.10.1995 he was sitting in his jeep at the taxi stand. Then a person came and wanted to hire his jeep for going to Thamarassery and from there to Seethamount. That person enquired about the hire charges per kilometer. P.W.5 told that he will undertake the trip for Rs.6/= per running kilometer. That man was prepared to give Rs.5.50 per running kilometer. P.W.5 asserted that he will not undertake any trip for Rs.5.50 per kilometer. He identified the person who came near him and tried to book the jeep as A4 standing in the dock. P.W.5 further deposed that then two other persons came to the rear side of the jeep and joined A4. They told P.W.5 that they are prepared for Rs.6/- per kilometer. He identified one among the two as the 2nd accused standing in the dock. A4 boarded into the jeep. Then P.W.5 told them that he was not prepared to undertake the trip. A4 got down from the jeep. P.W.5 pointed out the jeep KL-12/5879, which was driven by the deceased on that day. Then the accused told him that the driver of that jeep was not available. P.W.5 told them that the driver had gone to the tea shop. Then deceased came out of the hotel and came near his jeep. P.W.5 told the deceased that the party had promised to pay Rs.6/- per running kilometer for going to Thamarassery and as they appeared to be total strangers, P.W.5 was not undertaking a trip. Then they made enquires with the deceased also regarding the hire charges. They informed the deceased that they are prepared to pay Rs.5.50 per running kilometer. One among them told that the deceased will adjust and all the three boarded into the front seat of the jeep. Then they made enquires with the deceased also regarding the hire charges. They informed the deceased that they are prepared to pay Rs.5.50 per running kilometer. One among them told that the deceased will adjust and all the three boarded into the front seat of the jeep. He further deposed that all the three persons were of the age group between 30 to 35 years. During cross examination, he deposed that the accused fixed the rate per running kilometer in his presence. It was the man with beard who said he (the deceased) will adjust for Rs.5.50 per running kilometer. He had also deposed that accused approached him at about 4.30 p.m. on the evening. Though P.W.5 was cross examined at length, nothing was brought out to discredit his testimony regarding the identification of A2 and A4 in the Court. So, the evidence of P.W.5 shows that A2 and A4 and another person came to the taxi stand and hired the jeep driven by the deceased at about 4.30 p.m. on 15.10.1995. KAITHAPOYIL 48. P.W.4 is a taxi driver, who was driving a jeep bearing registration No.KL-11C/4640. He deposed that at about 10.00 a.m. on 15.10.1995 he went to Mahe Church with a party and he returned from Mahe at 3.00 p.m. He further deposed that at about 6.00 p.m. he reached Kaithapoyil and then saw the jeep driven by the deceased coming from the opposite side. Both of them stopped the jeeps and exchanged pleasantries. The deceased told P.W.4 that he was going to Chithalayath at Thamarassery. P.W.4 also deposed that three passengers were in the jeep and all the three were sitting in the front seat of the jeep and one person partially came out of the jeep. P.W.4 identified that man as A2. According to P.W.4, the 2nd accused is having a slight squint eye. Another man was having beard. P.W.4 identified the man with beard as A4. The third man was having slight beard and he was not in the Court on the date of examination of P.W.4. He further deposed that when he came to know about the missing of Manojkumar, he told others that he saw the deceased with a party on the evening of 15.10.1995. P.W.4 identified the man with beard as A4. The third man was having slight beard and he was not in the Court on the date of examination of P.W.4. He further deposed that when he came to know about the missing of Manojkumar, he told others that he saw the deceased with a party on the evening of 15.10.1995. During cross examination, he deposed that if the driver of a jeep is known to the driver of another jeep coming from an opposite side, either they may stop the vehicles and exchange pleasantries or blow the horns. He deposed that himself and Manojkumar stopped the vehicles and talked about three minutes. The vehicles were stopped at the middle of the road. According to him, A2 is having a wrong eye (MALAYALAM). He deposed that it will take nearly one and a half hours to reach Kaithapoyil from Ambalavayal and he met the deceased at Kaithapoyil by 6.00-6.15 p.m. P.W.4 was also cross examined at length. Nothing was brought out to discredit his testimony regarding the identification of A2 and A4 in the Court. In this connection, it is pertinent to note that P.W.5 also deposed that normally a vehicle will take 1½ hours to reach Kaithapoyil from Ambalavayal. 49. The evidence of P.Ws.2 and 5 shows that deceased Manojkumar left the Ambalavayal taxi stand at about 4.30 p.m. on 15.10.1995. The evidence of P.W.5 further shows that the vehicle was hired by A2, A4 and another person. When the jeep driven by the deceased reached Kaithapoyil, the deceased, A2 and A4 were seen by P.W.4. P.W.4 and deceased stopped their respective vehicles and exchanged pleasantries and at that time P.W.4 saw A2, A4 and another person sitting in the front seat of the jeep. The deceased was last seen in the company of A2 and A4 by P.W.4. KAKKAYAM 50. The further prosecution case is that A1 boarded into the jeep from Koodathayi and the accused and the deceased went to Kakkayam. P.W.7 gave evidence to the effect that the first accused is his brother’s son. A1 used to visit him occasionally. In the year 1995, on the previous day of Mahanavami (Durgashtami) A1 came to the house of P.W.7 at about 10.30 p.m. and knocked at the door. P.W.7 and others had already gone to bed. P.W.7 woke up and asked for the identity of the visitor. A1 used to visit him occasionally. In the year 1995, on the previous day of Mahanavami (Durgashtami) A1 came to the house of P.W.7 at about 10.30 p.m. and knocked at the door. P.W.7 and others had already gone to bed. P.W.7 woke up and asked for the identity of the visitor. A1 revealed his identity. P.W.7 lit a lamp and opened the door. Then A1 entered into the verandah of the house. P.W.7 saw three other persons standing in the courtyard. He enquired about those persons. A1 told him that one was a ration shop owner and the other two were drivers. A1 told P.W.7 that as no room was available in the lodges, the others came with him to drop him in the house of P.W.7. Thereafter A1 went out and talked to the other persons standing in the courtyard. After some time, A1 along with a man with beard came back. A1 told P.W.7 that since the other man wanted to go to Kozhikode early morning on the next day, that person may also may be permitted to stay in that house during that night. Both of them slept in a side room on the verandah. P.W.7 identified A4 as the man with beard who came and stayed in the night on the previous day of Mahanavami along with A1 at his house. Next day early morning P.W.7 left the house as usual. At that time also A1 and A were sleeping. P.W.7 further deposed that about 10-15 days thereafter, A1-Prabhakaran again came to his house between 5.00 and 5.30 p.m. Prabhakaran went out after taking bath and returned after 15 minutes. At about 7 p.m. 2 or 3 persons came there using match sticks to find their way. Prabhakaran went out, talked to them. They entered in the courtyard of the house. P.W.7 further deposed that one among them was A4 in the dock he did not know the other person. Thereafter A1, A4 and the other man went away. On the next day morning he went to Kakkayam. He went to the quarters allotted to him by the K.S.E.B. and occupied by his son, C.W.10. C.W.10 told him that on the previous night A1 and four others came to the quarters and left. Thereafter A1, A4 and the other man went away. On the next day morning he went to Kakkayam. He went to the quarters allotted to him by the K.S.E.B. and occupied by his son, C.W.10. C.W.10 told him that on the previous night A1 and four others came to the quarters and left. He further deposed that at about 6 p.m. on that day when he came back to his house, he heard a news that a deadbody was found floating in the river near the Koodathayi bridge. P.W.7 went and saw the deadbody. During cross examination, P.W.7 deposed that he was residing at Kakkayam for the part 40 years and Prabhakaran used to visit his house occasionally. He admitted that he had seen A4 only on the night on which A4 stayed in his house. He also admitted that there was no electricity in his house and that was the reason why he lighted a lamp when came out on the previous occasion. He also admitted that when Prabhakaran came on the previous day of Mahanavami, it was about 11’O clock in the night and all the members of his family were sleeping. When A1 knocked the door, he woke up and opened the door. The evidence of P.W.7 proves beyond any reasonably doubt that A1, who is none other than his nephew, came with A4 and two others to his house on the previous evening of the date on which the dead body of Manojkumar was found floating in Koodathayi river. 