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2023 DIGILAW 817 (KER)

Santhosh, S/o. Madhavan v. State Of Kerala

2023-10-20

P.B.SURESH KUMAR, P.G.AJITHKUMAR

body2023
JUDGMENT : P.G.Ajithkumar, J. These appeals are filed under Section 374(2) of the Code of Criminal of Procedure, 1973. The Sessions Court, Palakkad tried accused Nos.1 to 9 in S.C.No.382 of 2014. Pending trial, accused Nos.4 turned an approver. On the conclusion of the trial, accused Nos.1 to 3 were convicted and sentenced for the offence punishable under Sections 120B, 201, 302 and 397 read with Section 34 of Indian Penal Code, 1860 (IPC). Accused Nos.5 and 8 were convicted and sentenced under Sections 118 and 120B read with Section 34 of the IPC. Accused Nos.6 and 7 were convicted and sentenced for the offence under Section 118 of the IPC. The 9th accused was acquitted. The 1st accused did not prefer any appeal. 2. On 27.05.2020 accused Nos. 1 to 8 were found guilty and convicted. Accused Nos. 1, 2, 4, 7 and 8 were sentenced on the same day. Since accused Nos. 3, 5 and 6 absconded, their sentencing was postponed and the case against them was refiled as Sessions Case No.351 of 2020. On procuring their presence, accused Nos.6, 3 and 5 were sentenced, respectively, on 06.08.2020, 11.08.2020 and 24.08.2020. 3. Following are the details of the appeals filed by each of the accused: Case No. Filed by whom Sessions Case number Crl.A.No.507 of 2020 Santhosh Accused No.7 S.C.No.382 of 2014 Crl.A.No.600 of 2020 Rajendran Accused No.8 S.C.No.382 of 2014 Crl.A.No.607 of 2020 Rajeesh @ Unnimon Accused No.6 S.C.No.351 of 2020 Crl.A.No.958 of 2020 Abu Thahir Accused No.3 S.C.No.351 of 2020 Crl.A.No.263 of 2021 Muhammedali @ Mulla Accused No.2 S.C.No.382 of 2014 Crl.A.No.752 of 2021 Krishnadas Accused No.5 S.C.No.351 of 2020 4. Sri.Raghu @ Kannan was a taxi driver at Chelakkara. His dead body was found in a mutilated state in Thirunellayi River, Palakkad on the morning of 06.12.2012. A crime was registered from Palakkad Town South Police Station based on that information which was passed on by PW1. In the ensued investigation, PW61 who was the Inspector of Police, Town South Police Station unraveled the conspiracy and consequent murder of Sri.Raghu resulting in submission of a final report before the Judicial Magistrate of the First Class-III, Palakkad. 5. Briefly, the case of the prosecution is: Accused Nos.1 to 8 hatched a conspiracy to rob a luxury car and using the same stanch off smuggled gold from the persons transporting it unauthorisedly. 5. Briefly, the case of the prosecution is: Accused Nos.1 to 8 hatched a conspiracy to rob a luxury car and using the same stanch off smuggled gold from the persons transporting it unauthorisedly. Accused Nos.1 to 3 came to Chelakkara in an Alto Car bearing Reg.No.KL-49-B-8523 on 06.12.2012 and accused Nos.4 and 5 joined them there. On the initiative of the 2nd accused, the Tavera Car bearing Reg.No.KL-48-D-9429 owned and driven by Sri.Raghu was hired. Accused Nos.1 to 4 boarded that car on the pretext of going on a trip to Ooty. Enroute, at about 11.50 p.m., after having stopped the car at Kongottupadom, the 1st accused attempted to inject cyanide, obtained from the 8th accused, using a syringe, which failed. Immediately, he with the help of accused Nos.2, 3 and 4 prevailed over Sri.Raghu and the 1st accused using a knife stabbed at his neck causing a fatal injury. The 2nd accused using that knife slashed his neck. Accused Nos.3 and 4 hit him using a stone. Thereby, they ensured death of Sri.Raghu and they thereafter left the body in Thiruvennayi River. They also tore off the abdomen of the dead body with an intention to avoid the body being floated on the water. Accused Nos.5 to 8, having known about the plot to commit such a criminal act, facilitated the act by concealing the same. The 9th accused harboured the 1st accused despite knowing about the offence he has committed. 6. On committal by the learned Magistrate, the Sessions Court took cognizance of the offences. The charges framed against the accused were duly denied by them. At the trial, PWs.1 to 61 were examined and Exts.P1 to P94 were marked on the side of the prosecution. MOs.1 to 44 were identified. Exts.X1 to X3 were also received in evidence. During the course of the trial, an application was filed by the 4th accused seeking pardon. The Sessions Court allowed that application and the pardon tendered by the Court was accepted by the 4th accused. He was accordingly examined as PW59. 7. On the close of the prosecution evidence, accused Nos.1 to 3 and 5 to 9 were questioned as provided in Section 313(1)(b) of the Code. They have duly denied the incriminating circumstances found in the evidence. He was accordingly examined as PW59. 7. On the close of the prosecution evidence, accused Nos.1 to 3 and 5 to 9 were questioned as provided in Section 313(1)(b) of the Code. They have duly denied the incriminating circumstances found in the evidence. Accused Nos.1, 2, 6, 7 and 9 made oral submissions that they were falsely implicated in the case and they did not know the co-accused. Accused Nos.3, 5 and 8 filed written statements. The 3rd accused maintained that he did not have any acquaintance with other accused. The stand taken by the 5th accused was that he had an altercation with the 4th accused, who created a ruckus in an inebriated state near his house, and on account of that enmity he was falsely implicated in this case. The 8th accused averred in his statement that he had no connection with the Alto Car, nor did he had possession of that car ever. He also stated that he was innocent. 8. The matter was heard as provided in Section 232 of the Code and the 9th accused was acquitted finding that there was no evidence against him. Others were asked to enter on their defence. Two witnesses DWs.1 and 2 were examined and Exts.D1 to D9 were marked by the accused. The finding of the Sessions Court regarding guilt of the accused, their conviction and also sentence are assailed by the respective accused in these appeals. 9. Heard the learned counsel appearing for the respective accused and the learned Senior Public Prosecutor. 10. The learned counsel appearing for the 2nd accused raised a contention at the outset that the said accused did not attain the age of 18 years on the date of occurrence and the court below wrongly rejected his plea of juvenility. In the light of the provisions of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short “Juvenile Justice Act”), which was then in force, it is incumbent upon this Court to consider the correctness of the said finding first. C.M.P.No.2198 of 2015 was filed by the 2nd accused before the Sessions Court raising a contention that he was a child and a medical examination to ascertain his age should be conducted. As per the order dated 11.08.2015, that petition was dismissed. C.M.P.No.2198 of 2015 was filed by the 2nd accused before the Sessions Court raising a contention that he was a child and a medical examination to ascertain his age should be conducted. As per the order dated 11.08.2015, that petition was dismissed. In such circumstances the question is as to whether the prosecution has proved the age of the 2nd accused. 