JUDGMENT : Shaffique, J. 1. The First Accused In Sessions Case No.193/09 Of The Additional Sessions Judge (Adhoc), Fast Track Court Ii Ernakulam Is The Appellant. He Was Tried For The Offences Punishable Under Sections 120(B), 109, 143, 147, 148, 364, 302, 404, 201, 212, 34 Read With Section 149 Of The Indian Penal Code Along With Accused Nos.2 And 3. The Court Below Acquitted Accused 2 And 3 And Convicted The Appellant After Finding Him Guilty For Offences Under Sections 143, 147, 148, 364, 302, 201 And 404 Read With S.149 Of The I.P.C. He Is Sentenced To Undergo Rigorous Imprisonment (R.I.) For Six Months Under Section 143 Of The I.P.C., R.I. For 1 Year Under S.147, R.I. For Two Years Under S.148, R.I. For 10 Years And To Pay Fine Of Rs. 15,000/- And In Default To Undergo Simple Imprisonment For Two Years Under S.364 Of The I.P.C., Imprisonment For Life And Fine Of Rs. 25,000/- For Offence Under S.302 I.P.C. And On Default Of Payment Of Fine To Undergo Simple Imprisonment For Two Years, R.I. For 3 Years For Offence Under Section 201 Of I.P.C. And To Pay A Fine Of Rs. 5,000/- On Default To Undergo Simple Imprisonment For 6 Months And R.I. For Two Years For Offence Under S.404 Of I.P.C. And Fine Of Rs. 5,000/- In Default Of Which To Undergo Simple Imprisonment For 6 Months. It Was Further Observed That The Substantive Sentences Shall Run Concurrently In The Event Of Remission And Commutation By The Government And He Will Be Entitled To Set Off The Period Of Detention Which He Had Already Undergone. He Was Acquitted Of The Offence Under Sections 120b, 109, 479 And 212 Of I.P.C. 2. The Prosecution Case Is That 14 Persons Hatched A Conspiracy To Kidnap And Do Away With Vidhyadharan, Who Was A Worker In The Indian Oil Corporation (Ioc) Bottling Plant At Udayamperoor. They Arranged An Ambassador Car. While Vidhyadharan Was Going For Work At About 6 Am On 13/9/2003, A Few Of The Accused Armed With Lethal Weapons Caught Hold Of Vidhyadharan, He Was Dragged Into The Vehicle And Was Kidnapped. They Gagged His Mouth With Insulation Tape And He Was Attacked With Lethal Weapons. All Of Them Took The Victim To A Bungalow At Athirappilly Estate And He Was Tortured. He Sustained Severe Injuries And He Died At About 2.45 P.M. On 13/9/2003. They Gagged His Mouth With Insulation Tape And He Was Attacked With Lethal Weapons. All Of Them Took The Victim To A Bungalow At Athirappilly Estate And He Was Tortured. He Sustained Severe Injuries And He Died At About 2.45 P.M. On 13/9/2003. The Accused Burnt The Belongings Of Vidhyadharan, Threw Some Of The Articles To Nearby Bushes To Destroy The Evidence. Dead Body Of Vidhyadharan Was Taken In The Boot Of The Car And Abandoned In A Vacant Place At Ambalamedu. 3. The Accused Nos.3 And 7 Were Absconding At The Time When The Final Report Was Filed Before Court. Accused No.13 Absconded At The Time Of Trial. 4. The Case Against Accused Nos.1, 2, 4 To 6, 8 To 12 And 14 Was Tried By The Additional Sessions Court, Ernakulam. Accused No.6 Offered To Become An Approver U/S 306 Of The I.P.C. The Case Of The Absconding Accused Were Entered In The Long Pending Register. The Sessions Court Disposed Of Sessions Case No.474/2006 On 03/04/2009, Convicting Accused Nos.1, 4 And 5 And Accused 8 To 12 And 14 Were Acquitted. 5. Accused Nos.3 And 13 Were Later Produced Before Court And Their Cases Were Taken From The Long Pending Register Which Were Entered As Lp Nos.3/2009 And 21/2008 And Refilled As Sessions Case No.193/2009. Accused No.7 Was Produced Subsequently. His Case Was Entered In The Lp Register As Lp No.21/2008 And The Case Was Renumbered As Sc No.198/2011 And Clubbed With Sc No.193/2009. Accused Nos. 3, 13 And 7 In The Original Charge Were Made As Accused Nos.1 To 3 In Sc No.193/2009. The Court Framed Charge And The Accused Denied Having Committed The Alleged Offences And Faced Trial. Pws 1 To 66 Were Examined On The Side Of Prosecution And They Relied Upon Exts.P1 To P95. M.O.1 To M.O.30 Were The Material Objects Which Had Been Relied Upon. 1st Accused Alone Was Convicted And The Other Two Accused Were Acquitted. 6. The First Accused Was Accused No.3 In Crime No.330/2003. Prosecution Case Is That He Also Participated In The Kidnapping Of The Victim Vidhyadharan Which Ultimately Resulted In The Death Of The Victim. The Motive For The Incident Was The Animosity Of Accused 1 And 2 Towards The Deceased Who Was A Dyfi And Cpi(M) Leader. The Accused Conspired Together Prior To 13/9/2003 And Decided To Kidnap And Murder Vidhyadharan. Prosecution Case Is That He Also Participated In The Kidnapping Of The Victim Vidhyadharan Which Ultimately Resulted In The Death Of The Victim. The Motive For The Incident Was The Animosity Of Accused 1 And 2 Towards The Deceased Who Was A Dyfi And Cpi(M) Leader. The Accused Conspired Together Prior To 13/9/2003 And Decided To Kidnap And Murder Vidhyadharan. In Furtherance Of The Conspiracy, Accused No.1 Arranged A9 To A11 To Keep Watch Over The Movements Of The Deceased. They Got Information That The Deceased Will Be At His Tharavadu House On 12/9/2003 And Will Be Going For Work At Ioc Company, Udayamperoor By About 6 Am On 13/9/2003. Accused Nos.1 To 6 Came In A White Ambassador Car Bearing Registration No. Kl- 07/P/5460 Belonging To The 8th Accused. They Formed An Unlawful Assembly And Were Armed With Lethal Weapons Like Knife, Iron Rod And Swords. They Reached The House Of Accused Nos.9 And 10 At Udayamperoor At About 10.45 P.M. On 12/9/2003. Accused Nos. 4, 5 And 6 Were Arranged By The 13th Accused. The Registration Number Of The Vehicle Was Also Tampered. They Stayed At The Terrace Of The House Of Accused 9 And 10. Accused 1 To 6, 9 And 10 Reached The Place Of Occurrence At About 5 A.M. On 13/9/2003 In The Said Car And Waited For The Deceased. The Deceased Reached The Place At About 6.15 A.M. In A Bicycle. On Getting A Signal From The 2nd Accused Regarding The Identity Of The Deceased, Accused 3 To 6 Caught Hold Of The Deceased And Dragged Him Into The Car. The First Accused Was Driving The Vehicle. They Gagged The Mouth Of The Deceased With Insulation Tape And Attacked Him Inside The Car. They Took Him To A Vacant Bungalow At Athirappilly Estate. Accused No.7 Boarded The Car On The Way To Athirappilly. Accused Nos.1 To 7 Assaulted The Deceased And Death Was Caused By About 2.45 P.M On 13/9/2003. Accused Nos.1 To 7 Set Fire To The Belongings Of The Deceased And A Towel Of The Car. Some Articles Were Thrown To The Nearby Bushes. Accused No.3 Also Snatched Away The Watch Of The Deceased Which Was Worth Rs. 500/-. Accused 1 To 7 Took The Dead Body Of The Deceased In The Boot Of The Car And Abandoned The Same In A Vacant Place At Ambalamedu. Some Articles Were Thrown To The Nearby Bushes. Accused No.3 Also Snatched Away The Watch Of The Deceased Which Was Worth Rs. 500/-. Accused 1 To 7 Took The Dead Body Of The Deceased In The Boot Of The Car And Abandoned The Same In A Vacant Place At Ambalamedu. Accused No.14 Harboured All The Accused At His House And They Cleaned The Car And Their Dresses. 7. The Sessions Court Found That There Was No Evidence In The Case To Take A View That The 2nd And 3rd Accused (Originally 13 And 7) Participated In The Conspiracy As Alleged By The Prosecution. The Sessions Court Relied Upon The Evidence Of Pw1, Pw2, Pw44, Pw46 And Pw48 And Opined That Since Pw2 And Pw44 Deposed About The Participation Of First Accused, His Involvement In The Commission Of Crime Was Evident. It Was Further Found That The Watch Belonging To Vidhyadharan Was Recovered Based On Confession Statement Of The First Accused. The Mahazar Ext.P94, The Statement Ext.P94(A) And Mo18, The Wrist Watch Also Proves The Complicity Of The First Accused In The Offence. It Was Therefore Found That When The Participation Of The First Accused In The Kidnapping Of The Deceased Stands Proved, It Is For Him To Explain The Manner In Which The Crime Was Committed. The Sessions Court Further Observed That The Statement, Ext.P58 Given By The Original 6th Accused, Who Became An Approver Is Also A Material Which Could Be Relied Upon To Prove The Complicity Of The First Accused In The Crime. It Was Observed That Even If Ext.P58 Is Not Taken Into Account, There Is Sufficient Evidence Against The First Accused To Prove The Offences Against Him. Hence, It Was Found That Accused No.1, Who Was Accused No.3 In The Parent Case, Along With Some Identified And Unidentified Persons Formed Themselves Into An Unlawful Assembly With Weapons, Kidnapped Vidhyadharan And Committed Murder. 