51. According to the prosecution from the house of P.W.7, the accused went to the quarters allotted to P.W.7 and was occupied by C.W.10. C.W.10 is the son of P.W.7. He was not examined as he was not available. The learned Sessions Judge in paragraph 45 of the judgment had relied on the statement of C.W.10 recorded by the Magistrate under section 164 Crl.P.C. and marked as Exhibit P28 as substantive evidence. Learned counsel for the appellants has argued that it is illegal. 52. Section 164 of the Code of Criminal Procedure confers power on the Magistrate to record the confessions and statements. Section 164 reads as follows:- “164. Learned counsel for the appellants has argued that it is illegal. 52. Section 164 of the Code of Criminal Procedure confers power on the Magistrate to record the confessions and statements. Section 164 reads as follows:- “164. Recording of confessions and statements.- (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial; Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) ………. (3) ……… (4) ……… (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.” 53. The word “statement” is used in Section 164 of the Crl.P.C. in a wider sense. A statement made under section 164 Crl.P.C. is not inadmissible in evidence. It can be used either to corroborate or contradict the statements made in the court by a person who gave statement before the Magistrate in the manner provided in Sections 145 and 157 of the Evidence Act. Admission of such statements in evidence are governed and controlled by the provisions of Indian Evidence Act. It can be used for the purpose of cross examining him and to discredit the evidence of the maker of the same but the same cannot be used as a substantive piece of evidence. The wholescale marking of a statement of a witness recorded by the Magistrate in evidence is also not legal. 54. In Kunjukutty v. State of Kerala (1986 K.L.T. 1011) it was held that a statement recorded under Section 164 Cr.P.C. is not substantive evidence. The wholescale marking of a statement of a witness recorded by the Magistrate in evidence is also not legal. 54. In Kunjukutty v. State of Kerala (1986 K.L.T. 1011) it was held that a statement recorded under Section 164 Cr.P.C. is not substantive evidence. In Chandrasekharan v. State of Kerala (1993 [1] K.L.T. 571) a Division Bench of this Court has held as follows:- “It is well settled that the statement of a witness recorded by a Magistrate under S.164 if the Code is not substantive evidence and the most that can be used of it is only for corroboration of the testimony of that witness as provided in S.157 of the Evidence Act or for contradicting the witness in the manner provided in S.145 of the Evidence Act. (State of Delhi v. Shri Ram Lohia [AIR 1960 SC 490], Ram Kishan v. Harmit Kaur (AIR 1972 SC 468) and Sawal Das v. State of Bihar (AIR 1974 SC 778).” The evidentiary value of the statement recorded by a Magistrate under Section 164 Cr.P.C. again came up for consideration before another Division Bench of this Court in Benni v. State of Kerala (1999 (3) K.L.T. Page 96) (Case No.102). It was held as follows:- “Section 164 Cr.P.C. statement recorded by a Magistrate is not substantive evidence and it can be used only for the purpose of corroboration or contradiction of the maker of the statement. A statement recorded by a Magistrate under S.164 Cr.P.C. becomes usable to corroborate the witness as provided in S.157 of the Evidence Act or to contradict him as provided under S.145 thereof.” So, the learned Sessions Judge went wrong in marking the whole statement of P.W.10 and C.W.10 recorded under Section 164 of the Code of Criminal Procedure in evidence and relying on Exhibit P28 as substantive evidence. 55. The prosecution examined P.W.8 to prove that the accused along with deceased Manojkumar came to the quarters of P.W.7 in the evening of 15-10-1995. P.W.8 was residing in a quarters allotted to his brother and situated very near to the one occupied by C.W.10. P.W.8 was working as a cleaner in a stage carriage bus by name J.B.T. He deposed that last trip of the vehicle will be over by 6.15 p.m. and the bus will be parked in front of the quarters allotted to his brother. P.W.8 was working as a cleaner in a stage carriage bus by name J.B.T. He deposed that last trip of the vehicle will be over by 6.15 p.m. and the bus will be parked in front of the quarters allotted to his brother. He deposed that in the year 1995 one day at about 9 p.m. he came out of the quarters after taking his supper. He saw a white jeep parked in front of the quarters of C.W.10. P.W.8 misunderstood those persons as the persons who came to seize the bus as there was default in payment of the vehicle loan. He deposed that the Registration Number of the jeep started with KL-12, but he did not remember the remaining numbers. He enquired with C.W.10 as to who were the passengers. C.W.10 told P.W.8 that those persons were his relatives. He deposed that one among the persons who came in the jeep asked for a beedi, but he had no beedi with him. He also deposed that one among the persons who came in the jeep was a stout black man. He deposed that for going to Koodathayi, one must reach the estate junction and then pass through Thamarassery. The evidence of P.W.8 is not sufficient to hold that he saw the accused and deceased on the night of 15-10-1995 near the quarters occupied by C.W.10. His evidence only shows that he saw a white jeep with Registration number starting with KL-12. So, we are not placing any reliance on the evidence of P.W.8. KOODATHAYI BRIDGE 56. P.W.22 is a person who is residing near Koodathayi Bridge. He deposed that on 16-10-1995, he heard the news that an unidentified dead body was found floating in the river. In the afternoon he went near the Koodathayi Bridge and saw the dead body. He further deposed that in the previous night after 10.30 when he came out of his house after his supper, he heard the sound of somebody dropping something into the river. Immediately thereafter he saw a jeep, which came from Koodathayi side proceeding to Thamarassery. On the next day, P.W.22 also heard the news that an unidentified dead body was found floating in Koodathayi river. P.W.10 and one Baby got in the river and brought the dead body to the shore of the river. 57. Immediately thereafter he saw a jeep, which came from Koodathayi side proceeding to Thamarassery. On the next day, P.W.22 also heard the news that an unidentified dead body was found floating in Koodathayi river. P.W.10 and one Baby got in the river and brought the dead body to the shore of the river. 