11. The prosecution has examined PW38 and produced Ext.P24 in order to prove that the 2nd accused was above 18 years of age on the date of occurrence. As per Section 2(12) of the Juvenile Justice Act, a person who has not completed 18 years of age is a child. The prosecution asserted that the 2nd accused was born on 08.04.1994. If he was born on the said date, he would have crossed 18 years of age on the date of commission of the offence, which was 06.12.2012. Ext.P24 is an extract of the admission register relating to the admission of the 2nd accused. It was issued by PW38, who was the Headmistress of K.M.L.P School, Karappotta. She deposed that it was she who issued Ext.P24 after extracting the contents from the original admission register. She identified in court the 2nd accused, whom she taught at the 1st standard and regarding whose admission she issued that document. During cross-examination, she asserted that the usual practice is to issue the abstract on plain paper. We find no infirmity in issuing a certified abstract of the admission register in a plain paper instead of a stamped paper, since there is no statutory insistence to issue the extract in stamp paper. No reason to disbelieve PW38 has been brought out in the cross-examination. She is totally an independent witness. She being his teacher, it cannot even remotely be expected that she would state anything falsely against the 2nd accused. When she herself had prepared and issued Ext.P24, its contents stood duly proved. The question then is whether Ext.P24 is enough to prove the age of the 2nd accused in terms of the law. 12. The date of the offence is 06.12.2012 and Ext.P24 was issued on 04.03.2013. Hence the provision applicable to decide juvenility is Rule 12 of the Juvenile Justice Rules, 2007. Sub-rule (3) of Rule 12 enumerates the certificates which can be used as evidence to prove the age of a person, in the order of preference. 12. The date of the offence is 06.12.2012 and Ext.P24 was issued on 04.03.2013. Hence the provision applicable to decide juvenility is Rule 12 of the Juvenile Justice Rules, 2007. Sub-rule (3) of Rule 12 enumerates the certificates which can be used as evidence to prove the age of a person, in the order of preference. The matriculation or equivalent certificate is the first item and in the absence thereof the date of birth certificate from the school where the person first attended. In the absence of both, the birth certificate given by a corporation or a municipal authority or a panchayat. Et.P24 is the date of birth certificate issued from the school where the 2nd accused first attended. The learned counsel for the 2nd accused by placing reliance on Madan Mohan Singh and others v. Rajni Kant and another [ (2010) 9 SCC 209 ] and Yuvaprakash P. v. State rep. by Inspector of Police [ 2023 (4) KLT 563 (SC)] contended that an ossification test should have been conducted in order to ascertain his age conclusively. 13. It was held in Madan Mohan Singh (supra) that so far as the entries made in the official record by an official or person authorised in the performance of official duties are concerned, they may be admissible under Section 35 of the Indian Evidence Act, 1872. A note of caution sounded is that the court has to examine their probative value. The said rule was laid down not in the context of Rule 12 of the Juvenile Justice Rules, 2007. 14. In Yuvaprakash (supra), the question was relating to the age of the victim of an offence under the Protection of Children from Sexual Offences Act, 2012 (for short “PoCSO Act''). In view of the provisions of Section 34(2) of the PoCSO Act, age of a victim has to be determined by the court after satisfying itself about the age. The Apex Court in that context, after having regard to Section 94 of the Juvenile Justice Act, held in Yuvaprakash (supra) that none of the documents produced during the trial answered the description of the date of birth certificate from the school or the matriculation or equivalent certification and therefore it was incumbent upon the prosecution to prove age of the victim through acceptable medical test/examination. Therefore it is clear that the question of medical examination arises only in the absence of acceptable documents enumerated in Rule 12 if the Juvenile Justice Rules, as the case may be. 15. This Court, after referring to the decisions of the Apex Court on the point, explained in Maju v. State of Kerala [ 2020 (3) KLT 373 ] as to what shall be the mode of proof of age of a victim in a prosecution under the PoCSO Act. Similar are the provisions applicable in the case of ascertainment of the age of a person accused of an offence, who claims to be a child. It is profitable to extract the observations in the said decision: “As is seen from the extracted provision, in case of doubt as to whether the person brought before the competent authority under the said statute is a child, the competent authority has to undertake a process of determination of the age of the person by seeking evidence by obtaining the certificates made mention of therein. The first among the certificates made mention of in the said provision is the date of birth certificate from the school. If the date of birth certificate from the school can be relied on for determining the age of the child for the purpose of the Juvenile Justice (Care and Protection of Children) Act, 2015, in the light of the decisions of the Apex Court in Jarnail Singh v. State of Haryana [ (2013) 7 SCC 263 ] and Mahadeo v. State of Maharashtra [ (2013) 14 SCC 637 ], according to me, in the absence of evidence to the contrary, such certificates can be accepted as conclusive proof of age of the victim in a criminal proceedings as well. Yet another reason for me to take this view is the declaration made by the Apex Court in Ravinder Singh Gorkhi v. State of U.P., [ (2006) 5 SCC 584 ], that until the age of a person is required to be determined in a manner laid down under a statute, a standard of proof other than one directed to be followed therein shall not be adopted, indicating clearly that if the manner of determination of age is laid down in a statute, the same has to be followed in preference to the procedure laid down therein.” 16. As noted above, evidence of PW38 coupled with Ext.P24 proved the age of the second accused in compliance with the provisions of Rule 12 of the Juvenile Justice Rules. We find absolutely no reason not to accept Ext.P24, which is the date of birth certificate issued from the school where the 2nd accused first attended. Rule 12(3)(b) postulates that only in the absence of either of the three certificates made mention of therein, a medical opinion can be sought from a duly constituted Medical Board, which would declare the age of the child. Such a contingency did not arise in this case. In such circumstances, the rejection of the plea of the 2nd accused to conduct a medical examination/ossification test in order to ascertain his age cannot be said to be incorrect. Accordingly, we hold that the 2nd accused was above the age of 18 years on the date of commission of the offence and not a child. 