8. Learned Counsel For The Appellant Argued That Evidence Of Pw2 And Pw44 Cannot Be Relied Upon. Pw2 Has Stated That He Had Seen The Accused On The Date Of Incident Especially In The Morning. He Had Seen The Accused Along With Certain Others Only For 10 To 15 Seconds. He Had No Personal Acquaintance With The Accused At Any Point Of Time Prior To The Said Date. Pw2 Has Stated That He Had Seen The Accused On The Date Of Incident Especially In The Morning. He Had Seen The Accused Along With Certain Others Only For 10 To 15 Seconds. He Had No Personal Acquaintance With The Accused At Any Point Of Time Prior To The Said Date. His Evidence Is That He Had Seen A Few Persons Dragging Vidhyadharan Who Was In His Bicycle Into The Car. Sufficient Light Was Not Available, As It Was Dawn And Hence It Was Not At All Possible For Pw2 To Have A Clear View Of The Accused In That Commotion. Even Assuming That He Had Seen The First Accused After He Was Arrested By The Police, No Identification Parade Was Conducted And Pw2 Identifies The Accused After Six Years In The Box Which Is Totally Unbelievable. There Are Other Discrepancies In The Evidence Which Would Highlight The Falsity Of Evidence Adduced By Pw2. Similarly, Pw44 Had Not Mentioned Anything About The Identity Of The Accused In Her Previous Statement Whereas An Attempt Had Been Made By The Prosecution To Make Her Depose That The 3rd Accused Was Also Present At The Time Of Kidnapping. It Is Further Argued That The Seizure Of Mo18 Wrist Watch Was A Concoction By The Police And Should Not Have Been Relied Upon. The Scene Mahazar Ext.P49 Along With The Sketch Prepared By The Village Officer Read With The Evidence Of Oral Testimony Of Pw2 Clearly Indicates A Drastic Change In The Scene Of Crime Especially In Regard To The Parking Of The Vehicle Where The Incident Had Occurred. Such Discrepancies Are Fatal To The Prosecution Case As There Is A Change In The Place Of Occurrence Which Benefit Should Go To The Accused. It Is Also Argued That Ext.P58 Cannot Be Treated As A Relevant Document Under S.32(3) Of The Evidence Act. In So Far As The 6th Accused Had Given The Statement As An Approver Only After He Was Made An Accused, Section 32 Will Not Apply. The Statement Was Recorded While He Was In Judicial Custody And Therefore His Statement Cannot Be Treated As A Statement In Terms Of Section 32(3), Which Cannot Be Used Against The Accused In The Case. 9. The Statement Was Recorded While He Was In Judicial Custody And Therefore His Statement Cannot Be Treated As A Statement In Terms Of Section 32(3), Which Cannot Be Used Against The Accused In The Case. 9. On The Other Hand, Learned Public Prosecutor Supported The Judgment Of The Sessions Court And Contended That The Involvement Of The Appellant In The Crime Is Clear From The Evidence Of Pw2, Pw15 And Pw44. All These Witnesses Have Identified The Accused/Appellant And There Is Nothing To Discredit Their Evidence. The Recovery Of The Watch Mo18 Is An Additional Piece Of Evidence Against The Accused. That Apart, Ext.P58 Confession Statement Of The Approver Is A Relevant Document Under Section 32(3) Of The Evidence Act And On A Totality Of The Entire Factual Aspects, The Sessions Court Was Justified In Convicting The Accused. 10. Learned Counsel On Either Side Have Also Relied Upon Various Other Judgments Which We Shall Consider While Considering The Arguments Raised By Either Side In The Course Of The Judgment. 11. There Is No Dispute About The Fact That The Deceased Was Abducted And He Was Thereafter Seen Murdered And His Body Was Recovered From A Place At Ambalamedu. The Short Question In The Appeal Is Whether 1st Accused Was Involved In The Kidnapping Of The Deceased. Once He Is Identified As A Person Who Was Involved In The Crime Of Kidnapping, The Rest Would Follow. 12. Before Proceeding Further, In Brief, We Shall Consider The Evidence Of The Witnesses. Pw1 Is A Person Who Knew Vidyadharan. His Evidence Is That On 13/9/2003 At 6 A.M., While He Was Proceeding In His Bicycle Along The Public Road Vaikom-Ernakulam To Reach Ioc Bottling Plant, He Saw One White Ambassador Car Near Pullukattu Veli Temple. Vidhyadharan Was Peddling Behind Him. He Heard A Cry When He Reached Madom Bus Stop Which Is After The Temple. He Saw A Car Speeding Towards North Along The Main Road. He Noticed The Number Of The Car As Kl-07/546. Pw2 Also Witnessed The Same. He Was Informed By Pw2 That 3 Or 4 Persons Had Kidnapped Vidhyadharan In The Car. He Went To Ioc Office And Informed All Other Workers. Thereafter, He Intimated The Kidnapping To The Police. Ext.P1 Is The Fi Statement. He Noticed The Number Of The Car As Kl-07/546. Pw2 Also Witnessed The Same. He Was Informed By Pw2 That 3 Or 4 Persons Had Kidnapped Vidhyadharan In The Car. He Went To Ioc Office And Informed All Other Workers. Thereafter, He Intimated The Kidnapping To The Police. Ext.P1 Is The Fi Statement. He Again Went To The Place Of Occurrence And He Saw One Lungi And Identified The Same As Belonging To Vidhyadharan, Which Is Marked As Mo1. 13. Pw2 Is An Eyewitness To The Above Incident. He Is Also Working In The Bottling Plant Of Ioc. He Deposed That The Incident Happened On 13/9/2003 At 6 A.M. Near Pullukattu Veli Temple. He Saw A Person Uttering “Brown Shirt” And Rushing Towards Eastern Side Of The Road. When Pw2 Reached The Public Road Near The Temple, He Saw A White Ambassador Car On The Eastern Side Of The Road. Person Who Was Uttering The Word Brown Shirt Was Armed With A Sword. Vidhyadharan Was Peddling His Bicycle From South To North Along The Western Side Of Public Road In Front Of The Temple. Four Persons Rushed To The Western Side Of The Road Of Which Three Of Them Were Armed With Swords And Another Person With Iron Rod. They Caught Hold Of Vidhyadharan And Dragged Him To The Back Seat Of The Car. All Of Them Got Into The Car And They Proceeded Towards North. He Did Not See The Number Of The Vehicle. He Informed Pw1 About The Incident. He Went To The Office Of The Political Party And The Matter Was Informed To The Secretary. He Then Went To The Place Of Occurrence. He Identified The Lungi Mo1. He Identified Accused No.1 And Also Mo2, Mo3, Mo4 Swords And Mo5 Iron Rod. 14. Pw3 Speaks About The Blood Stain In The Towels Recovered From The Car. Pw4 Turned Hostile To The Prosecution. Pw5 Has Been Examined To Prove That The Vehicle Was Filled Up With Fuel On 12/9/2003. Pw6 To Pw10 Turned Hostile To The Prosecution. 15. Pw11 Is The Father Of Santhosh, Who Was The 6th Accused In The Case. He Also Knew The 5th Accused Faizal. He Only Deposed That Faizal Had Come And Called Santhosh On 12/9/2003 By About 8.00 P.M. And Came Back After Two Three Days. 16. Pw12 Is The Brother Of Santhosh. Pw6 To Pw10 Turned Hostile To The Prosecution. 15. Pw11 Is The Father Of Santhosh, Who Was The 6th Accused In The Case. He Also Knew The 5th Accused Faizal. He Only Deposed That Faizal Had Come And Called Santhosh On 12/9/2003 By About 8.00 P.M. And Came Back After Two Three Days. 16. Pw12 Is The Brother Of Santhosh. He Deposed That His Mobile Phone Was Used By Santhosh. He Also Knew Faizal Who Had Come And Called Santhosh. He Does Not Remember The Date On Which They Had Gone. 17. Pw13 Is A Person Who Knew Jaison. According To Him, Jaison Is A Member Of Bjp. He Had Produced A Pocket Diary Containing Phone Numbers As Ext.P3. In Ext.P3, Number Of Jaison Had Been Recorded. 18. Pw14 Is The Father-In-Law Of Santhosh. He Deposed That Santhosh Along With Faizal Had Come And Resided In Their House On 13th Night. He Does Not Remember The Year Or Month. It Was Six Years Before. They Went Away In The Morning Itself. 19. Pw15 Is A Person Residing At Thirumukkulam. He Was The President Of Airanikkulam Thirumukkulam Service Cooperative Bank During 2003. Military Personnel Sri. Narayanan Nair Is Residing Near The Bank. He Knew The 14th Accused Shibu. People In The Locality Informed Him That Something Illegal Is Going On In Shibu's House. The Witness Asked The People In The Locality To Keep An Eye On The Same. He Along With Another Person P.K. Subramaniyam Went In Front Of Shibu's House. He Saw A White Ambassador Car In The Front Courtyard Of Shibu's House. Iyekkara Was Written In The Front Glass Of The Car. His House Name Is Iyekkara. The Number Of The Vehicle Was Kl-07 P/5460. He Entered Shibu's House. Shibu Had Stopped Washing Car. There Were Three-Four Persons Along With Him. Door Of The Car Was Opened. He Did Not See Anything Inside. He Had Doubt Whether They Were Trafficking Cannass (Illicit Liquor). He Had Identified Two Of Them In The Earlier Case. The Person Who Was Wearing The Cream Shirt Is One Among The Persons. He Identified The First Accused Who Was Third Accused In Sc No.474/2006. Shibu Was Residing In Narayanan Nair's House On Rent. A Light Yellow Coloured Turkey Was Recovered From Shibu's House. There Was Blood Stains In The Said Turkey. He Had Signed The Mahazar Ext.P4. However, He Can't Identify The Turkey. He Identified The First Accused Who Was Third Accused In Sc No.474/2006. Shibu Was Residing In Narayanan Nair's House On Rent. A Light Yellow Coloured Turkey Was Recovered From Shibu's House. There Was Blood Stains In The Said Turkey. He Had Signed The Mahazar Ext.P4. However, He Can't Identify The Turkey. In Cross Examination, He Said He Had Identified Jaison And Kuttayi. When He Was Asked That He Did Not Identify Jaison In The Earlier Deposition, His Answer Was That He Has Nothing To State. He Further Deposed That He Is A Cpi(M) Candidate Who Had Stood For The Election, Who Is The Member Of 9th Ward. He Became President Of The Co-Operative Bank From The Panel Of Cpi(M). He Knew That Vidyadharan Was A Cpi(M) Man And A Member. In Further Cross Examination, He Stated That Ajish Was Present When They Were Washing The Car. Other Than Shibu, He Did Not Know The Other Persons And He Did Not Tell The Police Any Features To Identify Them. He Deposed That Both The Accused Were Present In Shibu's House At The Relevant Time. However, He Did Not Tell The Police About It. It Was Suggested That He Was Giving False Evidence And That He Was Seeing The First Accused For The First Time In Court Which He Denied. 20. Pw16 Was The General Manager (Commercial) Of Reliance During November 2003. He Had Given The Call Details Of Telephone No.0484 3263806 Which Was Marked As Ext.P5 Along With Ext.P6 Covering Letter. The Application Form Was Marked As Ext.P7. The Subscriber's Id And Copy Of The Ration Card Is Produced As Exts.P8 And P9. The Mobile Phone Is Marked As Mo8. The Letter Which Shows That Temporary Numbers Will Be Given Is Marked As Ext.P12 Subject To Objection. The Call Details Of 0484 3120133 Is Marked As Ext.P11 Subject To Objection. Copy Of An Application Form Received From The Bombay Office Is Marked As Ext.P13. 