57. The evidence of P.W.22 alone is not sufficient to hold that the sound he heard on the night of 15.10.1995 occurred due to the falling of the dead body of Manojkumar in the river. The learned counsel for the appellants has argued that the sound which P.W.22 heard could have been caused due to dumping of animal waste also. It is argued that P.W.22 had admitted that the animal waste from the butchers will be dumped in the river from the bridge. There will be remarkable difference in the sound that may be caused due to dumping of animal waste and dumping of the body of a fully frown up man. The evidence of P.W.22 probabilises the case of prosecution that after leaving the house of P.W.7 the accused murdered Manojkumar and dumped his body into the river from Koodathayi bridge. THOPRAMKUDI AT IDUKKI 58. The further prosecution case is that after dumping the dead body in the river, the accused went to Thopramkudi at Idukki District and parked the jeep in the courtyard of the house of P.W.12. P.W.12 deposed that he has got a house at Thopramkudi which was lying vacant at that time. On 16-10-1995 at about 6 p.m. when P.W.12 came to Thopramkudi junction, he came to know that a jeep brought by A1 was parked in the courtyard of his house. He came to the house and saw that jeep. A piece of paper with a number written on the same was passed on the glass of the jeep. At about 9.00 p.m. on 16-10-1995, the police came and took the jeep to Murikkasseri Police Station. P.W.12 had not seen the person who brought the jeep. P.W.13 and P.W.14 also saw the jeep parked in the courtyard of the house of P.W.12. P.W.14 saw P.W.15 taking down the number of the jeep written in a piece of paper and also another number written in the number plate which was subsequently obliterated using paint. P.W.14 deposed that he went and saw the jeep parked on the courtyard of the house of P.W.12. P.W.14 saw P.W.15 taking down the number of the jeep written in a piece of paper and also another number written in the number plate which was subsequently obliterated using paint. P.W.14 deposed that he went and saw the jeep parked on the courtyard of the house of P.W.12. When he was returning from the house of P.W.12, saw the first accused on the way. P.W.14 also deposed that when he reached Thopramkudi, he saw P.W.12 alighting from a bus and then he conveyed the information that a jeep brought by A1 was parked in the courtyard of his house. P.W.15 deposed that himself along with one Johny went to the house of P.W.12 on hearing the news that a white jeep was parked in the courtyard of the house of P.W.12. The Registration Number KL.11-7022 was written on a piece of paper and affixed on the front glass of the jeep. He verified the number plate in the rear side of the jeep. He saw another number KL.12-5879 written in that number plate. That number was covered using black paint. He became suspicious about the identity of the vehicle. So he noted down both the numbers in a piece of paper. He handed over that paper slip subsequently to P.W.53, Circle Inspector of Police, Sulthan Bathery. 59. P.W.18 deposed that P.W.15 informed him that A1 had brought a jeep for sale. P.W.18 went to the house of P.W.12 and saw the jeep. He deposed that C.W.30 Thankachan asked him whether he can make arrangements for the sale of the jeep. P.W.18 told that he cannot do that. When he reached near the arrack shop, he saw two persons standing on the road. He was told that A1 along with those persons brought the jeep. P.W.18 identified A4 as one among them. He further deposed that the other person whom he had seen was not in the dock. P.W.18 became suspicious. He telephoned Murikkassery Police Station and informed the A.S.I. that he had doubt regarding the vehicle. He further deposed that in the night Police came to the house of P.W.12 and took the jeep to the police station. A1 was directed to produced the vehicular documents. He had prior acquaintance with A1 Prabhakaran. He had also deposed that A4 was having beard. He further deposed that in the night Police came to the house of P.W.12 and took the jeep to the police station. A1 was directed to produced the vehicular documents. He had prior acquaintance with A1 Prabhakaran. He had also deposed that A4 was having beard. He made the telephone call to the police station at 9.00 p.m. The phone was attended by the Assistant Sub Inspector. He had seen the police taking the vehicle to the police station. 60. P.W.52 is residing at Thopramkudi. He deposed that A1 approached him for the sale of the jeep. He deposed that A1 owed him an amount of Rs.3,500/=. He demanded repayment of the amount. The 1st accused told him that his cousin had brought a jeep and the amount will be repaid after selling the same. A1 requested P.W.52 to contact Joy and to ask Joy whether he can arrange the sale of the jeep. During cross examination, he reiterated that he had prior acquaintance with A1. 61. P.W.37 is conducting a tea shop at Thopramkudi. He is having prior acquaintance with A1. He deposed that one afternoon in 1995, two persons came to his shop and ordered for three cups of tea. He prepared three cups of tea and placed on the table. Then A1 also joined the other two. P.W.37 replied in the affirmative. P.W.37 deposed that all the three drank tea, gave money and went out. He identified A4 standing in the dock as one among them. 62. P.Ws.16 and 17 were examined to prove that after taking the jeep to Thopramkudi, A1 purchased paint from the shop in which P.W.17 was a salesman and using black paint, the old number was covered and thereafter the new number was written. P.W.16 is the son of A1. He admitted that he purchased paint. P.W.17 deposed that he sold two sample tins of paint one black and the other white, each containing 50 ml. And also a brush to P.W.16. 63. P.W.46 is the Head Constable attached to Murikkassery Police Station. He served the notice issued by the Assistant Sub Inspector to A1 (Prabhakaran) calling upon him to produce the vehicular documents. A1 did not produce the R.C. Book or other documents. The number plate fitted on the rear side of the jeep was seized and send to expert opinion. 63. P.W.46 is the Head Constable attached to Murikkassery Police Station. He served the notice issued by the Assistant Sub Inspector to A1 (Prabhakaran) calling upon him to produce the vehicular documents. A1 did not produce the R.C. Book or other documents. The number plate fitted on the rear side of the jeep was seized and send to expert opinion. The expert opinion which is marked as Exhibit P51 shows that the number written in the number plate was KL-12/5879. 64. The evidence discussed above proves beyond any reasonably doubt that the jeep bearing registration No.KL-12/5879 was taken to the house of P.W.12 during the night of 15.10.1995 and parked in the courtyard of his house. An attempt was made to conceal the original number using black paint. Another number (KL-11/7022) was written in a piece of paper and pasted on the front glass of the jeep. The persons who brought the jeep made unsuccessful attempts to sell that jeep atleast as scrap. On the night of 16.10.1995, the jeep was taken into police custody. It was identified as the jeep belonging to P.W.3 and driven by the deceased Manojkumar. The witnesses identified A1 Prabhakaran and A4 Chacko @ James as two among the persons who brought that jeep. IDENTIFICATION AND ITS ACCEPTABILITY 65. Learned Senior Counsel appearing for the appellants has argued that even accepting for the sake of argument that the jeep recorded from Thopramkudy was the one owned by P.W.3 and driven by deceased Manojkumar at 4.30 P.M. On 15.10.1995, there is absolutely no material to show that it was the appellants who had stolen it after killing Manojkumar. It is argued that the entire evidence adduced by the prosecution is only against the first accused. It is argued that except the evidence of P.Ws.4 and 5, which is highly artificial, there is absolutely no evidence to connect the second accused to the offences alleged. The evidence adduced by the prosecution is not sufficient to establish the guilt of the 4th accused also. 66. It is argued that though a Test Identification Parade was conducted in this case, the same cannot be relied on for any purpose. It is pointed out that the witnesses had occasion to interact before and after the identification parade and the same was conducted in the presence of Police officers at the Court Hall. 66. It is argued that though a Test Identification Parade was conducted in this case, the same cannot be relied on for any purpose. It is pointed out that the witnesses had occasion to interact before and after the identification parade and the same was conducted in the presence of Police officers at the Court Hall. It is also argued that P.W.4 had admitted that A2 was having squint eye, but no person with a squint eye was placed among the non-suspects. It is also argued that though the prosecution has got a case that A4 was a person with a beard, sufficient number of persons with beard were not included among the non-suspects. The learned counsel relied on the decisions reported in Chander Singh V. State of U.P. (AIR 1973 SC 1200) and Wakil Singh V. State of Bihar (AIR 1981 SC 1392) in support of this argument. It is argued that when one of the supports is having a special feature, such as brown eye or a scar of small pox, sufficient number of non-suspects having the similar feature should be paraded. 