17. The prosecution initially proposed to prove the charge against all the accused with the aid of circumstantial evidence. However, during the course of trial, the 4th accused accepted the pardon offered by the Sessions Court and he gave evidence before the court as an approver. He is PW59. He narrated before the court all the incidents starting from his joining the company of accused Nos.1 to 3. He deposed that at about 7.30 a.m. on 06.12.2012, he joined in the company of accused Nos.1 to 3, they hired the taxi of the deceased Sri.Raghu, a Tavera Car bearing Reg.No.KL-48-D-9429, went to Kongottupadom on the pretext of going to Ooty, enroute they caused the death of Sri.Raghu dumped his body at Thirunellai river and abandoned the car at Ganapathy, a place in Tamil Nadu. He also deposed before the court about the recovery of articles at his instance during the investigation, which have relation to the commission of the offences. The prosecution, therefore, could rely on his evidence, which is direct, apart from the circumstances it had attempted to prove. In that backdrop, it is appropriate to consider the evidence of PW59 first, its reliability, and how far the attending circumstances rendered corroboration to his evidence. 18. PW59 being an accomplice, the evidentiary value of his testimony before the court is different. A conscious approach is required while appreciating his evidence. In that backdrop, it is appropriate to consider the evidence of PW59 first, its reliability, and how far the attending circumstances rendered corroboration to his evidence. 18. PW59 being an accomplice, the evidentiary value of his testimony before the court is different. A conscious approach is required while appreciating his evidence. The only statutory provision insisting on corroboration to the evidence of an accomplice is contained in Illustration (b) to Section 114 of Evidence Act. The court may presume, in appropriate cases, that an accomplice is unworthy of credit, unless he is corroborated in material particulars. This presumption need not be drawn in all cases since it is only an enabling presumption and not a mandatory one. However, this cautionary principle is generally acted upon so that it can be said to have become a rule of law. An accomplice is one who admittedly participated in a crime and betrays his associates. He may like to please the prosecution and possibility of weaving false details into the evidence cannot be ignored altogether. The purpose of corroboration is to ensure that the testimony of the accomplice is credit-worthy and free of any such embellishments. The nature and extent of corroboration required depends upon the circumstances of each case. (See: Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram [ AIR 2007 SC 794 ]). Hence, invariably, the court may insist on corroboration in material particulars connecting the accused with the crime. Every detail need not be confirmed by independent evidence. Independent confirmation for every material circumstance may not be required, but some additional evidence rendering it probable that it is reasonably safe to act upon it to hold that the crime was committed and that the accused was connected with the crime may be insisted. That rule shall be applied bearing in mind that Section 133 of the Evidence Act which says that an accomplice is a competent witness and conviction based on the uncorroborated evidence of an accomplice is not illegal. (See: Mrinal Das and others v. State of Tripura [ AIR 2011 SC 3753 , Thadiyantevida Nazeer and others v. State of Kerala and another [ 2022 (1) KLT 685 ]) 19. PW59 narrated the incident as follows: At 7.30 a.m. on 06.12.2012, while he was on his way home saw accused Nos.1 to 3 sitting in an Alto Car near his house. PW59 narrated the incident as follows: At 7.30 a.m. on 06.12.2012, while he was on his way home saw accused Nos.1 to 3 sitting in an Alto Car near his house. The 1st accused demanded Rs.1,000/-and as he was not readily able to pay; he offered to pay later. After a short while, the 3rd accused contacted him over phone and hence he joined accused Nos.1 to 3. They proceeded to Manappadam petrol bunk, from where they filled petrol for Rs.200/-. They went to the house of the uncle of the 2nd accused. He got Rs.2,000/-from there. Thereafter they proceeded to Chelakkara. The 2nd accused went to the taxi stand and after a few minutes he came back. He was having a visiting card at that time. They went to Vadakkencherry from where they bought liquor which they consumed from a place named Thanipparambu. At that time, the 5th accused was also with them. They thereafter went to Mattuvazhi. The 2nd accused made a call from the STD booth there and informed others that the vehicle was ready and he would go and fetch it. He immediately went to Chelakkara by bus. While they were having liquor again from near the house of the 3rd accused, the 2nd accused contacted over his phone and talked to the 1st accused to inform that he got the taxi. They therefore proceeded to Elanad in the Alto Car. At Elanad, the 2nd accused came with a Tavera Car driven by Sri. Raghu. From there, he along with accused Nos.1 and 3 proceeded in the Alto Car and the 2nd accused proceeded in the Tavera Car. When reached near the house of the 1st accused, all of them boarded the Tavera Car and proceeded further. At Thennilapuram, they stopped and the 2nd accused went to a nearby house. After a short while, he came back and informed them that the person they enquired was not available and therefore their trip to Ooty could not be undertaken. Hence they returned. At about 11.00 p.m the accused persons wanted to stop the vehicle for them to have drinks which Sri.Raghu obliged. While accused Nos.2 to 4 stepped out, the 1st accused was sitting on the seat behind the driver’s seat. At that time, Sri.Raghu informed his house over phone that the Ooty trip was cancelled and he was returning. At about 11.00 p.m the accused persons wanted to stop the vehicle for them to have drinks which Sri.Raghu obliged. While accused Nos.2 to 4 stepped out, the 1st accused was sitting on the seat behind the driver’s seat. At that time, Sri.Raghu informed his house over phone that the Ooty trip was cancelled and he was returning. The 1st accused then covertly tried to inject Raghu Cyanide using the syringe with him. But that attempt failed since the syringe slipped down. Immediately the 2nd accused reached near the driver's seat and with the help of the 1st accused pulled Sri.Raghu down. A knife was handed over by the 2nd accused and using that, the 1st accused tried to stab Sri.Reghu, which he had warded off. Immediately the 3rd accused obtained the knife and gave it to the 1st accused. During that scuffle, the 3rd accused sustained an injury at his hand. Immediately the 1st accused stabbed Sri.Raghu inflicting a piercing injury at his neck. The 1st accused handed over the knife to the 2nd accused, and using the stone given by PW59 the 1st accused hit at the head of Sri.Reghu. Following that, the 2nd accused slashed his neck ensuring his death. They thereafter took the body to the back seat. Since blood oozed out, and spilled on the road, they had collected waste and set fire after pouring liquor. The 2nd accused had suffered a burn injury in that course. Immediately they proceeded in the said car to Choolipadam along Kunnumpuram. On reaching Puthukkode Gramam, the mobile phone of Sri.Raghu was thrown into a public well there. They thereafter went to Thirunellayi. There they deposited the corpse in the river by placing it on a bedsheet. The accused tore open the abdomen to ensure that the body was immersed in the river. They thereafter proceeded in the said car to Coimbatore and from Chavadi, PW59 bought three T-shirts and