21. Pw17 Is The Officer Of Airtel Who Is Examined To Prove The Call Details Relating To The Mobile Phone. Pw18 Is An Officer Of Plantation Corporation Athirappilly. He Is Examined To Prove The Fact That He Saw The Car Involved In The Crime On 13/9/2003. Pw19 Also Turned Hostile. Pw20 Is Examined To Prove That The Vehicle Was Sold As Per Ext.P17. Pw21 Has Deposed That He Had Seen The Vehicle Being Washed On 15/9/2003. Pw18 Is An Officer Of Plantation Corporation Athirappilly. He Is Examined To Prove The Fact That He Saw The Car Involved In The Crime On 13/9/2003. Pw19 Also Turned Hostile. Pw20 Is Examined To Prove That The Vehicle Was Sold As Per Ext.P17. Pw21 Has Deposed That He Had Seen The Vehicle Being Washed On 15/9/2003. Pw22 Is The Photographer Who Had Taken The Photographs Of The Vehicle. Ext.P19 Series Are The Photographs And Ext.P20 Series Are The Negatives. Pw23 Turned Hostile. Pw24 Was Examined To Prove Ext.P23, The Sale Agreement By Which The Vehicle Was Transferred To One James, Who Thereafter Transferred The Vehicle To Accused No.8. Pw25 Proves That He Transferred The Vehicle To Accused No.8 And Marked Mo6 Series. Pw26 Is The Hotel Owner Who Deposed Regarding The Fact That Some Of The Accused Had Stayed In The Hotel. Pw27 Proves Ext.P25 Mahazar And Recovery Of Mo5. Pw28 Proves Recovery Of Mo9 To Mo12 And Ext.P26, Pw29 Proves The Seizure Mahazar Exts.P27 And P28 And Pw30 Proves Ext.P29 And The Material Objects Recovered As Mo12 To Mo16. Pw31 Proves Seizure Mahazar Ext.P30 And Identifies Mo17. 22. Pw32 Is The Doctor Who Conducted Autopsy. Ext.P31 Is The Post Mortem Certificate. As Per Ext.P31, The Following Were The Ante Mortem Injuries Suffered By The Deceased. “1. Lacerated Wound 2x1x1cm On The Left Side Of The Top Of Head Just Above The Parietal Eminence. 2. Abraded Contusion Over An Area 5x4x1cm On The Left Side Of The Forehead Incorporating A Lacerated Wound 1x0.5x0.5cm In Its Lower Extent, 4cm Above The Outer End Of Eye Brow. 3. Abraded Contusion 5x2x1cm On The Right Side Of Forehead, Just Above The Outer End Of Eye Brow. 4. Abraded Contusion 5x3x1cm On The Right Malar Eminence Of The Face. 5. Abraded Contusion 6x4x1cm On The Left Malar Eminence Of The Face. 6. Lacerated Wound 3x1x0.5cm On The Front Of The Root Of The Left Ear And Adjoining Areas Of Its Lobule. 7. Abraded Contusion 3x2x0.3cm On The Back Of Left Ear. 8. Lacerated Wound 2.5x1x1cm On The Inner Aspect Of The Middle Of Upper Lip. 9. Contusion 2x1x0.5cm On The Inner Aspect Of The Upper Lip Just Inner To The Left Corner Of The Mouth. The Tooth Numbers 11, 21 And 22 Were Missing. The Edges Of Their Sockets Were Lacerated And Cavity Filled With Blood Cots. 8. Lacerated Wound 2.5x1x1cm On The Inner Aspect Of The Middle Of Upper Lip. 9. Contusion 2x1x0.5cm On The Inner Aspect Of The Upper Lip Just Inner To The Left Corner Of The Mouth. The Tooth Numbers 11, 21 And 22 Were Missing. The Edges Of Their Sockets Were Lacerated And Cavity Filled With Blood Cots. On Dissection, The Whole Areas Of The Scalp Tissue Showed Contusion In Its Full Thickness Sparing The Right Parietal Region. Skull Bone Was Intact. Haemorrhagic Contusions Over An Area (A) 5x3x1cm On The Left Tempero Parietal Region. (B) 4x2x1cm On The Right Frontal Region. (C) 3x3x2cm On The Undersurface Of The Frontal Lobe. Subdural And Subrachnoid Spaces Of The Brain Showed Diffuse Haemorrhages. Sulci Of The Brain Narrowed And Its Gyri Flattened. 10. Multiple Abraded Contusions Over An Area 26x24 Cm Involving The Front And Sides Of Abdomen, Its Upper Extent Being 5cm Below The Stomach Pit. On Dissection, The Coils Of Intestine Showed Contusion At Several Sites. The Undersurface Of The Right Lobe Of The Liver Showed Laceration 10x5x3cm. Spleen Showed Laceration 3x1x1cm. Abdominal Cavity Contained 1.7 Litres Of Blood With Clots. 11. Multiple Crescentic Abrasions Over An Area 4x2cm Ranging In Sizes From 0.5x0.1cm To 0.8x0.2cm Clustered Together On The Left Side Of Front Of Neck, 5cm Below The Lower Jaw And 8cm Outer To Midline. 12. Abrasion 4x3cm On The Right Side Of The Neck, 6cm Below The Angle Of Lower Jaw. 13. Liner Abrasion 3x0.1 Cm On The Right Side Of The Neck, 4cm Below Ear Lobule. On Dissection The Subcutaneous Tissues Underneath Injury Numbers 11, 12 And 13 Showed Infiltration Of Blood. The Muscles Of The Neck Showed Heamorrhage At Many Places. 14. Fracture Of The 8th And 9th Ribs Of The Right Side Near Their Vertebral End. 15. Abraded Contusion 7x4x2cm On The Right Side Of The Top Of Shoulder Just Outer To The Root Of Neck. 16. Abraded Contusion 5x3x2cm On The Top Of Right Shoulder, 8cm Outer To The Root Of Neck. 17. Linear Abrasion 26x0.2cm Involving The Back Of Right Shoulder And Arm. Its Lower End Was 16cm Above The Elbow. 18. Contusion 5x3x2cm On The Outer Aspect Of Right Elbow. 19. Multiple Small Abrasion Over An Area 6x5cm On The Outer Aspect Of Right Forearm, 4cm Below The Elbow. 20. Abrasion 3x2cm On The Back Of Right Forearm Just Above The Wrist. 21. Its Lower End Was 16cm Above The Elbow. 18. Contusion 5x3x2cm On The Outer Aspect Of Right Elbow. 19. Multiple Small Abrasion Over An Area 6x5cm On The Outer Aspect Of Right Forearm, 4cm Below The Elbow. 20. Abrasion 3x2cm On The Back Of Right Forearm Just Above The Wrist. 21. Lacerated Wound 1.5x0.5x0.5cm On The Back Of Right Index Finger Just Above The Nail. 22. Multiple Small Abrasions Over An Area 9x6cm On The Outer Aspect Of Right Thigh, 7cm Above The Knee. 23. Multiple Small Abrasions Over An Area 6x5cm On The Front Of Right Knee. 24. Lacerated Wound 1x0.5x0.5 On The Front Of Right Leg 5cm Below The Knee. 25. Multiple Small Abrasions Over An Area 12x7cm On The Front Of Right Leg 9cm Above Ankle. 26. Abraded Contusion 5x4x2cm On The Front Of Right Ankle. 27. Multiple Small Abrasions Over An Area 8x4cm On The Top Of Right Foot 4cm In Front Of The Ankle. 28. Abrasion 6x5cm On The Front Of Left Ankle. 29. Abrasion 5x4cm On The Front Of Left Knee. 30. Abrasion 6x4cm On The Outer Aspect Of Left Forearm, 5cm Above The Wrist. 31. Contusion 4x3x2cm On The Front Of Left Elbow. 32. Contusion 7x4x4cm On The Back Of Left Arm, 5cm Above The Elbow. 33. Abraded Contusion 10x6x2cm On The Top Of Left Shoulder, 5cm Outer To The Root Of Neck. 34. Abraded Contusion 10x8x2cm Over The Left Shoulder Blade. 35. Multiple Small Abrasions Over An Area 13x10 Cm Over The Right Shoulder Blade And Adjoining Areas Of Trunk. 36. Abrasion 17x8cm Involving Both Sides Of Back Of Trunk, 5cm Above The Natal Cleft. 37. Abrasion 5x4cm On The Right Buttock. 38. Abrasion 6x4cm On The Left Buttock.” 23. Pw33 Proves Ext.P3 Wound Certificate Of The 5th Accused. Pw34 Proves Exts.P35 And P36 Mahazars. Pw35 Proves Exts.P38 To P41 Mahazars. Pw36 Is The Retired Jailer. He Was The Special Sub Jail Superintendent On 5/7/2003. He Identifies Ajish And Nazeer, Accused Nos.1 And 2. He Deposed That They Were Inmates Of Kottayam Special Sub Jail From 11/8/2003 To 25/8/2003. They Were The Accused In Crime No.358/2003. Pw37 Is A Police Photographer Who Proves Ext.P42 Photographs And Ext.P43 Negative In Regard To The Scene Of Occurrence. Pw38 Is The Village Officer Who Had Prepared Ext.P44 Site Plan From Where The Victim Was Kidnapped. He Deposed That They Were Inmates Of Kottayam Special Sub Jail From 11/8/2003 To 25/8/2003. They Were The Accused In Crime No.358/2003. Pw37 Is A Police Photographer Who Proves Ext.P42 Photographs And Ext.P43 Negative In Regard To The Scene Of Occurrence. Pw38 Is The Village Officer Who Had Prepared Ext.P44 Site Plan From Where The Victim Was Kidnapped. Pw39 Is The Village Officer Who Prepared The Site Plan Ext.P45 From Where The Victim's Body Was Found. Pw40 Is The Assistant Sub Inspector Of Police. He Is Examined To Prove A Complaint Which Was Filed By The Victim Against The First Accused. The Complaint Is Marked As Ext.P46. Pw41 Is Examined To Prove Ext.P47, A Notice, Ext.P48 Mahazar, Ext.P49 Mahazar And He Has Identified Mo1. Pw42 Is Examined To Prove The Enmity Between Jaison (First Accused In Sc No.474/2006) And Vidhyadharan. Pw43 Is The Wife Of Vidhyadharan Who Also Deposes With Reference To The Enmity Between Jaison And Vidhyadharan. She Also Identified Mo18 Watch, Which The Deceased Was Wearing On The Day Of His Abduction. 24. Pw44 Deposed That She Knew Accused 2 And 3 And She Saw All The Three Accused On 13/9/2003 At About 5.45 A.M In The Waiting Shed Of Madom Bus Stop. She Also Saw The White Ambassador Car Belonging To Jaison, Parked On The Eastern Side Of The Road. She Identified The First Accused. Pw45 Turned Hostile To The Prosecution. Pw46 Is A Witness Who Deposes That He Had Seen The Ambassador Car, Heard A Cry And Thereafter Saw The Abduction. He Identifies The Lungi Mo1. Pw47 Is A Person Who Had Gone To The Site After Hearing The Abduction. Pw48 Has Given Evidence Stating That He Saw First Accused And Another Accused In The Crime Scene. Pw49 Is An Attestor To Exts.P51 And P52 And Identifies Mo4 And Mo19. Pw50 Is An Attestor To Ext.P53 And Identifies Mo3. Pw51 Is Running A Computer Centre. He Turned Hostile. He Deposed That He Had Not Seen Ext.P47. He Had Taken A Photostat Copy Of A Notice Relating To Vidyadharan. He Does Not Know Who Had Come To Take The Photostat Copy. After Declaring Him Hostile, Suggestion Put Was That The Print Was Taken By Jaison (First Accused) In The Former Case. 25. Pw52 Identifies Mo18. Pw53 And Pw54 Have Turned Hostile. Pw55 Is An Attestor To The Mahazar Ext.P55 For Recovery Of Jaison's Letter. He Does Not Know Who Had Come To Take The Photostat Copy. After Declaring Him Hostile, Suggestion Put Was That The Print Was Taken By Jaison (First Accused) In The Former Case. 25. Pw52 Identifies Mo18. Pw53 And Pw54 Have Turned Hostile. Pw55 Is An Attestor To The Mahazar Ext.P55 For Recovery Of Jaison's Letter. Pw56 Is A Witness To The Inquest Report. He Proves Exts.P56 And P57 Mahazar Of The Place Where The Dead Body Was Found. Pw57 Is A Witness To The Recovery Of Mo18 Watch. Pw58 Turned Hostile To The Prosecution. Pw59 Has Recorded The 164 Statement. Pw60 Has Taken The Samples From The Scene Of Occurrence. Pw61 Has Registered Crime No.358/03. Pw62 Proves Ext.P46 Complaint And Ext.P69 Mahazar. Pw63 Is The Sub Inspector Of Police Who Had Arrested Accused 6 And 11. Pw64 Has Registered Ext.P1 Crime. He Had Also Prepared The Scene Mahazar Ext.P4(A) And Identified Mo1. Pw65 Is The Circle Inspector Of Police, Hill Palace Who Conducted Part Of The Investigation. He Identifies Ext.P56 By Which Material Objects Were Recovered. Pw66 Is The Circle Inspector Of Police Who Recovered Mo18 Watch And Prepared Exts.94 And P94(A). 