67. There cannot be any dispute regarding the legal proposition laid down in the above stated decisions. We had occasions to consider the precautions to be taken and guidelines to be followed by the Magistrate while conducting Test Identification Parade in Acharaparambath Pradeepan v. State of Kerala (I.I.R. 2005 [3] Kerala 361). In this case, the Test Identification Parade was conducted in the Court Hall. The evidence shows that P.Ws.4 and 5 had occasion to interact each other. The learned Sessions Judge himself has not placed any reliance on the result of the Test Identification Parade. We are also not placing any reliance on the Test Identification Parade. 68. It is true that A2 was identified by P.Ws.4 and 5 alone. It is argued that even according to P.W.5, it was A4 who approached him for hiring the jeep and only after fixing the rate, etc., the other two persons came near the jeep. It is further argued that the prosecution has no case that A2 even boarded into the jeep. So, it was impossible for P.W.5 to identify the 2nd accused. The evidence of P.W.5 shows that he demanded Rs.6/- per kilometer, but A4 bargained for Rs.5.50. It is further argued that the prosecution has no case that A2 even boarded into the jeep. So, it was impossible for P.W.5 to identify the 2nd accused. The evidence of P.W.5 shows that he demanded Rs.6/- per kilometer, but A4 bargained for Rs.5.50. P.W.5 had deposed that then two persons came to the rear side of the jeep and agreed to pay Rs.6/-. Unless those two persons were also listening the conversation between A4 and P.W.5, they could not have intervened and agreed for Rs.6/-. P.W.5 identified one of those two persons as the 2nd accused. Though P.W.5 initially agreed to undertake the trop, he backed out because they were total strangers. The evidence of P.W.5 shows that he had enough time to see and familiarize the features of the three persons who came to hire his jeep. He refused to undertake the trip as he was not prepared to place any confidence on these persons. So, the identification of A2 by P.W.5 in Court is not artificial, but natural and convincing. It is to be remembered that P.W.5 is a driver by profession, who has occasion to mingle with various types of persons and by habit a taxi driver will be able to recollect the face of a passenger. 69. The identification of A2 by P.W.4 was attacked on the ground that he had no opportunity to see A2 at all. It was argued that when a taxi is proceeding from one direction to another and if a friend of the driver of the vehicle comes from the opposite side, there is no practice of stopping the vehicle to exchange pleasantries. It is to be noted that the taxi stand at Ambalavayal is situated in a rural area. People in the locality will have acquaintance with the drives of the taxies. The jeep driven by P.W.4 was hired by a party for going to Mahe to attend the festival of Church and was returning from Mahe to Ambalavayal. There is nothing strange in the conduct of P.W.4 and the deceased in stopping the vehicles when they saw each other at Kaithapoyil. The road in which they stopped the vehicles and talked though a National Highway, is not an area having very heavy traffic. There is nothing strange in the conduct of P.W.4 and the deceased in stopping the vehicles when they saw each other at Kaithapoyil. The road in which they stopped the vehicles and talked though a National Highway, is not an area having very heavy traffic. We do not find any reason to disbelieve the evidence of P.W.4 to the effect that when he reached Kaithapoyil the jeep driven by the deceased came from the opposite side and on seeing the vehicle driven by deceased Manojkumar P.W.4 stopped his vehicle and Manojkumar also stopped his vehicle. P.W.4 deposed that when he was talking to Manojkumar, A2 put his head out of the vehicle and looked. According to P.W.4, A2 is having as light squint eye. According to P.W.4, that is only sight deformity (MALAYALAM). So, P.W.4 had enough time to note the physical feature of A2 and remember his face. So, the identification of A2 in Court by P.W.4 is also not artificial. We accept the same. 70. A4 was identified by P.Ws.4, 5, 7, 18, 20 and 37. All of them had given cogent and convincing reasons why they remember his identity. P.W.5 saw the 4th accused when he along with the other accused approached and talked to him regarding hire charges. P.W.4 deposed that the 4th accused was sitting in the front seat and he was having beard. The evidence of P.W.20, the regular barber of A4, shows that after the incident A4 removed the beard with the intention of making his identification difficult. The evidence of P.W.7 shows that few days prior to the incident involved in this case, A4 and A1 went to his house and stayed there for a night. A4 came again on the date on which Manojkumar was killed. When P.W.7 saw A4 for the second time, he remembered him as a person who had come with A1 on a previous occasion. So, the identification of A4 by the above said witnesses also inspires the confidence of the Court. We do not find any reason to reject the evidence of P.Ws.4, 5, 7, 18, 20 and 37 regarding the identification of A4 in Court. We accept the same. CONTRADICTIONS – VIOLATION OF SECTION 162 Cr.P.C. 71. So, the identification of A4 by the above said witnesses also inspires the confidence of the Court. We do not find any reason to reject the evidence of P.Ws.4, 5, 7, 18, 20 and 37 regarding the identification of A4 in Court. We accept the same. CONTRADICTIONS – VIOLATION OF SECTION 162 Cr.P.C. 71. The learned counsel appearing for the appellants attacked the evidence of P.Ws.1, 3, 4, 6, 7, 9, 12, 14, 15, 17, 18, 21, 22, 26, 32 and 54 on the ground that there are contradictions and omissions in their evidence. It is argued that the Court below violated the mandatory provisions of Section 162 Cr.P.C. and thereby committed a material irregularity. According to the appellants, the entire prosecution case is to be discarded since a reading of the deposition of P.W.53, the Investigating Officer, will show that P.Ws.1, 2, 3, 4, 6, 7, 9, 12, 14, 15, 17, 18, 21, 22, 26 and 32 contradicted their earlier versions either by denying the statement or omitting to state certain material facts. A number of questions were put to P.W.53 to the effect that some of the prosecution witnesses either made contradictions or omissions from their earlier statements recorded by the police under Section 162 Cr.P.C. But, a reading of the deposition of those witnesses will not show that those contradictions or omissions were put to them. Their attention was not seen invited to those omissions or contradictions. The contradictions, if any, brought out in the 162 statements were not seen marked as exhibits as well. 72. It is argued that actually the witnesses were confronted with omissions and contradictions from their statements recorded under Section 162 Cr.P.C., but the learned Sessions Judge did not record those questions and answers. It is also argued that the specific portion of the C.D. statements were read over to the witnesses but the learned Sessions Judge did not mark those portions. It is also argued that after recording the evidence, the same was not read over to the witnesses in the court. So the mistakes committed by the Sessions Judge could not be remedied at that time. It is argued that that is why such discrepancy arose. The deposition of the witnesses contains an endorsement to the effect that the deposition of each witness recorded was read over to those witnesses and admitted by them to be correct. So the mistakes committed by the Sessions Judge could not be remedied at that time. It is argued that that is why such discrepancy arose. The deposition of the witnesses contains an endorsement to the effect that the deposition of each witness recorded was read over to those witnesses and admitted by them to be correct. If, as a matter of fact, learned Sessions Judge failed to read the deposition of any witness in the open court in the presence of the accused, the accused ought to have raised objection and insisted that the evidence recorded should be read over to the witness in the presence of the accused before examining the next witness. A Solemn statutory duty is cast upon the Magistrate/Sessions Judge to read over the deposition to witness in the presence of the accused. The provisions contained in Section 278 Cr.P.C. are very material. It reads as follows:- “278. Procedure in regard to such evidence when completed.