a trouser. He went to the shop since his dress alone was not blood stained. They proceeded further to reach Pollachi Road. En route, they abandoned a bed sheet, flex and plastic car seat cover in a river. They slept inside the vehicle till the morning. At about 6.00 a.m, they went to Puthanamkulam, where they got refreshed from the public comfort station. They proceeded further to reach Pollachi Road. En route, they abandoned a bed sheet, flex and plastic car seat cover in a river. They slept inside the vehicle till the morning. At about 6.00 a.m, they went to Puthanamkulam, where they got refreshed from the public comfort station. The blood stains in the vehicle were washed and the towels used to clean the vehicle were left there. The knife they had used to kill Sri.Raghu was also abandoned near the pond there. They changed the dress and proceeded in the car to Ganapathy before which they abandoned their used dress also. After having tea from a shop, the 1st accused contacted 2-3 persons in his attempt to sell out the Tavera car. Since the attempt failed, they abandoned the car there and went to Coimbatore. PW59 left the company of others at the railway station at Coimbatore. He after getting money from his earlier employer there returned to his native place. 20. PW59 also stated the incidents transpired post his arrest. He deposed the following: In the evening, presumably on 07.12.2012, the police took him into custody while he was returning after attending a funeral. He along with the police went to Ganapathy and brought back the Tavera Car. While in jail the accused Nos.2 and 5 told him about the plot they along with accused Nos.1 and 3 had devised to procure a car and using that to rob smuggled gold. 21. PW59 was cross-examined at length. It was attributed by the accused that out of some previous enmity, he tried to implicate other accused. During the cross-examination, every aspect deposed by PW59 before the court was challenged. However, no serious contradictions or inconsistencies could be brought out. The reason highlighted to disbelieve PW59 is that he did not disclose the whole truth inasmuch as he gave exculpatory statements in respect of at least one fact. Going by the case of the prosecution, PW59 also hit using the stone at the head of Sri.Raghu but he stated in court that he gave the stone only and it was the 1st accused who hit Raghu using the stone. Other than that, there is no conflict between his version before the court and the case of the prosecution. 22. Other than that, there is no conflict between his version before the court and the case of the prosecution. 22. From the narration of the matters transpired from the point of time, he joined accused Nos.1 to 3 till he left that group, his version is coherent and appeared natural. Of course, the prosecution had an allegation that PW59 hit at the head of Sri.Raghu using the stone first, but he allegedly suppressed that fact. There is no direct evidence other than that of PW59. The prosecution can set forth such an allegation only on the basis of the information gathered during investigation, which is inadmissible in evidence being hit by Section 162(1)of the Code. So, that cannot be a ground to find that PW59 stated that part of his statement exculpatory and he had stated false in the court. It is incorrect to conclude for that reason that the approver is totally an unreliable witness. 23. Insofar as the death of Sri.Raghu and also that his death was a homicide are concerned, there is no much dispute. The death was noticed by the people of the locality on the morning of 07.12.2012. Seeing the body in the river, PW1 Kailasan, a resident of Thirunellayi went to the police station and gave Ext.P1 information. It was at 8.30 a.m. Based on that statement, PW58, an Assistant Sub Inspector of Police, registered the crime as per Ext.P63 FIR. PW61, the Circle Inspector soon proceeded to Thirunellayi and recovered the body. On taking the body out of the river, an inquest was conducted at the place of occurrence itself. Ext.P3 is the inquest report. After completing the inquest, the body was sent for autopsy. PW40 Dr.Anand, who was a Lecturer and Assistant Police Surgeon in the Medical College, Thrissur conducted the autopsy. Ext.P29 is his report. After noticing all antemortem injuries in the body, he opined that the death of Sri.Raghu was due to the incised penetrative wound inflicted at his neck. The injury penetrated the chest cavity and left lung. PW40 deposed in court that the said injury, which was Sl.No.19 in Ext.P29 report could be caused using MO8 knife. So also, injuries noted at Sl.Nos.14, 16, 17, 18, 19, 26, 30, 32, 33 and 35. Injury No.19 reads, “19. Incised penetrating wound 2.5x0.3cm. The injury penetrated the chest cavity and left lung. PW40 deposed in court that the said injury, which was Sl.No.19 in Ext.P29 report could be caused using MO8 knife. So also, injuries noted at Sl.Nos.14, 16, 17, 18, 19, 26, 30, 32, 33 and 35. Injury No.19 reads, “19. Incised penetrating wound 2.5x0.3cm. transversely placed over the front and left side of neck, its inner sharp end 3cm above the supra sternal notch and 1.5cm outer to midline. The wound was seen running downwards cleanly cutting the sternal and clavicular head of left sternocleidomastoid muscles and cutting the left subclavian vessels and entering into the left chest cavity. The wound was seen cleanly cutting the front aspect of upper lobe of right lurg 2.5x0.2cm and transfixing and exiting over the back aspect (2.5x0.2cm) 5cm below the apex near the inter lobar fissure. The upper and back portion of the lower lobe of left lung near the inter lobar fissure was seen partly cut (2x0.2cm). The injuries over the lung were parallel and in a line to each other. The left lung was in a collapsed state. The left pleural cavity contained 1200 ml of fluid blood. The wound was directed downwards, backwards and to the left. The minimum depth of the wound was 8cm. In the opinion of PW40, injury No.19 itself was sufficient in the ordinary course to cause death. Although PW40 was cross-examined, nothing to dislodge his opinion has come out. No much deliberation is required, considering the extensive and serious nature of the injuries noticed on the body of Sri.Raghu to conclude that his death was a homicide. 24. If it is able to find that PW59 is a wholly reliable witness, that by itself may lead to a conviction, but we proceed to consider as to what extent the below mentioned particulars, which are material in the facts of this case, are corroborated by other evidence as follows: i) PW59 and accused Nos.1 to 3 and 5 were together while the plot to hire a luxury car was hatched; ii) Tavera car bearing Registration No.KL-48-D-9429 belonging to the deceased was hired on the initiative of the 2nd accused and he along with accused Nos 1 to 3 travelled in it; iii) The murder of Sri.Reghu; iv) Stealing of Tavera car; and v) Recovery of the Tavera car, the weapon of offence and other articles. 25. 25. PW5 is the wife of Sri.Raghu. He deposed that on 05.12.2012, three persons came to her house enquiring for a car. Of course, she was not able to say who were those three persons. She further stated that at about 7.00 p.m. on 06.12.2012, while at home, Sri.Raghu received a call requiring his car for a trip to Ooty. She further stated that Sri.Raghu had told the details of the conversation. 