26. From The Evidence Of Pw32, The Doctor Who Conducted Post Mortem, The Cause Of Death Of The Deceased Was On Account Of Multiple Injuries He Had Sustained. He Had Also Stated That The Injuries Can Occur With The Weapons That Had Been Produced As Mo2 To Mo5. One Of The Accused Has Also Turned As An Approver During The Pendency Of The Case When It Was Tried Initially. Further, Some Of The Accused Had Already Been Convicted By The Sessions Court. Therefore, The Factum Of Kidnapping And The Subsequent Death Of Vidhyadharan Is Rather Proved By The Evidence Adduced On Behalf Of The Prosecution. 27. The Question To Be Considered Would Be, Whether From The Infirmities That Had Been Pointed Out By The Defence, The Conviction Of The Appellant Is Justified Or Not. The Involvement Of The Appellant In The Crime Is Sought To Be Established By Three Circumstances. One Is Identification Of The Accused By Pw2, Pw15 And Pw44. Secondly, Recovery Of Mo18 Watch Belonging To The Deceased On The Basis Of Confession Statement Of The Accused And Thirdly Proof Of Ext.P58 Which Is Treated To Be Relevant Under Section 32(3) Of The Evidence Act. 28. One Is Identification Of The Accused By Pw2, Pw15 And Pw44. Secondly, Recovery Of Mo18 Watch Belonging To The Deceased On The Basis Of Confession Statement Of The Accused And Thirdly Proof Of Ext.P58 Which Is Treated To Be Relevant Under Section 32(3) Of The Evidence Act. 28. Counsel For Appellant Points Out Various Infirmities And Contradictions In The Evidence. The Argument Is That, The Sketch Prepared By The Village Officer And The Scene Mahazar, Coupled With The Oral Testimony Of Pw2 Clearly Points To The Fact That Pw2 Was A Witness Who Had Been Planted To Give Evidence Against The Accused. Therefore, First We Shall Analyse The Evidence Of Pw2. In His Chief Examination, He States That, On 13/9/2003, At About 6 A.M., He Along With Deceased Vidhyadharan Was Proceeding Towards Their Company (Ioc Plant). When They Reached In Front Of Pullukatt Veli Narasimha Swamy Temple And Proceeded Towards North, A Person From The Western Side Ran To The Eastern Side By Shouting “Brown Shirt”. There Is A Road Towards The East Facing The Mud Road. He Saw An Ambassador Car And It Was Kept Started. The Person Who Ran From The Western Side Of The Road To East Was Having A Sword With Him. At That Time, Vidhyadharan Was Proceeding From South To North On The Western Side. Suddenly, Four Persons Ran From The Western Side Of The Car Of Which Three Of Them Had Swords And One Had An Iron Rod. They Forcibly Took Hold Of Vidhyadharan And He Was Taken To The Eastern Side Of The Road And He Was Pushed Inside The Back Seat Of The Car. One Of The Assailants Pushed The Cycle To One Side Of The Road. He Also Entered The Car And They Proceeded Towards North. He Informed The Matter To Pw1 And Thereafter To Their Secretary Prasad. He Identifies Mo1, The Lungi, Which Vidhyadharan Was Wearing At The Relevant Time. He Identifies The Swords Mo2, 3 And 4 And Mo5 The Iron Rod Which Were In The Hand. In Cross Examination, He States That He Was Acquainted With Vidhyadharan Since His Childhood And They Were Working Together Since 1991 In The Same Shift. The Distance From The Temple To The Company Is About 1 Km. He Deposed That The Incident Happened In The Main Road Where Vehicles Normally Ply. He Knew One Of The Persons Who Kidnapped Vidhyadharan. In Cross Examination, He States That He Was Acquainted With Vidhyadharan Since His Childhood And They Were Working Together Since 1991 In The Same Shift. The Distance From The Temple To The Company Is About 1 Km. He Deposed That The Incident Happened In The Main Road Where Vehicles Normally Ply. He Knew One Of The Persons Who Kidnapped Vidhyadharan. He Is No More And In So Far As Others Are Concerned, He Was Seeing Them For The First Time. He Did Not Feel It Necessary To Inform The Police Immediately. Police Station Is 9 Kms Away. He Did Not Feel It Necessary To Take A Taxi Or Auto For Going To The Police Station. He Further States That Vidhyadharan Was A Cpi(M) Man And He Was A Leader Of Dyfi. He Further Deposed That The Police Had Shown The Accused And Their Names And Address Were Given By The Police. Police Had Shown Him Four Accused And He Does Not Remember The Date When He Had Seen The Accused. He Does Not Remember Whether He Saw Them Together Or Not. Though He Was Asked Whether First Accused Along With Others Were Shown Within One Month, He Deposed That He Does Not Remember. The Cross Examination Proceeded On The Basis That Police Had Shown Him The First Accused In The Court Verandah, His Answer Was That He Does Not Remember. He Also Stated That On The Eastern Side Of The Temple, There Is Street Light And Tube Light. He Saw The Accused In The Light Available From The Street Light As Well As Natural Light. He Deposed That He Had Clearly Seen Four Persons. However, He Informed Pw1 That He Saw Certain Persons Kidnapping Vidhyadharan. But He Did Not Say The Number Of Persons To Prasad Also. Vidhyadharan Tried To Escape. Vidhyadharan Was Taken Along With The Cycle And Everything Was Over Within 10 To 15 Seconds. Incident Occurred On The Western Side Of The Road. He Had Not Shown The Scene Of Occurrence To The Police. He Came Back At About 8 A.M. After Having Coffee. He Went Back At 2 P.M. For Having Lunch. Thereafter The Circle Inspector Had Come. He Was Summoned To The Police Station At About 11 A.M. He Had Not Informed The Police That He Had Seen The Assailants. He Had Not Shown The Scene Of Occurrence To The Police. He Came Back At About 8 A.M. After Having Coffee. He Went Back At 2 P.M. For Having Lunch. Thereafter The Circle Inspector Had Come. He Was Summoned To The Police Station At About 11 A.M. He Had Not Informed The Police That He Had Seen The Assailants. Suggestion Was That Since There Was No Eye Witness, The Political Party Had Made Him A Witness To The Incident, Which He Denied. He Admits The Fact That The Incident Occurred In The Main Road Which Is By The Side Of The Footpath On The Southern Side Of The Mud Road Where There Were Several Bushes. The Omission That Was Pointed Out Is With Reference To His Earlier Statement That Vidhyadharan Was Riding The Cycle On The Western Side Of The Road. He Also Stated That He Saw Three Persons Getting Down From The Car And He Does Not Know The Reason Why The Police Had Not Recorded The Same. The Defence Case Was That Pw2 Has Reached The Site Only After The Incident And That He Was Giving False Evidence. In Re-Examination He Stated That The Cycle Was Lying On The Eastern Side Of The Road. Apparently, From The Evidence Of Pw2, The Only Omission That Had Been Brought About Was With Reference To The Statement That Vidhyadharan Was Traveling Through The Western Side Of The Road And The Assailants Had Caught Him On The Western Side And Dragged Him To The Car On The Eastern Side. 29. Reference Is Made To The Sketch Ext.P44 Prepared By The Village Officer Who Is Examined As Pw38. In Cross Examination, He States That The Plan Is Not In Accordance With The Scale. On The Eastern Side Of The Scene Of Occurrence, There Is Grass And Shrubs And The Area Is Lying Below The Road Level. The Distance Shown In Ext.P44 Is Accurate. The Tar Road Is Within The Red Lines Shown In Ext.P42 And On Either Side It Is Mud Road. There Are Two Electric Posts Having Light In The Area. As Per The Scene Mahazar, The Electric Post Is Available Only 17.14 Meters Away Which He Admits. Scene Of Occurrence Is In The Mud Road On The Eastern Side. During Re-Examination He States That There Is Light On The Electric Post, Situated On The North Eastern Side. There Are Two Electric Posts Having Light In The Area. As Per The Scene Mahazar, The Electric Post Is Available Only 17.14 Meters Away Which He Admits. Scene Of Occurrence Is In The Mud Road On The Eastern Side. During Re-Examination He States That There Is Light On The Electric Post, Situated On The North Eastern Side. He Had Seen It, Confirmed It And Had Recorded In Ext.P44. 