- (1) As the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. (3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.” Though Section 278 is not intended to permit a witness to resile from his statement in the name of correction as held in Mir Mohd. Omar v. State of W.B. (AIR 1989 SC 1785), a statutory duty is cast upon the Presiding Offices to read out the deposition to the witnesses in the open court that too in the presence of the accused or his pleader. Section 278 Cr.P.C. enjoins that the deposition is to be read over to the witnesses in the presence of the accused. Section 278 Cr.P.C. enjoins that the deposition is to be read over to the witnesses in the presence of the accused. In this connection, the Circular No.2/71 dated 12th January, 1971 issued by this Court in relation to the corresponding provision of the old Code, is relevant. It reads as follows:- “Attention of the Criminal courts is invited to section 360 of the Criminal Procedure Code and the circulars cited. They are informed that serious notice will be taken of any failure to comply with the requirements of section 360 of the Criminal Procedure Code which requires that the deposition should be read over in the presence of the accused which means that the accused or his pleader should also hear the deposition being read. Giving the deposition to the witness to be read by him or reading it out to him in some corner of the Court hall not in the hearing of the accused while the court proceeds with the examination of the next witness or with some other work is not compliance with the section.” (emphasis supplied) 73. Reading of the deposition in the presence of the accused is not an empty formality. It is not a concession shown by the Magistrate/Judge to the witness. The statutory requirement is to be strictly complied with by the Judges and Magistrates. In Dasan v. State of Kerala (1986 KLT 598) it was held that the provisions of Section 278 Cr.P.C. should be complied with even in the case of a literate witness to avoid such contention. In Barley v. State (1986 K.L.T. 840) it was held that Section 278 Cr.P.C. cases a duty on the court to have the depositions read over to the witness in the presence of the accused and/or his pleader and this duty cannot be ignored. But it was also held that the non-compliance of Section 278 Cr.P.C. is only a curable irregularity. 74. In this case no objection was seen raised before the learned Sessions Judge that the depositions of the witnesses were read over to them in open court. If the Judge/Magistrate fails to discharge the statutory duty of reading over the deposition to the witnesses in the open court as enjoined by Section 278 of the Code of Criminal Procedure, the accused or his Advocate should insist that the deposition shall be read over to the witness in the open court. If the Judge/Magistrate fails to discharge the statutory duty of reading over the deposition to the witnesses in the open court as enjoined by Section 278 of the Code of Criminal Procedure, the accused or his Advocate should insist that the deposition shall be read over to the witness in the open court. In all cases, be it a civil case or criminal case, it is highly essential that the deposition should be read over to the witness. The practice of handing over to the witness. The practice of handing over the deposition to be read by the witness is to be stopped. In a civil case reading over deposition is a matter between the Judge and witness. Unlike in a civil case, the accused in a criminal case has got a statutory right to hear the Presiding Officer reading over the deposition to the witness. It is true that he has no right to suggest corrections, but he has to answer the questions put to him based on the evidence of the witness. Since the failure to read the deposition in the open court is only curable illegality, the prosecution case cannot be rejected on that ground particularly when the accused had no grievance in that regard before the trial court nor have they raised any ground in that behalf in their memorandum of appeal. The accused cannot be allowed to raise such an objection for the first time before the appellate Court. In the memorandum of appeal also there is not even a whisper about the alleged non-compliance of Section 278 Cr.P.C. 75. Section 162 Cr.P.C. deals with the use of statements in evidence. The statements given by any person and reduced to writing under Section 161 Cr.P.C by a Police Officer can be used only to contradict the statement of the witness. Under the Indian Evidence Act, a former statement made by a witness can be used to contradict him, to impeach his credit, to corroborate him, or to refresh his memory. Section 162 Cr.P.C. imposes an absolute bar to the use of the statements. The intention behind Section 162 Cr.P.C is to protect the accused from being prejudicially affected by any dishonest or questionable methods adopted by an overzealous police officer. Under Section 145 of the Indian Evidence Act, proof of statements follows the putting up of it to the witness. Section 162 Cr.P.C. imposes an absolute bar to the use of the statements. The intention behind Section 162 Cr.P.C is to protect the accused from being prejudicially affected by any dishonest or questionable methods adopted by an overzealous police officer. Under Section 145 of the Indian Evidence Act, proof of statements follows the putting up of it to the witness. Section 162 Cr.P.C states that a previous statement to the police can be used to contradict a witness if it is duly proved. A combined reading of Sections 161 and 162 Cr.P.C. shows that the attention of the witness is to be called to the previous statement before the same can be proved. If the witness admits the previous statement or explains the discrepancy or contradiction, it obviously makes it unnecessary for the statement thereafter to be proved by marking it. If the statement still requires to be proved, that can be done later by calling the police officer before whom the statement was made. It is well settled position of law that before using the statement, the witness must be afforded a reasonable opportunity of explaining the contradictions, after his attention has been drawn to such statements, in a fair and reasonable manner. The entire statement recorded under Section 161 (3) Cr.P.C is not admissible in evidence. So, the entire statement cannot be marked as an exhibit. The correct procedure to contradict a witness is to draw his attention to the relevant part of the contradictory statement which he had made before the Police Officer and to question him whether he did make that statement. If he replies in the affirmative, that admission establishes the contradiction. When the particular sentence or assertion in the statement under Section 161 Cr.P.C is put to the witness it must be marked by being underlined or enclosed in a circle and exhibited. That admission is to be recorded in the deposition. If he denies that part of the Statement, that is to be proved in accordance with the provisions of the Evidence Act. If he denies having made such a statement or states that he does not remember having made the assertion or spoken the sentence, the officer who recorded the statements will have to be called to prove that he had made or spoken it. If he denies having made such a statement or states that he does not remember having made the assertion or spoken the sentence, the officer who recorded the statements will have to be called to prove that he had made or spoken it. It is to be noted that when a statement is put to the witness, he may admit it. He may deny having made such a statement or he may admit a part or portion of the statement and deny the rest of it. The admission if it amounts to a contradiction is to be recorded and it needs no further proof and rest of it alone is to be proved. He may also plead lack of memory and state that he does not remember. If the witness states that he does not remember, then also the statement has to be properly proved. The procedure to be followed in such cases is well established. 