12 persons were there in the group and he was apprised that besides his car, there would be one more vehicle. Accordingly, he agreed to undertake the trip and he left home at 8.00 p.m. in his Tavera car for that trip to Ooty. It is her further version that at about 10.00 p.m. Sri.Raghu informed that the party was not good and hence he was returning by cancelling the trip. She as well as PW43, who is the father of Sri.Raghu deposed about those aspects and also the loss of communication thereafter. PW43 further deposed that PW3, who is a driver in another car owned by Sri.Raghu, brought that car home at about 10.00 p.m. on 06.12.2012. At that time, PW43 asked PW3 to contact Sri. Raghu, since he was on a long trip to Ooty. Twice PW3 made calls. Sri.Raghu duly replied that he already reached Puthucode on the way to Ooty and there was no issue. However, on getting a call later from Sri.Raghu that the party was not good and therefore he was returning home, PW43 along with PW3 went to Chelakkara and waited for 45 minutes. After about 45 minutes, PW3 left for his house. At 1.30 in the night, PW43 contacted PW3 over the phone and informed him that Sri.Raghu had not returned yet. Although PW3 tried to contact, there was no response from the mobile phone of Sri.Raghu. 26. The learned counsel appearing for the 2nd appellant submitted that the said behaviour of PW43 was unusual since Sri.Raghu being a driver for years together and having political and social activities, he was capable of taking care of himself. There was no need of having such an alarm for PW43 on hearing that Sri.Raghu was going to Otty, which is a place not very far from Chelakkara. There was no need of having such an alarm for PW43 on hearing that Sri.Raghu was going to Otty, which is a place not very far from Chelakkara. But the said contention cannot be appreciated since that was the natural anxiety of a father when his son went along with strangers to a relatively distant place. Yet another contention raised in this connection is that the version of PW3 as to where he met PWs.5 and 43 when he went to entrust the car back after day's trip is ambiguous; whether in the house of PW43 or the family house of PW5. That is not at all relevant since the whole of their remaining evidence stand trustworthy. PWs.3, 5 and 43 can well be believed insofar as their oral assertion that Sri.Raghu proceeded with his taxi car on a trip to Ooty on the evening of 06.12.2012. 27. PWs.2 and 4 are two taxi drivers at Chelakkara. The version of PW4 is that on 06.12.2012 at about 7.30 p.m. a person reached the taxi stand and demanded a vehicle on hire to go to the Airport at Karipur. He wanted a comparatively big vehicle. Since his vehicle was not suitable, PW4 contacted PW2, whose vehicle was an Innova Car. PW2 immediately reached there, but since the hirer was a stranger, they told him that only after reporting the matter in the Police Station, they could undertake the trip. He, who was identified by them in court to be the 2nd accused, gave an explanation that only because the driver of the already booked vehicle was not able to be contacted, he tried for another one. Soon, he went to the coined telephone booth in the Bakery of PW6 in the vicinity and made a call. After sometime he received a return call and thereafter he did not return to them. Both PWs.2 and 4 deposed that they felt curious and they tried to identify the number to which the 2nd accused made the call, but they could not connect to that number. On the next morning, they got news that Sri.Raghu was missing and his phone was switched off. Later on, getting information that the body of a person was found at Thirunellayi, they went there along with uncle of Sri.Raghu, Sri.Manikantan, to realise that the body was of Sri.Raghu. On the next morning, they got news that Sri.Raghu was missing and his phone was switched off. Later on, getting information that the body of a person was found at Thirunellayi, they went there along with uncle of Sri.Raghu, Sri.Manikantan, to realise that the body was of Sri.Raghu. Sri.Manikantan had identified the body of Sri.Raghu before the police, who had already reached there. It is their further version that the dead body was in the ambulance at the time when they reached and there were very serious injuries on his body. 28. Besides PWs.2 and 4, PW6 Subair, who was the owner of Anas Bakery at Chelakkara, also deposed about the presence of the 2nd accused there at around 7.30 p.m. on 6.12.2012. He deposed that a young man came to his shop to make a call using the coin box there. After the call, he went upstairs and after about half an hour he came down. PW6 identified the 2nd accused before the court. He further deposed that PWs.2 and 4 made an attempt to identify to which number the 2nd accused had dialed using the coin box. 29. PW8 deposed regarding a stranger reaching Karappatta on the evening of 06.12.2012. She is the owner of a stationery shop there. It is her version that one person came to her shop at Karappatta and made a call from the STD booth in her shop. It was on the previous day on which Sri.Raghu died. PW8 could not, however, identify the 2nd accused before the court as the person came her shop. PW9 runs an electric shop at Chelakkara. His shop, Friends Traders, is near the bus stand. He deposed before the court that at around 8 O’clock whilst his shop was to be closed, a young man reached his shop and demanded his mobile phone to make a call. The excuse stated by him was that there was no balance in his mobile phone. PW9 did not find anything unusual and he gave his phone for that person, who he identified as the 2nd accused, to make a call. He after making a call, duly had returned the mobile phone also. After some time, PW9 received a return call asking the 2nd accused to wait and he would reach soon. The 2nd accused did not wait there much. He after making a call, duly had returned the mobile phone also. After some time, PW9 received a return call asking the 2nd accused to wait and he would reach soon. The 2nd accused did not wait there much. PW9 added that on the next morning he came to know about the death of Sri.Raghu. 30. The learned counsel appearing for the 2nd accused submitted that the versions of PWs.2, 4, 6 and 9 have inherent infirmities that their descriptions about the person before the investigating officer were insufficient to identify the person and do not suit to his age and stature. Further, it is submitted that their identification of the 2nd accused before the court cannot be relied on, having regard to the long delay between the date of occurrence and the date of their examination before the court. A test identification parade was conducted by PW42, the then Judicial Magistrate of the First Class-II, Palakkad. Before PW42, PW2 and PW4 identified the 2nd accused. It is seen that before the test identification parade, which was conducted on 09.01.2013 the photograph of the 2nd accused was shown to the said witnesses by the investigating officer in order to ascertain whether he was the person reached on 06.12.2012 at the taxi stand at Chelakkara. Further, the photograph of the 2nd accused appeared in the newspaper before the test identification parade as admitted by PW4. In such circumstances, the identification of the 2nd accused during the test identification parade cannot be given much