30. Ext.P44 Is The Sketch Which Would Show That The Scene Of Crime Is 14.33 Meters On The South Of The Mud Road Which Lies On The Eastern Side Of The Main Road. The Argument Is That The Evidence Of Pw2 That The Incident Occurred In Front Of The Temple Does Not Tally With The Scene Mahazar. The Temple Is On The North Western Side Of Mudiraparambu Colony Road Which Road Is 28.4 Meters From The Scene Of Occurrence. Pw2 States That The Vehicle Was Parked On The Side Of The Mud Road On The Eastern Side. Therefore, It Is Evident That There Is A Shifting Of The Scene Of Occurrence Which Will Belie The Prosecution Case. 31. In Ext.P49 Scene Mahazar, The Scene Of Occurrence Is Stated To Be On The Eastern Side Of The Road Which Is 4.34 Meters From The Optical Fibre Cable Box Situated On The Eastern Side Of The Road Towards West And On The Eastern Side Of The Tar Road. It Is Also Stated That The Scene Of Occurrence Is On The Southern Side Of Sree Narasimha Swamy Temple Which Is On The Western Side Of Vaikom-Tripunithura Road And On The Eastern Side Of The Road. 32. Though It Is Contended By The Learned Counsel For Appellant That There Was Considerable Difference In The Evidence Of Pw2 With Reference To The Scene Of Occurrence As Evident From Ext.P44 Plan Prepared By The Village Officer And Ext.P49 Scene Mahazar, We Do Not Think That There Is Any Infirmity In The Said Evidence Which Warrants Disbelieving Pw2 Or Forming An Opinion That The Scene Of Occurrence Is Different From What Has Been Projected By The Prosecution. Pw2 In His Evidence Has Clearly Spoken To The Fact That When Vidhyadharan Reached In Front Of The Temple And Was Proceeding Towards North, Somebody From The Western Side Shouted The Words “Brown Shirt” And Ran From The Western Side Of The Road To The East. Pw2 In His Evidence Has Clearly Spoken To The Fact That When Vidhyadharan Reached In Front Of The Temple And Was Proceeding Towards North, Somebody From The Western Side Shouted The Words “Brown Shirt” And Ran From The Western Side Of The Road To The East. His Evidence Is That The Car Was By The Side Of A Mud Road Which Was On The Eastern Side. Car Was Kept In A Starting Position. Immediately, 4 Persons Ran From The Side Of The Car To The Western Side With Weapons. Vidhyadharan Was Forcibly Dragged To The Eastern Side Of The Road And He Was Pulled To The Backseat Of The Car. As Evident From Ext.P44, The Distance Between The Mud Road And The Optical Fibre Cable Point Is Only 14.33 Meters. Pw2 Also States That He Had Mentioned To The Police That Vidhyadharan Was On The Western Side Of The Road. This Infirmity By Itself Would Not Indicate That The Incident Had Not Happened At All. Pw2 Is An Eye Witness. He Was Stating The Facts Which He Had Noticed After A Considerably Long Time. Therefore, Merely For The Reason That According To Him The Car Was By The Side Of Mud Road And, In The Scene Of Occurrence It Is Stated To Be Near To The Optical Fibre Cable Line About 14.33 Meters Away Can Never Be A Reason To Discard The Evidence Of Pw2. It Is Settled Law And As Held By A Long Line Of Judgments That Minor Omissions In The Deposition Of Witnesses Who Had Seen The Assailant's Escape From The Scene Of Crime Is Immaterial (Bakhshish Singh V. State Of Punjab [ (2013) 12 Scc 187 ]. Reference Was Made By The Apex Court To An Earlier Judgment In Sampath Kumar V. Inspector Of Police [ (2012) 4 Scc 124 ], Wherein It Was Held That Only Such Omissions Which Amount To Contradiction In Material Particulars Can Be Used To Discredit The Testimony Of The Witness. The Omission In The Police Statement By Itself Would Not Necessarily Render The Testimony Of Witness Unreliable. Only When The Version Given By The Witness Before Court Is Different In Material Particulars From That Disclosed In His Earlier Statements, The Case Of Prosecution Becomes Doubtful. The Omission In The Police Statement By Itself Would Not Necessarily Render The Testimony Of Witness Unreliable. Only When The Version Given By The Witness Before Court Is Different In Material Particulars From That Disclosed In His Earlier Statements, The Case Of Prosecution Becomes Doubtful. Minor Contradictions Are Bound To Appear In The Statements Of Truthful Witnesses As Memory Sometimes Plays False And The Sense Of Observation Differ From Person To Person. In The Said Judgment, Apex Court Also Relied Upon Another Judgment In Sunil Kumar Sambhudayal Gupta V. State Of Maharashtra [ (2010) 13 Scc 657 ], Wherein It Is Held That While Appreciating The Evidence, The Court Has To Take Into Consideration Whether The Contradictions/Omissions Had Been Of Such Magnitude That They May Materially Affect The Trial. Minor Contradictions, Inconsistencies, Embellishments Or Improvements On Trivial Matters Without Effecting The Core Of The Prosecution Case Should Not Be Made A Ground To Reject The Evidence In Its Entirety. It Is Further Held That When The Trial Court After Going Through The Entire Evidence Had Formed An Opinion About The Credibility Of The Witnesses, The Appellate Court In Normal Course Would Not Be Justified In Reviewing The Same Again Without Justifiable Reasons. 33. Yet Another Contention Urged Is Regarding The Identification Of The First Accused. Contention Of The Defence Is That Pw2 Had Never Seen The First Accused Before The Aforesaid Incident. He Had Seen Four Persons Whom He Does Not Know, Only For A Brief Period, I.E., 10 To 15 Seconds. An Electric Post Was Situated 3.68 Meters Towards North. Another Electric Post Was Situated 17.14 Meters Towards South. It Was Only Dawn Time Where The Visibility Is Much Less. Pw2 Could Not Give Any Indication Regarding The Physical Features Of The Accused To Identify Him Nor Has He Stated Anything Before The Police. The Police Had Come To The Scene Of Occurrence Immediately After The Incident Was Reported. Pw2 Did Not Volunteer To Give Evidence. Later, He Was Set Up As A Witness By The Prosecution. No Identification Parade Was Conducted Even After The Accused Was Apprehended. All These Instances Clearly Point Out To The Fact That It Is Totally Unsafe To Rely Upon The Oral Testimony Of Pw2. 34. Other Than Pw2, Pw15 And Pw44 Have Also Given Evidence Against The Accused. Later, He Was Set Up As A Witness By The Prosecution. No Identification Parade Was Conducted Even After The Accused Was Apprehended. All These Instances Clearly Point Out To The Fact That It Is Totally Unsafe To Rely Upon The Oral Testimony Of Pw2. 34. Other Than Pw2, Pw15 And Pw44 Have Also Given Evidence Against The Accused. Pw15 Is A Person Who Has Given Evidence Stating That He Had Seen The Accused Cleaning The Car After The Alleged Incident. Pw44 Is Also A Person Who Claims To Have Seen The Accused In The Locality Before The Incident. As Rightly Pointed Out By The Learned Counsel For The Appellant, Pw15 And Pw44 Had Not Given Such A Statement Before Police At The Time Of Recording Their 161 Statement. If Pw15 And Pw44 Have Actually Identified The Accused At The Relevant Time, Non Recording Of Their Statement Regarding Identity Of The Accused Is Of Serious Concern And Is A Patent Omission Which Amounts To Contradiction. Therefore, We Are Of The View That It Is Not Safe To Rely Upon The Evidence Of Pw15 And Pw44 As Far As Identity Of The Accused And His Complicity In The Crime Are Concerned. 35. In Other Words, The Only Material Available To Pinpoint The Accused To The Crime Is The Oral Testimony Of Pw2, Let Alone Other Circumstances Which We Will Be Considering Later. The Main Contention Urged By The Learned Counsel Is That No Identification Parade Was Conducted And Therefore Identifying An Accused, Whom The Witness Have No Previous Acquaintance, After Several Years Have To Be Viewed With Suspicion. Further, The Witness Himself Has Stated That The Police Had Shown Him In Court. 36. Reference Is Made To The Judgment Of The Apex Court In Laxmipat Chorariya And Others V. State Of Maharashtra ( Air 1968 Sc 938 ). It Was Held That Showing Of A Large Number Of Photographs To A Witness And Asking Him To Pick Out The Photograph Of The Suspect Is A Proper Procedure, But, Showing A Photograph And Asking The Witness Whether It Is Of The Offender Is Improper. If The Intention Is To Rely On Identification Of The Suspect By A Witness, His Ability To Identify Should Be Tested Without Showing Him The Suspect Or His Photograph Or Furnishing Him The Data For Identification. Showing A Photograph Prior To The Identification Makes The Identification Worthless. 37. If The Intention Is To Rely On Identification Of The Suspect By A Witness, His Ability To Identify Should Be Tested Without Showing Him The Suspect Or His Photograph Or Furnishing Him The Data For Identification. Showing A Photograph Prior To The Identification Makes The Identification Worthless. 37. Reliance Is Also Placed On The Judgment In Mohanlal Gangaram Gehani V. State Of Maharashtra [1982 Scc (Cri) 334]. The Apex Court In The Above Case Held That When The Witness Admits That He Had Not Seen The Accused Or Any Of The Three Accused Before The Date Of Incident And That He Had Seen All Of Them For The First Time At The Time Of Incident, And He Admits That The Names Of The Accused Were Given To Him By The Police, And He Was Identified For The First Time In Court, In The Absence Of A Test Identification Parade, Evidence Of Such Witness Was Valueless And Could Not Be Relied Upon. In The Said Judgment, The Apex Court Also Relied Upon An Earlier Judgment In V.C. Shukla V. State (Delhi Admn.) [ (1980) 2 Scc 665 ] And A Federal Court Decision In Sahdeo Gosain V. King Emperor {Air 1944 Fc 38}. 