76. An omission may amount to a contradiction. Before the police a witness may state that A and B committed the murder. But in court he may state that A, B and C took part in the commission of the offence. That omission is in the form of a positive contradiction. If the witness admits that he did not state the name of C before the police officer that admission proves that omission. But if the witness asserts that he had stated the name of C also to the police officer that omission is to be proved by putting that omission to that officer during his examination. He must be asked whether a certain statement was made by the witness before him. The records must show that the statement of the witness recorded under Section 162 Cr.P.C is read out to him and his attention was drawn to the non-existence of a certain statement therein. 77. In Bhagwan Singh Vs. He must be asked whether a certain statement was made by the witness before him. The records must show that the statement of the witness recorded under Section 162 Cr.P.C is read out to him and his attention was drawn to the non-existence of a certain statement therein. 77. In Bhagwan Singh Vs. State of Punjab (A.I.R.1952 S.C.214), the Apex Court considered the use of statements in Section 162 Cr.P.C. It was held as follows: - “In such a case, what the court really does though it may happen to put the matter the other way round, is to say that in its opinion the substantive evidence given in chief is true because it is corroborated by an earlier statement and for that reason, namely, because the version in chief is the true one the contradictory version given in cross-examination is wrong, not because of the contradiction embodied in the former statement but because of what was said in chief, a version which it is now safe to believe on account of the corroboration afforded by the earlier statement.” The matter was again considered by Tahsildar Singh v. State of U.P. (A.I.R. 1959 S.C.1012). A Constitution Bench of the Apex Court, elaborately considered the matter and held as follows:- “The procedure prescribed is that if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to S.162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by S.145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S.145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of S.145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of S.145 of the Evidence Act clearly indicates the simple procedure to be followed. Nor are we impressed by the argument that it would not be possible to invoke the second part of S.145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of S.145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer.” It was also held as follows:- “The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer and not between what he said he had stated before the officer and what he actually made before him.” In Sunny v. State (1960 K.L.T.1) [S.C.] it was held as follows:- “The cross-examination, ex facie, offends S.162 of the Code of Criminal Procedure, inasmuch as the witness was only questioned what statement he had made to the police and not confronted with the earlier statement, as required under S.145 of the Indian Evidence Act.” In Krishnan Nair v. State of Kerala (1971 K.L.T. 326) a Division Bench of this Court after elaborately considering Bhagwan Singh’s case and Tahsildar Singh’s case (supra) held as follows:- “In the instant case, we have no doubt that neither in form nor in substance have the provisions of S.145 of the Indian Evidence Act been complied with. The Investigating Officer did not even offer formal evidence that the statements within inverted commas put to him and to the witnesses were taken from the recorded statements under S.162 Criminal Procedure Code. The statements themselves were not marked. We are satisfied that this was a serious defect committed by the prosecution and by the Sessions Judge.” In George v. State (1988 (1) K.L.T. 256) a Learned Single Judge of this Court had considered the matter and laid down the procedure to be followed when the statements recorded under Section 161 Cr.P.C. are used for contradiction. We are satisfied that this was a serious defect committed by the prosecution and by the Sessions Judge.” In George v. State (1988 (1) K.L.T. 256) a Learned Single Judge of this Court had considered the matter and laid down the procedure to be followed when the statements recorded under Section 161 Cr.P.C. are used for contradiction. It was held as follows:- “The learned Special Judge seems to be unaware as to how statements under S.161(3) Crl.P.C. will have to be used for contradiction. The exact portion sought to be contradicted must be put to the witness and recorded in the deposition and it will have to be marked subject to proof by the investigating officer. Then it must be put to the investigating officer and proved. The Special Judge has not at all recorded the C.D. statement and there is nothing to show which portion of the statements were confronted.” In Sethumadhavan v. State (1988 (1) K.L.T. Short Notes Page 9 (Case No.17) it was held as follows:- “However, sometimes the statements which have been denied by the witness are provisionally marked for convenience to be later proved through the investigating officer who recorded the same. Even if it is marked, that being a statement made by a witness before a police officer in the course of the investigation can be used only to contradict his statement in the witness box and for no other purpose.” ………….. The procedure would be to ask the witnesses the first whether he made such a statement before police. If the answer is in the affirmative, the previous statement in writing need not be proved. If, on the other hand, the witness denies having made the previous statement, the cross-examiner must read out to the witness the relevant portion of the statement recorded which is alleged to be contradictory to his statement in court and give him an opportunity to reconcile the same. All that is required is that the witness must be treated fairly and be afforded reasonable opportunity to explain the contradiction. None of these procedure has been followed in this case.” In Imbayi v. State (1989 (1) K.L.T. 956) a Division Bench of this held that the entire case diary statements of witnesses marked enblock without incorporating in the depositions are illegal and will vitiate the trial. None of these procedure has been followed in this case.” In Imbayi v. State (1989 (1) K.L.T. 956) a Division Bench of this held that the entire case diary statements of witnesses marked enblock without incorporating in the depositions are illegal and will vitiate the trial. In Sivasankaran v. State of Kerala (1989 (1) K.L.T. Short Notes Page 48 (Case No.75) it was held as follows:- “The Sessions Judge seems to have overlooked the proviso to S.162(1) which says that the statement of a witness recorded under S.161 could be used only for certain limited purpose. The Sessions Judge seems to have allowed the defence counsel to ask questions and P.W.5 to answer them in violation of the above-said proviso. P.W.5 was asked by the defence counsel regarding the evidence of witnesses recorded under S.161. He gave answers also regarding those statements. These statements were not put to the witnesses for the purpose of contradiction and they were not proved through P.W.5. Such indirect method of overcoming the prohibition under the proviso to S.162(1) is not legal.” The procedure to be followed was again considered by a Division Bench of this Court in Puthenthara Mohan v. State of Kerala (I.L.R. 1990 [3] Kerala 801). The matter again came up for consideration in Thankappan Mohanan v. State of Kerala (1990 [1] 21) it was held as follows:- “What is really necessary is substantial compliance of the requirements of S.145 of the Indian Evidence Act and the purpose of the second part of S.145 is to treat witness fairly by giving him a reasonable opportunity to explain the contradictions after his attention has been drawn to them in a fair and a reasonable manner. The matter is one of substance and not of mere form. Previous statement if denied must be properly proved through the person who recorded the statement. The court must be satisfied that there is a contradiction between the previous statement in writing and the statement made in Court. When that portion has been brought to the attention of the witness he is given a reasonable of the witness he is given a reasonable opportunity to explain the contradiction and the previous statement is duly proved. The question is how and in what manner the deposition should reflect these factors. When that portion has been brought to the attention of the witness he is given a reasonable of the