weight. However, the way in which they happened to see the 2nd accused, time they got to identify his features and his doubtful behaviour certainly would have left an indelible image of him in their mind. It cannot be expected that all the said witnesses, namely, PWs.2, 4, 6 and 9, who all saw the 2nd accused; not simply a glance, but for quite a reasonably long period, would mistake his identity. That apart, when PW59 deposed before the court about the involvement of the 2nd accused in the commission of the offence, the challenge about his identity practically fades away. Therefore, the said contention of the learned counsel for the 2nd accused cannot be attached much weight. From the said evidence, it can undoubtedly be said that it was the 2nd accused, who reached at Chelakkara taxi stand in the evening of 06.12.2012 to hire a taxi. Therefore, the said contention of the learned counsel for the 2nd accused cannot be attached much weight. From the said evidence, it can undoubtedly be said that it was the 2nd accused, who reached at Chelakkara taxi stand in the evening of 06.12.2012 to hire a taxi. 31. PW7 is an employee in Bappu Petrol Pump at Chelakkara. He had acquaintance with Sri.Raghu. Being a taxi driver for several years at Chelakkara, it is quite natural for PW7, an employee in the local petrol pump, to have acquaintance with the deceased. PW7 deposed that at about 9.00 p.m. on the day previous to his death, Sri.Raghu came to the petrol pump and filled full tank fuel in his Tavera Car. PW7 also deposed that another person was in the car, whom he identified in the court as the 2nd accused and that Sri.Raghu told him that he was on a trip to Ooty. PW7 admitted that he had no previous acquaintance with the 2nd accused, but he was categoric that for about 15 minutes the car was there and he could identify the 2nd accused. It is true that a petrol pump employee may not be able to identify every person reaching there. But when Sri.Raghu he knew earlier was murdered on the very next day, it is quite possible for PW7 to remember the 2nd accused, especially when PW7 saw him in the company of the deceased for a time span of about 15 minutes. 32. One reason pointed out by the learned counsel appearing for the accused to disbelieve PW7 is that no document regarding his employment in the petrol pump was produced and the CCTV footage in the petrol pump, although produced, has not been duly proved. If the testimony of PW7 is the only evidence to prove the identity of the 2nd accused, of course, such corroborative evidence should have been looked at before placing reliance on his evidence. But when there is enough evidence to prove the presence of the 2nd accused at Chelakkara taxi stand during the relevant time and PW59 stated his presence in the vehicle of Sri.Raghu, evidence of PW7 becomes creditworthy even without any document about his employment and the CCTV footage. But when there is enough evidence to prove the presence of the 2nd accused at Chelakkara taxi stand during the relevant time and PW59 stated his presence in the vehicle of Sri.Raghu, evidence of PW7 becomes creditworthy even without any document about his employment and the CCTV footage. So the assertion of the 2nd accused before the court that he saw the 2nd accused in the company of the deceased in the evening of 06.12.2012 can certainly be relied on. 33. Further evidence relying on by the prosecution to prove the involvement of accused Nos.1 to 3 in the murderous act of Sri.Raghu is the recovery of the vehicle, the weapon of offence, personal belongings of the deceased from the possession of those accused and also other articles. 34. PW59 was arrested on 07.12.2012 itself. On the very same night, based on his statement, the Tavera Car bearing Reg.N.KL-47-D-9429 was recovered. PW61 deposed that on the basis of the information revealed by PW59 that the car was abandoned at Ganapathy, he was taken to that place where they reached at 3.45 a.m. on 08.12.2012. The vehicle was parked on the road side and it was seized under Ext.P6. Ext.P68 is the statement he had given to PW61 that lead to the recovery of the Tavera car. 35. MO8 is the knife allegedly used to stab the deceased and tear off his abdomen. It was recovered at the instance of the 2nd accused. The 2nd accused was arrested on 12.12.2012 at 12.00 noon from Govinda Estate at Kollur in Karnataka. On getting reliable information, PW61 reached there and arrested the 2nd accused. Regarding his arrest, some improbability is tried to be brought out, but on a detailed analysis, we find no reason to doubt evidence regarding his arrest. He was soon produced before the jurisdictional Magistrate and on 17.12.2012 after getting him in the police custody, recorded his statement. Based on his statement that the knife was thrown away near the pond at Muthannamkulam, Coimbatore, PW61 took the 2nd accused to that place. The knife the 2nd accused traced out from among the bushes there was seized under Ext.P10 mahazar by PW61. PW28 is a witness to Ext.P10. The recovery was effected at about 12.30 p.m. MO8 was identified by PW59 before the court as the knife used to inflict injury on the body of the deceased. The knife the 2nd accused traced out from among the bushes there was seized under Ext.P10 mahazar by PW61. PW28 is a witness to Ext.P10. The recovery was effected at about 12.30 p.m. MO8 was identified by PW59 before the court as the knife used to inflict injury on the body of the deceased. The evidence regarding recovery of MO8 stands reliable, despite challenges posed by the accused by subjecting those witnesses to searching cross-examination. 36. MO4, mobile phone was recovered on 16.12.2012 from a well at Thekke Gramam. PW59 deposed in court that the mobile phone of Sri.Raghu was dropped in a well at Thekke Gramam near Kannambra. After receiving PW59 in custody from the court on 14.12.2012, his statement was recorded by PW61. His revelation then regarding the mobile phone was also the same. After they reached there, the well water was pumped out by the fire force personnel. PW35 is an official from the Fire Force Department. He stated confirming that. From the well, MO4 mobile phone was recovered. The statement of PW59 leading to the recovery is stated in Ext.P59, the mahazar for the recovery. Besides PW61, PW53 also is a signatory to that mahazar. MO4 was duly identified as the phone in the possession of Sri.Raghu by PWs.5 and 43, his widow and father. That evidence lends sufficient corroboration of the version of PW59 in that regard. 37. At the time of arrest of the 2nd accused, he was in possession of the registration certificate of the car belonging to the deceased and a few other articles. The R.C.Book as well as other articles in his possession were seized under Ext.P57 mahazar. Custody of the original R.C.Book of the vehicle (MO28) of the deceased and connected documents with the 2nd accused after the death of Sri.Raghu goes a long way to establish his involvement in the commission of the offence. 