38. Oma Alias Omprakash And Another V. State Of Tamil Nadu ( Air 2013 Sc 825 ) Was Also A Case In Which The Apex Court Observed That The Witnesses Did Not Know The Accused Earlier And Therefore The Accused Could Be Identified Only Through A Test Identification Parade. In Mohammed Iqbal M. Shaikh V. State Of Maharashtra [ (1998) 4 Scc 494 ], The Apex Court Held That, If The Witness Did Not Know The Accused Persons By Name, But Could Only Identify From Their Appearance, Then A Test Identification Parade Was Necessary, So That, The Substantive Evidence In Court About The Identification, Which Is Held After A Fairly Long Period, Could Get Corroboration From The Identification Parade. If The Police Shows The Accused Persons In The Police Lockup To The Identifying Witness, Then The So-Called Identification Loses Its Value, Inasmuch As It Is Only Because Of The Police Showing The Persons, That The Witness Is Being Able To Identify The Alleged Accused. If The Police Shows The Accused Persons In The Police Lockup To The Identifying Witness, Then The So-Called Identification Loses Its Value, Inasmuch As It Is Only Because Of The Police Showing The Persons, That The Witness Is Being Able To Identify The Alleged Accused. In Ravindra Alias Ravi Bansi Gohar V. State Of Maharashtra And Others [ (1998) 6 Scc 609 ] The Apex Court Placing Reliance On Laxmipat Choraria (Supra) Held That The Identification Parades Belong To The Investigation Stage And They Serve To Provide The Investigating Authority With Materials To Assure Themselves If The Investigation Is Proceeding On The Right Lines. It Is Through The Identification Parade That The Investigating Agency Is Required To Ascertain Whether The Persons Whom They Suspect To Have Committed The Offence Were The Real Culprits. Such Being The Purpose, If The Investigating Agency Shows The Photographs Of The Suspects Whom They Intended To Place In The Identification Parade, It Becomes Farcical. In Ravi Alias Ravichandran V. State Represented By Inspector Of Police [(2007) 15 Scc 372], It Was Held That When The Accused Was Not Named In The Fir, Nor Any Identification Parade Was Conducted To Identify Him By The Witnesses, It Is Rather Impossible To Identify The Accused Person When He Is Produced For The First Time In Court, I.E., After 10 Years, Since He Was Unknown To The Witnesses. 39. Learned Counsel Also Referred To The Evidence Of Pw2 To Emphasise That No Identification Parade Was Conducted By The Police. In Cross Examination, Several Questions Were Asked Regarding The Requirement Of Light. Pw2 Had Indicated That There Was Enough Light To See The Assailants. However, He Had Deposed That He Could See Them Only For 10-15 Seconds Within Which Time The Entire Incident Had Been Over. Immediately, They Left In The Car. He However Submitted That He Did Not Tell The Police Officers Who Had Come To The Site, That He Had Seen The Incident And He Had Not Given Any Features Of The Assailants For Identification. He Deposed That He Knew One Person Who Is No More. He Further Deposed:- “MALAYALAM” 40. Apparently, The First Accused In The Case Was Absconding. The Evidence Of Pw2 That The Police Had Shown The Accused And The Police Had Informed Him About Their Name And Addresses Was During The Time When The Crime Was Initially Being Investigated. He Deposed That He Knew One Person Who Is No More. He Further Deposed:- “MALAYALAM” 40. Apparently, The First Accused In The Case Was Absconding. The Evidence Of Pw2 That The Police Had Shown The Accused And The Police Had Informed Him About Their Name And Addresses Was During The Time When The Crime Was Initially Being Investigated. Even The Defence Had Made A Suggestion That Four Persons Including Ajish Were Shown To The Witness Within One Month Itself, The Answer Given By The Witness Was That He Does Not Remember. However, The Witness Further Deposes That He Does Not Remember Whether The Police Had Shown The First Accused In The Veranda Of The Court Two Days Back. Thereafter, He Says That The Police Officer Had Shown The First Accused In The Veranda Of Court Day Before Yesterday. But Pw2 Denies That He Is Identifying The Accused Only On Account Of The Same. The Point To Be Considered Is Whether Identification Of The Accused Is Proper Or Not. 41. Pw2 Has Seen The First Accused Only For The First Time At The Time When The Kidnapping Has Taken Place. That There Was No Light And Therefore The Accused Could Not Be Seen Clearly Cannot Be Accepted. When Pw2 Has Categorically Stated That He Has Seen The Accused And He Had Identified Him In The Police Station As Well As In The Court, There Is No Reason To Doubt His Version. 42. Whether A Test Identification Parade (Tip) Is Required In A Case, Depends On The Facts Of Each Case. Conducting Tip Is Only To Assist The Investigating Officer To Identify The Accused. The Substantive Evidence Of Identification Happens In Court, At The Time Of Trial. 42. Whether A Test Identification Parade (Tip) Is Required In A Case, Depends On The Facts Of Each Case. Conducting Tip Is Only To Assist The Investigating Officer To Identify The Accused. The Substantive Evidence Of Identification Happens In Court, At The Time Of Trial. In Mukesh V. State (Nct Of Delhi), [ (2017) 6 Scc 1 ], A Three Bench Judge Of The Apex Court While Analysing The Case Law On The Requirement Of Tip, Observed That In Matru V. State Of U.P. [ (1971) 2 Scc 75 ], It Was Held That Identification Test Is Primarily Meant For The Purpose Of Helping The Investigating Agency With An Assurance That Their Progress With The Investigation Of An Offence Is Proceeding On The Right Lines, In Santokh Singh V. Izhar Hussain [ (1973) 2 Scc 406 ], It Has Been Observed That The Identification Can Only Be Used As Corroborative Of The Statement In Court, In Malkhansingh V. State Of M.P. [ (2003) 5 Scc 746 ], It Has Been Held That The Identification Parades Belong To The Stage Of Investigation, And There Is No Provision In The Code Of Criminal Procedure Which Obliges The Investigating Agency To Hold, Or Confers A Right Upon The Accused To Claim A Test Identification Parade. They Do Not Constitute Substantive Evidence And These Parades Are Essentially Governed By Section 162 Of The Code Of Criminal Procedure. Failure To Hold A Test Identification Parade Would Not Make Inadmissible The Evidence Of Identification In Court. The Weight To Be Attached To Such Identification Should Be A Matter For The Courts Of Fact. It Is Well Settled That The Substantive Evidence Is The Evidence Of Identification In Court And The Test Identification Parade Provides Corroboration To The Identification Of The Witness In Court, If Required. However, What Weight Must Be Attached To The Evidence Of Identification In Court, Which Is Not Preceded By A Test Identification Parade, Is A Matter For The Courts Of Fact To Examine. In Visveswaran V. State [ (2003) 6 Scc 73 ], It Is Held The Identification Of The Accused Either In Test Identification Parade Or In Court Is Not A Sine Qua Non In Every Case If From The Circumstances The Guilt Is Otherwise Established. Many A Time, Crimes Are Committed Under The Cover Of Darkness When None Is Able To Identify The Accused. Many A Time, Crimes Are Committed Under The Cover Of Darkness When None Is Able To Identify The Accused. The Commission Of A Crime Can Be Proved Also By Circumstantial Evidence. It Is Further Observed That In Manu Sharma V. State (Nct Of Delhi) [ (2010) 6 Scc 1 ], The Court, After Referring To Munshi Singh Gautam V. State Of M.P. [ (2005) 9 Scc 631 ], Harbajan Singh V. State Of J&K, [ (1975) 4 Scc 480 ] And Malkhansingh V. State Of M.P. [ (2003) 5 Scc 746 ] Came To Hold That The Proposition Of Law Is Quite Clear That Even If There Is No Previous Tip, The Court May Appreciate The Dock Identification As Being Above Board And More Than Conclusive. 43. In Noorahammad V. State Of Karnataka [ (2016) 3 Scc 325 ], The Apex Court Had Considered An Earlier Judgment In Dana Yadav V. State Of Bihar [ (2002) 7 Scc 295 ] And Held That If A Witness Identifies The Accused In Court For First Time, The Probative Value Of Such Uncorroborated Evidence Becomes Minimal So Much So That It Becomes, As A Rule Of Prudence And Not Law, Unsafe To Rely On Such A Piece Of Evidence. The Court Also Observed That There Are Certain Exceptions To The Said Rule Where Identification Of An Accused For The First Time In Court Has Been Made Without There Being Any Corroboration And The Same Can Form The Sole Basis For Conviction. Reference Is Made To Budhsen V. State Of U.P. [ (1970) 2 Scc 128 ] Wherein The Apex Court Held That There May Be Exceptions To The General Rule, When For Example, The Court Is Interested By A Particular Witness, On Whose Testimony It Can Safely Rely, Without Other Corroboration. In The Case On Hand, The Apex Court Observed That After Considering Certain Undisputed Facts Like Occurrence Of Incident At Night, At A Place With Improper Lighting And The Accused Were Not Known To The Forest Officers Except One Present At The Place Of Incident, There Should Have Been Tip Conducted At The Instance Of Investigating Officer. It Was Therefore Held That The Identification Of The Accused By The Prosecution Witness For The First Time After A Gap Of More Than 2 Years From The Date Of Incident Is Not Beyond Reasonable Doubt And The Same Should Be Seen With Suspicion. 44. It Was Therefore Held That The Identification Of The Accused By The Prosecution Witness For The First Time After A Gap Of More Than 2 Years From The Date Of Incident Is Not Beyond Reasonable Doubt And The Same Should Be Seen With Suspicion. 44. In Manu Sharma (Supra), The Apex Court Had Occasion To Consider The Requirement Of Tip. It Was Held At Paragraph 254 As Under:- “254. Even A Tip Before A Magistrate Is Otherwise Hit By Section 162 Of The Code. Therefore To Say That A Photo Identification Is Hit By Section 162 Is Wrong. It Is Not A Substantive Piece Of Evidence. It Is Only By Virtue Of Section 9 Of The Evidence Act That The Same I.E. The Act Of Identification Becomes Admissible In Court. The Logic Behind Tip, Which Will Include Photo Identification Lies In The Fact That It Is Only An Aid To Investigation, Where An Accused Is Not Known To The Witnesses, The Io Conducts A Tip To Ensure That He Has Got The Right Person As An Accused. The Practice Is Not Borne Out Of Procedure, But Out Of Prudence. At Best It Can Be Brought Under Section 8 Of The Evidence Act, As Evidence Of Conduct Of A Witness In Photo Identifying The Accused In The Presence Of An Io Or The Magistrate, During The Course Of An Investigation.” In That Case, The Apex Court Also Referred To Most Of The Earlier Judgments On The Point. 