witness he is given a reasonable opportunity to explain the contradiction and the previous statement is duly proved. The question is how and in what manner the deposition should reflect these factors. The ideal procedure would be to record and extract in the deposition relevant previous statement, whether it be a long or a short passage. But it is really unnecessary to subject the overworked Sessions Judges with the task of recording the entire portions. There is nothing wrong in principle if instead of writing the relevant portions of the statement, only the commencing words and the ending words are recorded within inverted commas to indicate the particular passage in the written case diary statement and that portion is marked subject to proof and the deposition indicates that the procedure should not be adopted when the previous statement is attempted to be proved through the Investigating Officer, there is nothing wrong in the officer deposing that the witness had stated to him as seen stated in such and such exhibit (already marked). What is necessary is that the deposition shows that the making of the previous statement is proved by him and that statement is seen in the recorded statement in the case diary. When the relevant portion is marked and the Investigating Officer refers to that portion or exhibit, ordinarily that is sufficient to show that he has proved the previous statement which is part of the statement in writing.” 78. A reading of the deposition of the witnesses and P.W.53 shows that the learned Sessions Judge has not followed the procedure. The learned Sessions Judge failed to note that this is a very valuable right given to the accused and he is dealing with the life of an individual. In case the court finds that the accused is guilty of an offence punishable under Section 302 of Indian Penal Code, he has got only two options; either to award capital sentence or imprisonment for life. In such circumstances, the learned Sessions Judge is bound to follow the procedure in its true letter and spirit. It is very unfortunate that the learned Sessions Judge has not followed the procedure settled through a series of decisions of this Court as well as the apex Court. 79. In such circumstances, the learned Sessions Judge is bound to follow the procedure in its true letter and spirit. It is very unfortunate that the learned Sessions Judge has not followed the procedure settled through a series of decisions of this Court as well as the apex Court. 79. Even though the learned Sessions Judge has committed an illegality in dealing with the contradictions or omissions of the witness from their previous statements under Section 161 of the Code, that will not affect the merits of the case. We have carefully gone through each and every contradiction or omission the accused wanted to bring out. Those contradictions and omissions are not material so far as the appellants are concerned. So we do not find any reason to discard the prosecution case on that ground. 80. The evidence discussed clearly shows that the prosecution had succeeded in establishing the identity of the persons who hired the jeep. The oral evidence establishes beyond any reasonable doubt that the appellants were members of the group who hired the jeep driven by deceased Manojkumar on the evening of 15-9-1995. In this connection it is also pertinent to note that the prosecution is not resting its case solely on the oral evidence. It relies the recovery of the material objects also. 81. According to the prosecution, M.O.3 watch was seized from the house of the second accused in pursuance of the information furnished by him. The prosecution examined P.W.23 and P.W.24 to prove the seizure of M.O.3 watch. P.W.23 turned hostile. But he had admitted that police came to the house of A2 and prepared a mahazar and he has affixed his signature in that mahazar. He deposed that he did not see the police taking the watch from the house of A2. He does not know from which room the watch was taken. He further deposed that he does not know the name of the manufacturer of the watch. But he had admitted that the police took a watch and the strap of the watch was made up of leather. He had also deposed that the police told him that the watch belongs to the deceased. P.W.24 is an independent witness. He supports the prosecution case. He deposed that he saw the police bringing A2 to his house. But he had admitted that the police took a watch and the strap of the watch was made up of leather. He had also deposed that the police told him that the watch belongs to the deceased. P.W.24 is an independent witness. He supports the prosecution case. He deposed that he saw the police bringing A2 to his house. A2 took the watch, which was concealed among the papers on the top of a shelf which was made up of iron mesh and handed over the same to the police. He also deposed that he had seen the deceased wearing the watch. The evidence of P.W.24 was attacked on the ground that he is taxi driver from Ambalavayal Taxi Stand and the place of recovery was effected from a place which was more than 44.kms. Away from Ambalavayal. It is argued that he is a witness hired by the prosecution to prove the alleged recovery. It is true that P.W.24 is residing about 44.kms. Away from the place of recovery. P.W.24 deposed that he happened to come near the house of A2 on that day as his vehicle was hired for going to that place. The mere fact that P.W.24 was a driver by profession and parking his jeep in the Ambalavayal Taxi Stand alone is not a ground to disbelieve his evidence. The attestor to a seizure mahazar need not be a person of that locality itself. In this connection, it is to be remembered that even the hostile witness admits the coming of police to the house of A2 and taking a watch. P.W.53, the investigating officer has stated that after arresting A2 and A4, he questioned A2 and at that time A2 told him that in case he is taken to he will show the place where he had concealed the watch. Accordingly, A2 was taken to his house. He had shown the place wherein he had concealed the watch, took the same and handed over the same to P.W.53. The authorship of concealment is clearly established in this case. So the confession made by the second accused falls under Section 27 of the Indian Evidence Act. The materials on record show that M.O.3 was the watch worn by the deceased on the date on which he was found missing. The same was seized form the house of A2 pursuant to the information furnished by him. So the confession made by the second accused falls under Section 27 of the Indian Evidence Act. The materials on record show that M.O.3 was the watch worn by the deceased on the date on which he was found missing. The same was seized form the house of A2 pursuant to the information furnished by him. Seizure of M.O.3 goes a long way to prove the prosecution case. 82. After the arrest of A4, he was questioned by P.W.53. A4 confessed that the pant and shirt worn by the deceased were removed from his body and thrown away to a place at ‘Raghavan Nair slope’. He was taken to that place. A4 took M.O.1 pant and M.O.2 shirt and handed over the same to the police. The evidence on record shows that M.Os.1 and 2 were the dress worn by the deceased when he left his house on the morning of 15-10-1995. Though there is no evidence to establish the authorship of concealment of M.Os. 1 and 2, the conduct of the 4th accused pointing out the shirt and pant worn by the deceased is relevant under Section 8 of the Evidence Act. Though the confession stated to have been made by the 4th accused is not admissible under Section 27 of the Evidence Act, the same is admissible under section 8 of that Act. In Prakash Chand Vs. State (Delhi Admn.) (AIR 1979 SC 400) the Apex Court had considered the distinction between the conduct under section 8 and the confession under section 27 of the Evidence Act. It was held as follows:- “There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, Simpliciter, that an accused person led a Police Officer and pointed out the place where stolen Articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.” 