38. On the basis of the statement of the 2nd accused, the syringe said to have been used to inject cyanide on the body of Sri.Raghu; a foiled plot, was also recovered. PW61 stated that on questioning the 2nd accused gave a statement that the syringe was thrown away at Kakkottupadom, Elanad. Based on that statement, PW61 took the 2nd accused to that place and recovered the syringe as traced out by the 2nd accused. Ext.P8 is the mahazar. PW61 stated that on questioning the 2nd accused gave a statement that the syringe was thrown away at Kakkottupadom, Elanad. Based on that statement, PW61 took the 2nd accused to that place and recovered the syringe as traced out by the 2nd accused. Ext.P8 is the mahazar. It is attested by PW27, an independent witness from the locality. MO7 is the syringe. It was subjected to a chemical examination. Ext.P90 is the report of chemical analysis. The report reveals that the pale yellow liquid contained in the syringe was sodium cyanide, which is a highly toxic substance. The report states that sodium cyanide is among the fastest acting of all the poisons. Statement of PW59 was that the 1st accused attempted to inject cyanide on the body of the deceased and as that attempt failed, they physically prevailed over and hacked him to death. The evidence regarding recovery of MO7 under Section 27 of the Evidence Act, 1872 and the presence of sodium cyanide in a liquid form in it amply corroborated the evidence of PW59 in that regard. 39. PW61 deposed that on 01.04.2013 he had arrested the 1st accused. His mobile phone, MO43, was recovered under Ext.P21 mahazar. His house was searched and a few articles belonging to the deceased were found inside that house. The recovery was in fact as pointed out by the 1st accused. Those articles were seized on preparing Ext.P61 search list. The articles so recovered include a purse, conductor licence, voters identity card, a dhoti, etc., all belonging to the deceased. Those articles were duly identified by PWs.5 and 43. The recovery of those objects from the custody of the 1st accused is relevant under Section 8 of the Evidence Act as a subsequent conduct and it confirms the complicity of the 1st accused with the crime. 40. On the basis of the statement of the 2nd accused, MO2 bed-sheet, MO3 flex sheet and MO18 plastic cover removed from the car of the deceased, were recovered from near Nadupuni Road near Pollachi. Ext.P11 is the seizure mahazar to which PW29 subscribed as a witness. On the basis of the further statement of the 2nd accused, PW61 recovered MO1 thorthu at 12.00 noon on 17.12.2012. The statement of the 2nd accused was that the thorthu found in the vehicle was abandoned near the comfort station near Gandhi Park at Muthannamkulm. Ext.P11 is the seizure mahazar to which PW29 subscribed as a witness. On the basis of the further statement of the 2nd accused, PW61 recovered MO1 thorthu at 12.00 noon on 17.12.2012. The statement of the 2nd accused was that the thorthu found in the vehicle was abandoned near the comfort station near Gandhi Park at Muthannamkulm. The said statement led to the recovery of MO1. Ext.P9 is the mahazar for the recovery to which PW28 is a witness. MO1 and MO2 were identified by PW5, wife of the deceased, as the objects with the deceased while leaving home for Ooty. Recovery of those articles based on the statement of the 2nd accused further establishes his complicity with the crime. 41. Besides those articles, blood stained dresses worn by accused Nos.1, 2 and 3 were also recovered on the basis of the statements given by the accused while in the custody of PW61. MO13 is a stone seized from the place of occurrence by PW61 while he prepared Ext.P9 scene mahazar at 2.00 p.m. on 08.12.2012. Apart from MO13, dried leaves and an empty liquor bottle, MO38 were also seized from the place of occurrence. Ext.P5 is the mahazar and PW25 is a witness to it. PW59 identified MO13 as the stone used to hit the deceased. 42. How accused Nos.1 to 4 could use the Alto Car bearing Registration No. KL-49-B-8523 was also attempted to be proved by the prosecution. PW30 Ramesh stated that he gave the car to PW23 Ajith. PW30 is not its registered owner, but he stated that it was in his possession and on a daily rent of Rs.2,000/-he gave it to PW23. He in turn deposed that he gave that car to PW15 Jithesh since he owed an amount of Rs.25,000/-to PW15. He testified that he had given that car to the 8th accused Rajendran in consideration of Rs.30,000/-that he had borrowed from the 8th accused. The case of the prosecution is that from him accused Nos.1 to 3 got the car. There is no document to show such successive handing over of the car. The said evidence, however, has no much relevance, except to connect the 8th accused with the charge of conspiracy, since PW59 deposed in court about their travelling in that car and his evidence obtained sufficient corroboration from the independent evidence. 43. There is no document to show such successive handing over of the car. The said evidence, however, has no much relevance, except to connect the 8th accused with the charge of conspiracy, since PW59 deposed in court about their travelling in that car and his evidence obtained sufficient corroboration from the independent evidence. 43. From the aforesaid evidence, we find sufficient corroboration to the evidence tendered by PW59 before the court on every material particulars. The various incidents, such as, the 2nd accused availed the car of the deceased on hire, accused Nos.1 to 4 travelled in that car, they together caused the death of Sri.Raghu, they deposited his body at Thirunellayi, they abandoned the car at Ganapathy, they threw away the mobile phone of the deceased in a public well at Puthukkode Gramam, they threw away the knife, which is the weapon of offence near Muthannamkulam at Coimbatore, they abandoned personal belongings of the deceased, such as thorthu, bed-sheet, flex sheet, etc. at different places are the facts stated by PW59 and got sufficient affirmation from the independent evidence. 44. One of the contention raised by the learned counsel for the accused to disbelieve PW59 is that he gave exculpatory statement, at least, as regards his hitting the deceased using a stone. We have stated above that the said contention is untenable since the said statement is not shown to be an exculpatory one. Yet another contention urged to improbabilise the evidence of PW59 is that the 2nd accused had no burn injury when he was examined by PW39, the Doctor. Ext.P26 is the wound certificate issued by PW39. Besides, an abrasive injury on the right linger finger, the 2nd accused had a healed wound on his right thumb. What PW59 deposed is that the 2nd accused sustained a burn injury when he tried to lit fire at the place where blood of the deceased spilled. The 2nd accused was examined by PW39 on 14.12.2012, which was after eight days after the incident. So the healed wound on his thumb might be the mark of the burn. Be that as it may, that is not a serious infirmity having the effect of disbelieving PW59. Therefore, the evidence of PW59, the approver can safely be relied on. It necessarily follows that the court below rightly found accused Nos.1 to 3 guilty of the offence of murder of Sri.Raghu. 45. Be that as it may, that is not a serious infirmity having the effect of disbelieving PW59. Therefore, the evidence of PW59, the approver can safely be relied on. It necessarily follows that the court below rightly found accused Nos.1 to 3 guilty of the offence of murder of Sri.Raghu. 