45. Taking Cue From The Aforesaid Judgments, There Is No Mandate That A Test Identification Parade Should Be Conducted For Identifying The Accused. Tip Is Intended To Enable The Investigating Officer To Ascertain The Accused During The Process Of Investigation. Therefore, Not Conducting A Tip Is Not Fatal To The Prosecution. But, In A Case Where The Accused Is Not Known To The Witness And He Is Seen By The Witness For The First Time, And Only For A Few Seconds Or Minutes During A Commotion, Whether He Will Be Able To Identify The Accused In The Court After Several Years Is A Question Of Fact To Be Decided By The Particular Court Taking Into Account All Factual Circumstances. In Other Words, The Court Should Be Convinced That The Witness Is A Truthful Witness And He Had Actually Seen The Accused And His Identification Is Without Any Blemish Or The Court Should Not Feel Any Suspicion In Regard To The Veracity Of The Witness. If There Is An Element Of Suspicion, The Accused Will Be Entitled For Benefit Of Doubt. 46. In The Present Case, A Test Identification Parade May Not Render Any Assistance, Where The Accused Is Absconding And His Name And Other Particulars Are Very Much Known To The People In The Locality. He Was Already Arrayed As An Accused When The Final Charge Was Submitted And Therefore There Is Every Possibility Of Every One Knowing The Particulars Of The Accused And Therefore Conducting A Test Identification Parade After Him Being Arrested After A Lapse Of Several Years Does Not Render Any Assistance. Therefore, Lack Of Test Identification Parade Cannot Be Stated As A Reason For Rejecting The Evidence Of Pw2. 47. Another Circumstance Pointed Out By The Defence Is That If Pw2 Was Available, He Would Have Shown The Actual Scene Of Occurrence. Ext.P49 Was Prepared At 9.00 A.M On 13/9/2003. Pw64, Sub Inspector Of Police Was In The Scene Of Kidnapping At 8.00 A.M. And Hence Ext.P1 If Statement Was Not Recorded By Him. But The Witnesses Having Clearly Spoken About The Preparation Of Fis And Registration Of Crime, There Is No Reason To Find Any Infirmity In The Procedure. We Do Not Find Any Material Omission In The Evidence Of Pw2 In Order To Discard His Evidence. The Omissions Pointed Out By The Prosecution Are (I) Deceased Was Proceeding To Ioc Plant Through The Western Side Of The Road, (Ii) He Had Seen Three Persons Getting Out Of The Car And (Iii) Deceased Was Dragged From The Western Side Of The Road To The East. We Do Not Think That These Omissions Are Fatal Enough To Discard His Evidence Before The Court. Even Assuming That Any Suspicion Can Be Created To The Testimony Of Pw2, The Question Would Be Whether His Evidence Is Corroborated By Other Evidence. The Prosecution Apparently Relies Upon The Recovery Of Mo18 Watch On The Basis Of The Statement Of The Accused. If The Said Recovery Can Be Relied Upon, It Would Amount To A Corroborative Piece Of Evidence Against The Accused. 48. The Prosecution Apparently Relies Upon The Recovery Of Mo18 Watch On The Basis Of The Statement Of The Accused. If The Said Recovery Can Be Relied Upon, It Would Amount To A Corroborative Piece Of Evidence Against The Accused. 48. Pw66 Had Recovered Mo18 Watch On The Basis Of Ext.P94 Seizure Mahazar And Ext. P94(A) Statement Of The Accused. The Watch Was Identified By Pw43 And Pw52. Pw57 Is The Witness Who Proved Recovery Of Mo18. Contention Of The Appellant Is That The Watch Was Planted. The Recovery Is Effected From The First Floor Of A Building Where The Accused Was Residing After Three Years From The Date Of Occurrence. Nothing Has Been Brought Out By The Defence To Discredit Their Testimony. 49. In The Cross Examination Of Pw66, He Was Questioned With Reference To Ex.P94 Mahazar And The Extract Of The Statement Ext. P94(A). What Was Produced Before Court Was A Photocopy. He Deposed That The First Accused Surrendered Before Court On 17/2/2006. His Custody Was Taken On 28/2/2006 At 1.00 P.M. He Was Returned On 3/3/2006. According To Him, He Saw The First Accused Only On 1/3/2006. The Accused Was In The Police Station Lock-Up On 28/2/2006. He Saw The Accused In The Evening Of 1/3/2006 . However, Nothing Has Been Stated In The Case Diary As To When He Has Seen The Accused. He Has Taken Deposition On The Same Day. The House Of The Accused Is About 4-5 Kms Away From His Office. Suggestion Was That The Recovery Was Planned At The Instance Of Party Men. He Deposed That He Was Busy And Therefore He Could Not Effect Recovery. According To Him, On 1st, He Had Another Murder Case To Be Investigated, Which Happened On The Same Day And Therefore He Saw The Accused Only On 1/3/2006 By Evening. Further Cross Examination Proceeded On The Basis That Mo18 Watch Was Planted By The Party Workers For The Purpose Of The Case. He Also Deposed That He Had Not Conducted Search In The House Of Accused 1 And 3. Anybody Can Enter The Terrace Of The House Of 1st Accused From Outside. There Is No Compound Wall Or Separation For The Building. Staircase Is On The Southern Side. Beyond That It Is River. There Were Five Persons In The Locality When Police Party Reached And Among Them A Few Persons Were Asked To Be Witness For Recovery. Anybody Can Enter The Terrace Of The House Of 1st Accused From Outside. There Is No Compound Wall Or Separation For The Building. Staircase Is On The Southern Side. Beyond That It Is River. There Were Five Persons In The Locality When Police Party Reached And Among Them A Few Persons Were Asked To Be Witness For Recovery. There Is Nothing Brought Out To Discredit The Evidence Of Pw66. 50. Prosecution Case Itself Was That 1st Accused Had Taken The Watch Of The Deceased. Where The Watch Was Hidden Was Purely Within The Knowledge Of The Accused And If He Had Given A Statement For Recovering The Said Material Object, It Is Also A Relevant Fact Which Cannot Be Discarded. Therefore, Evidence Of Pw2 And The Recovery Of The Watch Belonging To The Deceased On The Basis Of A Statement Given By The Accused Proves The Complicity Of His Involvement In The Crime. 51. Yet Another Factor Which Requires Consideration Is The Admissibility Of Ext.P58 Statement Given By The 6th Accused Santhosh In The Crime Before The Magistrate Under Section 164 Of The Criminal Procedure Code. Learned Counsel For The Appellant Submits That Ext.P58 Statement Is Neither A Confession In Terms Of Section 30 Of The Evidence Act Nor Is It A Previous Statement Which Could Be Treated As Relevant Under Section 32(3) Of The Act. On The Other Hand, Learned Public Prosecutor Submitted That In So Far As The Witness Had Died, Statement Which He Had Given As An Approver To The Crime Is Relevant Under Section 32(3) And Therefore, The Said Statement Is Evidence. He Also Placed Reliance On The Judgments In Haricharan Kurmi And Another V. State Of Bihar (1964 Khc 540) And State Of Delhi V. Shri Ram Lohia ( Air 1960 Sc 490 ). Even Otherwise, According To Him, Evidence Of Pw2 And Statement Given In Ext.P58 Are Contradictory And Diametrically Opposite And Therefore Ext.P58 Can Never Be Treated As A Piece Of Evidence. He Also Placed Reliance On The Full Bench Judgment In Asokan L.S. V. State Of Kerala (2005 (3) Klt 770) Which Clearly Excludes A Confession Made Or A Statement Recorded While The Person Is Under Judicial Custody. It Is Argued That When A Person Is In Judicial Custody, A Statement Given By Him Cannot Be Treated As One Under S.32(3) Of The Evidence Act. It Is Argued That When A Person Is In Judicial Custody, A Statement Given By Him Cannot Be Treated As One Under S.32(3) Of The Evidence Act. Reliance Has Also Been Placed To The Judgment In Peter V. State Of Kerala ( 2011 (2) Klt 68 ). 52. In Order To Emphasise The Point That Ext.P58 Cannot Be Treated As A Statement Under Section 32(3), Learned Counsel For Appellant Placed Reliance On Various Judgments, Few Of Which Are As Under:- (i) Emperor V. Keshav Narayan Manolkar [Laws (Pvc) 1913 6 36]. This Is A Privy Council Judgment Wherein While Considering The Veracity Of Letters Written By A Person To Third Persons Indicating His Ignorance Of The Existence Of The Will And One Which Contains A Statement About The Existence Of A Will, It Is Observed That The Statements In The Letters Are Purely Hearsay Evidence Since The Person Who Had Written The Letter Was Not Examined. It Was Also Observed That The Document Which Was Admitted Was A Statement Made By A Person Who Is Alleged To Have Forged The Document And He Was Dead. The Document Was Admitted Under Section 32(3) Of The Evidence Act. It Was Held That The Liability To Criminal Prosecution Had Already Been Incurred As He Has Been Brought Up Under A Non Bailable Warrant For The Offence Of Forgery And Therefore S.32(3) Cannot Be Extended Or Stretched To Admit A Statement Made By An Accused After The Charge Has Been Preferred Against Him. (ii) Gerald Thomas Cockman V. Mrsolga Myrtle Cockman [Air (All) 1934 0 618]. This Was Also A Case In Which A Letter Was Sought To Be Treated In Evidence Under S.32(3) Of The Evidence Act. It Was Held That A Letter Could Be Taken In Evidence As His Admission Of Adultery Would Have Exposed Him To A Criminal Prosecution. (iii) Achhaya Lal Singh V. Emperor [Air (Pat) 1947 0 90]. This Is Also A Privy Council Judgment Wherein While Considering The Scope And Effect Of Sections 30 And 32 Of The Evidence Act, It Was Held That When The Principle Under S.32 Is That When A Person Makes A Statement Rendering Him Liable To Criminal Prosecution, The Statement Is Likely To Be A True Statement. This Is Also A Privy Council Judgment Wherein While Considering The Scope And Effect Of Sections 30 And 32 Of The Evidence Act, It Was Held That When The Principle Under S.32 Is That When A Person Makes A Statement Rendering Him Liable To Criminal Prosecution, The Statement Is Likely To Be A True Statement. However, Since The Person Who Made The Confession Had Already Been Arrested And There Was Evidence Against Him Which Would Inevitably Have Led To His Prosecution, Applicability Of Section 10 Of The Evidence Act Is A Point Of More Difficulty. That Was Also A Case In Which A Confession Was Taken From An Approver Who Died Before The Commencement Or Completion Of The Enquiry. It Was Held That His Confession Is Not Admissible Under S.30 Of The Evidence Act. Privy Council Held That There Is No Possibility Of The Said Statement Coming Under Section 32 Or Even Section 10. 