83. The principle laid down in Prakash Chand’s Case was followed by a Division Bench of this court in V.Ravi Vs. State of Kerala (1994 Crl. LJ. 162). It was held as follows: - “The Supreme Court in the decision in Prakash Chand Vs. State (Delhi Admn.) (AIR 1979 SC 400): (1979 Cri LJ 329) held that the evidence of the circumstance that the accused led to the police officer and pointed out the place where the weapon which might have been used in the commission of the offence were found hidden would be admissible as conduct, under S.8 of the Evidence Act, irrespective of whether any statement by the accused conduct falls within the purview of S.27 of the Evidence Act.” So the conduct of A4 taking the police officers to the place wherein M.O.1 pant and M.O.2 shirt were found and taking the same from the spot and handing over the police is relevant under Section 8 of the Evidence Act. The evidence proves that it was A2 to A4 who hired the jeep from the taxi stand of Ambalavayal for going to Thamarasseri. On the way A1 also boarded in the vehicle and they went to Kakkayam in that jeep. 84. It is true that there is no direct evidence to prove the guilt of the accused. In State of Rajasthan Vs. Raja Ram ((2003) 8 SCC 180) the Apex Court has held that conviction based on circumstantial evidence is permissible. On the way A1 also boarded in the vehicle and they went to Kakkayam in that jeep. 84. It is true that there is no direct evidence to prove the guilt of the accused. In State of Rajasthan Vs. Raja Ram ((2003) 8 SCC 180) the Apex Court has held that conviction based on circumstantial evidence is permissible. It was held as follows: - “Circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.” The evidence discussed above proves beyond any reasonable doubt that the appellants along with another accused hired the jeep bearing Registration No. KL–12/5879 driven by Manojkumar at about 4.30 p.m. on 15/10/1995 from Ambalavayal and on their way, they were last seen by P.W.4 at Kaithapoyil. Thereafter A1 also boarded into the jeep and all of them together went to the house of P.W.7 at Kakkayam. In the night itself they returned to Thamarassery. At about 10.30 p.m. on 15/10/1995 P.W.22 heard the sound of a heavy object falling into Koodathayai river. On the next day morning people in the locality saw the dead body of an unidentified person floating in the Koodathayai river. The dead body was taken to the shore by P.W.10 and another person. The dead body was subsequently identified as that of Manojkumar. The dress and watch worn by deceased Manojkumar were also identified. So the only inference possible from the proved facts is that it was the appellants along with other accused who hired the jeep on the pretext of going to Thamarassery. When they were coming back from Thamarassery, they committed the murder of Manojkumar and dumped the dead body into Koodathayi River. So the only inference possible from the proved facts is that it was the appellants along with other accused who hired the jeep on the pretext of going to Thamarassery. When they were coming back from Thamarassery, they committed the murder of Manojkumar and dumped the dead body into Koodathayi River. Thereafter they committed the theft of the jeep. 85. The learned counsel appearing for the appellants has vehemently argued that the finding of the learned Sessions Judge that the appellants kidnapped deceased Manojkumar is perverse. According to the prosecution, the appellants by deceitful means induced the deceased to go from Ambalavayal and they really took him to Kakkayam and on their way back, committed the murder and had stolen the jeep. It is argued that the accused committed the offences punishable under Sections 364, 302 and 392 read with Section 34 I.P.C. Section 362 I.P.C. defines abduction. It reads as follows: - “Abduction. - Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct the person.” Section 364 I.P.C prescribes the punishment of abduction or kidnapping. Section 364 reads as follows: - “Kidnapping or abducting in order to murder. — Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” It is true that they had no idea or intention to confine the deceased but the evidence on record shows that their intention was to commit theft of the vehicle if necessary after killing the driver. So the finding of the learned Sessions Judge that the appellants are guilty of the offence under Section 364 I.P.C. is also correct. The findings of the learned Sessions Judge that the appellants are guilty of the offences punishable under Sections 302, 364 and 392 read with Section 34 I.P.C. are correct and are to be confirmed. We confirm those findings. SENTENCE 86. The learned Sessions Judge found the appellants guilty of the offence punishable under Section 302 I.P.C convicted and sentenced them to death by handing. The evidence discussed in this case shows that A1 and A4 were in need of money. We confirm those findings. SENTENCE 86. The learned Sessions Judge found the appellants guilty of the offence punishable under Section 302 I.P.C convicted and sentenced them to death by handing. The evidence discussed in this case shows that A1 and A4 were in need of money. They had planned to raise the necessary funds by committing theft of a jeep and selling the same. In their attempt to commit theft, they murdered the driver of the jeep. The evidence on record shows that the accused are not hardened criminals and it cannot be held that there is no possibility of the appellants reforming themselves. 87. In Bachan Singh Vs. State of Punjab (1980 [2] SCC 684) the Apex Court has considered the factors to be taken into account while awarding death sentence. The Apex Court held that the extreme penalty of death need not be inflicted except in graves cases of extreme culpability. In Machhi Singh Vs. State of Punjab (1983 (3) SCC 470), the Apex court following Bachan Singh’s case (supra) observed that in rarest of rare cases when the collective conscience of the community is so shocked that it will expect the holders of the judicial desirability or otherwise of retaining death penalty, death sentence can be awarded. It was also held that the balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggregating an the mitigating circumstances before the option is exercised. In Ediga Anamma Vs. State of A.P. (1974 (4) S.C.C. 443) the Apex Court had observed that the weapons used, the manner of their use, the horrendous features of the crime, the helpless state of the victim etc. steal the heart of law for sterner sentence. We have considered all the material aspects in this case. Of course, this murder is also gruesome like any other murder. It is true that a sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. (See Earabhadrappa Vs. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. (See Earabhadrappa Vs. State of Karnataka (1983 (2) SCC 330). In view of the principles laid down in Bachan Singh’s case (supra) and Machhi Singh’s case (supra) this case cannot be considered as a rarest of rare case. We are of the considered opinion that this is not a fit case in which death sentence can be awarded. We decline to confirm the capital sentence imposed in this case. So while confirming the conviction of the appellants under section 302 I.P.C we modify the sentence imposed on the appellants and reduce the same to imprisonment for life. The conviction and sentences imposed under Sections 364 and 392 I.P.C are confirmed. 88. In the result, the Criminal Appeal and the Death Sentence Reference are disposed of in the following manner: The Criminal Appeal is allowed in part. The findings of the learned Sessions Judge that the appellants are guilty of the offences under Sections 302, 364 and 392 I.P.C are confirmed. The conviction imposed on them is also confirmed. But the sentence imposed under Section 302 I.P.C is modified and reduced to imprisonment for life. The appellants are entitled to set off subject to the provisions contained in Section 433A and provided that orders have been passed by the appropriate authority under Section 432/433(b) Cr.P.C The Death Sentence Reference is also answered accordingly. 89. The learned Sessions Judge has ordered return of M.O.3 watch to P.W.9 and M.O.10 number plate to P.W.3. Other M.Os. were ordered to be destroyed. The learned Sessions Judge failed to note the fact that A1 and A3 are still absconding. So it was not at all legal and proper to pass any final order of disposal of property under section 452 Cr.P.C. We suo motu interfere with that direction and set aside the same. The Sessions Court is directed to keep the original records as well as the material objects of the case for the trial of the other accused who are yet to be apprehended.