53. On The Other Hand, Learned Public Prosecutor Placed Reliance Upon The Following Judgments:- (I) Sucha Singh V. State Of Punjab [ (2001) 4 Scc 375 ]. In The Above Case, The Apex Court Held At Paragraphs 18, 20 And 21 As Under:- “18. Learned Senior Counsel Contended That Section 106 Of The Evidence Act Is Not Intended For The Purpose Of Filling Up The Vacuum In Prosecution Evidence. He Invited Our Attention To The Observations Made By The Privy Council In Attygalle V. R. And Also In Stephen Seneviratne V. R. In Fact The Observations Contained Therein Were Considered By This Court In An Early Decision Authored By Vivian Bose, J., In Shambhu Nath Mehra V. State Of Ajmer. The Statement Of Law Made By The Learned Judge In The Aforesaid Decision Has Been Extracted By Us In State Of W.B. V. Mir Mohd. Omar. It Is Useful To Extract A Further Portion Of The Observation Made By Us In The Aforesaid Decision: (Scc P. 392, Para 33) “33. Presumption Of Fact Is An Inference As To The Existence Of One Fact From The Existence Of Some Other Facts, Unless The Truth Of Such Inference Is Disproved. Presumption Of Fact Is A Rule In Law Of Evidence That A Fact Otherwise Doubtful May Be Inferred From Certain Other Proved Facts. Presumption Of Fact Is An Inference As To The Existence Of One Fact From The Existence Of Some Other Facts, Unless The Truth Of Such Inference Is Disproved. Presumption Of Fact Is A Rule In Law Of Evidence That A Fact Otherwise Doubtful May Be Inferred From Certain Other Proved Facts. When Inferring The Existence Of A Fact From Other Set Of Proved Facts, The Court Exercises A Process Of Reasoning And Reaches A Logical Conclusion As The Most Probable Position. The Above Principle Has Gained Legislative Recognition In India When Section 114 Is Incorporated In The Evidence Act. It Empowers The Court To Presume The Existence Of Any Fact Which It Thinks Likely To Have Happened. In That Process The Court Shall Have Regard To The Common Course Of Natural Events, Human Conduct Etc. In Relation To The Facts Of The Case.” “20.We Have Seriously Bestowed Our Consideration On The Arguments Addressed By The Learned Senior Counsel. We Only Reiterate The Legal Principle Adumbrated In State Of W.B. V. Mir Mohd. Omar That When More Persons Than One Have Abducted The Victim, Who Is Later Murdered, It Is Within The Legal Province Of The Court To Justifiably Draw A Presumption Depending On The Factual Situation, That All The Abductors Are Responsible For The Murder. Section 34 Ipc Could Be Invoked For The Aid To That End, Unless Any Particular Abductor Satisfies The Court With His Explanation As To What Else He Did With The Victim Subsequently, I.E., Whether He Left His Associates En Route Or Whether He Dissuaded Others From Doing The Extreme Act Etc. Etc. 21. We Are Mindful Of What Is Frequently Happening During These Days. Persons Are Kidnapped In The Sight Of Others And Are Forcibly Taken Out Of The Sight Of All Others And Later The Kidnapped Are Killed. If A Legal Principle Is To Be Laid Down That For The Murder Of Such Kidnapped There Should Necessarily Be Independent Evidence Apart From The Circumstances Enumerated Above, We Would Be Providing A Safe Jurisprudence For Protecting Such Criminal Activities. India Cannot Now Afford To Lay Down Any Such Legal Principle Insulating The Marauders Of Their Activities Of Killing Kidnapped Innocents Outside The Ken Of Others.” (ii) Asokan L.S. V. State Of Kerala (2005 (3) Klt 770). India Cannot Now Afford To Lay Down Any Such Legal Principle Insulating The Marauders Of Their Activities Of Killing Kidnapped Innocents Outside The Ken Of Others.” (ii) Asokan L.S. V. State Of Kerala (2005 (3) Klt 770). This Is A Full Bench Judgment Of This Court Wherein This Court Considered Whether A Statement Of An Approver Examined Before The Magistrate Under Clause (A) Of Sub Section (4) Of Section 306 Is Relevant And Admissible Under S.33 Of The Evidence Act. It Was Held That Since The Accused Had No Right To Cross Examine The Approver While His Statement Is Recorded Under Section 306(4)(A), It Is Not Relevant Or Admissible Under S.33 Of Evidence Act During A Subsequent Trial In Which The Approver Was Not Available For Examination By Reason Of His Death In The Meantime. It Was However Held That The Scope Of Admissibility Of Such A Statement Under S.32(3) Of The Evidence Act In Regard To The Said Statement Of The Approver Has Not Been Considered. (iii) Lakshmana K., Ips And Another V. Cbi And Others ( 2011 (3) Klt 75 ). This Is A Division Bench Judgment Of This Court In Which This Court Had Occasion To Consider The Scope Of An Affidavit Which Is Self Incriminatory Filed By The Accused In A Case Before The High Court. It Was Held That Where A Witness Is Dead Or He Cannot Be Found Or Has Become Incapable Of Giving Evidence, Or His Attendance Cannot Be Procured Without Unreasonable Delay, Statement Of Relevant Facts By Such Person Which Come Under The Eight Clauses Under S.32 Of The Act Are Themselves Relevant Facts And Admissible In Evidence. In The Case Of A Person Referred In Section 32(3), If He Makes A Statement Which Is Against The Pecuniary Or Proprietary Interest Or If It Is True, It Would Expose Or Would Have Exposed Him To Criminal Prosecution Or To A Suit For Damages, His Statement Itself Is A Relevant Factor Admissible In Evidence. 54. As Far As Ext. P58 Is Concerned, It Is A Statement Given To The Magistrate Under Section 164 Which Apparently Is Not Evidence Unless He Is Examined Before Court. Nevertheless It Becomes A Previous Statement Of A Dead Person, Since It Is A Signed Statement Before The Learned Magistrate. 54. As Far As Ext. P58 Is Concerned, It Is A Statement Given To The Magistrate Under Section 164 Which Apparently Is Not Evidence Unless He Is Examined Before Court. Nevertheless It Becomes A Previous Statement Of A Dead Person, Since It Is A Signed Statement Before The Learned Magistrate. Under Such Circumstances, The Question Is Whether The Said Statement Can Be Treated As Relevant Under Section 32(3) Of The Evidence Act. In The Privy Council Judgments Relied Upon, It Is Clearly Stated That Any Statement Given By A Person Who Is Accused Of An Offence Cannot Be Treated As A Statement Under Section 32. Section 32 (3) Reads As Under:- “32. Cases In Which Statement Of Relevant Fact By Person Who Is Dead Or Cannot Be Found, Etc., Is Relevant- Statements, Written Or Verbal, Of Relevant Facts Made By A Person Who Is Dead, Or Who Cannot Be Found, Or Who Has Become Incapable Of Giving Evidence, Or Whose Attendance Cannot Be Procured Without An Amount Of Delay Or Expense Which, Under The Circumstances Of The Case, Appears To The Court Unreasonable, Are Themselves Relevant Facts In The Following Cases:- (1) Xxxxx (2) Xxxxx (3) Or Against Interest Of Maker.- When The Statement Is Against The Pecuniary Or Proprietary Interest Of The Person Making It, Or When, If True, It Would Expose Him Or Would Have Exposed Him To A Criminal Prosecution Or To A Suit For Damages. Xxxxx” On A Bare Reading Of The Section Itself, It Is Rather Clear That The Statement Includes Any Statement Whatsoever, Of Relevant Facts Made By A Person Who Is Dead, Are Themselves Relevant Under The Eight Circumstances Mentioned Therein And What We Are Concerned With Is Sub Section (3) I.E., When The Statement Is Against The Pecuniary Or The Proprietary Interest Of The Person Making It, Or When, If True, It Would Expose Or Would Have Exposed Him To A Criminal Prosecution Or To A Suit For Damages. The Contention Urged Is That Since He Was Already An Accused In A Crime And Prosecution Is Proceeding, The Said Statement Would Not Expose Him Or Would Have Exposed Him To Any Criminal Prosecution. A Statement Becomes Relevant Only If The Person Making The Statement Was Not An Accused In Any Crime. The Contention Urged Is That Since He Was Already An Accused In A Crime And Prosecution Is Proceeding, The Said Statement Would Not Expose Him Or Would Have Exposed Him To Any Criminal Prosecution. A Statement Becomes Relevant Only If The Person Making The Statement Was Not An Accused In Any Crime. Even In An Instance Where The Accused Was In Police Custody And There Was Sufficient Evidence To Mulct Him With The Offence, Privy Council Observed That The Same Would Not Be Sufficient To Attract Section 32(3). In The Light Of The Above Discussion, We Are Of The View That Ext.P58 Cannot Be Treated As Relevant Facts Under Section 32(3) Of The Evidence Act. 55. In The Light Of The Aforesaid Finding Of Ours, We Do Not Find Any Ground To Interfere With The Conviction Of The Appellant/Accused. There Is No Reason To Interfere With The Punishment As Well. Under Such Circumstances, The Appeal Stands Dismissed.