45. In order to prove the conspiracy hatched by accused Nos.1 to 8, the evidence proposed is procuring of cyanide by the 8th accused from PW20, finding the 5th accused in the company of accused Nos.1 to 4 prior to the incident, revelation of accused Nos.2 and 5 at the jail to PW59 about the plot they along with accused Nos.1 and 3 devised to rob a car for the purpose of snatching away smuggled gold and the telephone conversation between those accused. PW20 deposed that he collected cyanide from a goldsmith with the intention of consumption to commit suicide. But, he did not. He kept it in his bag, and while so, on a pooja day following incessant instances, he gave a part of the cyanide to the 8th accused. When cyanide was so given has not been stated. He added that after an hour on that date, accused Nos.1 and 5 reached the room of PW20, which was in Coimbatore. 46. The syringe, MO7, seized from the place of occurrence contained sodium cyanide solution. The learned counsel appearing for accused Nos.5 and 6 contended that how the cyanide given by PW20 in a solid form became liquid form as contained in MO7 is not explained. Such a contention is so flimsy that cyanide, being a water soluble material, one can readily infer how it would have happened. It was the 1st accused, who tried to inject cyanide using MO7. Whether the cyanide in that syringe was the cyanide given by the 8th accused is not proved. Even if it is taken that accused Nos.1 and 5 reached the room of PW20 while the 8th accused was there and there were telephone calls between them, that would not serve the purpose of legal evidence although a strong inference is possible. Such an inference in the absence of any other evidence is not sufficient to prove that the 8th accused was a privy to the conspiracy. Such an inference in the absence of any other evidence is not sufficient to prove that the 8th accused was a privy to the conspiracy. Similarly, the evidence let in by the prosecution is totally insufficient to prove participation of accused Nos.6 and 7 in the conspiracy hatched to rob a car. 47. We do not forget the impossibility of getting evidence about conspiracy which often than not takes place in secrecy. But the prosecution could not adduce any evidence to connect accused Nos.6 to 8, which would be relevant under Section 10 of the Evidence Act even. Only if the prosecution is able to prove with the aid of believable evidence that accused Nos.6 and 7 knew about the plan of other accused to rob a car for using to snatch off smuggled gold they can be held responsible for the offence of nondisclosure of the planning for commission of the offence in police. The evidence brought on record is thus insufficient to implicate accused Nos.6, 7 and 8 to the said offences. 48. In the case of the 5th accused, the position is different. PW59 deposed that the 5th accused was in the company of himself and accused Nos.1 to 3 while they consumed liquor just before proceeding to board the car of the deceased. PW59 also stated that both accused Nos.2 and 5 revealed to him at jail regarding the plan of robbing the car and smuggled gold. The further evidence the prosecution places reliance on in that respect is the telephone conversations the 5th accused had with the 1st accused and others. 49. PW61 deposed that the telephone number of the 5th accused was 8086909616 and that of the 1st accused was 8606304606. It is stated that the 1st accused received five calls from the 5th accused on 05.12.2012 and one call on 06.12.2012. The said evidence is assailed by the learned counsel appearing for the 5th accused on the ground that the call data records in relation to the phone of the 5th accused, Ext.P47 was not duly proved. True, it is not certified as provided in Section 65B of the Evidence Act. The mobile phone in which the 5th accused used the aforesaid number was seized from his possession at the time of his arrest. That mobile phone connection was availed in the name of his mother. That fact has been proved. True, it is not certified as provided in Section 65B of the Evidence Act. The mobile phone in which the 5th accused used the aforesaid number was seized from his possession at the time of his arrest. That mobile phone connection was availed in the name of his mother. That fact has been proved. But Ext.P47, which is an electronic record, is not duly certified. Therefore, it cannot be relied on. Ext.P32 is the call data record relating to mobile number 8606304606, which is corresponding to IMEI number 864889010566405. That connection was not in the name of the 1st accused as could be seen from Ext.P33. But the said mobile number was of the SIM card in the mobile phone in the possession of the 1st accused at the time of his arrest. Therefore, it can well be found that the calls from the said mobile number were made by him. Ext.P32 is certified in terms of the provisions of Section 65B of the Evidence Act. It can be seen from Ext.P32 that there were atleast five calls to the said mobile phone from the mobile number of the 5th accused on 05.12.2012. There were two return calls on that day. Also, there were two calls between the said numbers on 06.12.2012. From that, it is evident that accused Nos.1 and 5 were contacting each other frequently on 05.12.2012 and 06.12.2012, which is relevant under Section 10 of the Evidence Act. 50. The confession said to have been made by accused Nos.2 and 5 to PW59 at the jail is sought to be discarded by the learned counsel for the 5th accused on the ground that it is a confession by a co-accused and PW59 is no longer an accused, but only a witness. Inasmuch as PW59 does not stand trial, it is argued that the confession said to have been made to him by the 5th accused comes in the mischief of Section 30 of the Evidence Act and inadmissible. The learned counsel places reliance in this regard on the decisions in Kashmira Singh v. State of Madhya Pradesh [ AIR 1952 SC 159 ], Hari Charan Kurmi and Jogia Hajam v. State of Bihar [ AIR 1964 SC 1184 ] and Asar Mohammad and others v. State of Uttar Pradesh [ (2019) 12 SCC 253 ]. 51. The learned counsel places reliance in this regard on the decisions in Kashmira Singh v. State of Madhya Pradesh [ AIR 1952 SC 159 ], Hari Charan Kurmi and Jogia Hajam v. State of Bihar [ AIR 1964 SC 1184 ] and Asar Mohammad and others v. State of Uttar Pradesh [ (2019) 12 SCC 253 ]. 51. The law laid down in the aforesaid decisions was concerning probative value and reliability of a confession made by a co-accused. Evidence of PW59, who is an approver stands on a different footing. It is true that confession by the 5th accused to PW59 was when he was an accused. When he turned to be an approver, his status is that of a witness and the confession to him became evidence. Therefore, the evidence tendered by him before the court cannot be termed as a confession of a co-accused attracting the limitations under Section 30 of Indian Evidence Act. The evidence of PW59 regarding the confession made to him by the 5th accused can therefore be acted upon, subject to its reliability. The other evidence corroborates the version of PW59 relating to the revelation of the 5th accused about the conspiracy. He was with accused Nos.1 to 3 and PW59 on the same day prior to hiring the car of the deceased and the fateful act of his murder. The said facts coupled with the telephone conversion between accused Nos.1 and 5 on 05.12.2012 and 06.12.2012 proved beyond doubt that the 5th accused was also a party to the conspiracy hatched by them to rob a car and do away with the driver. That certainly gets confirmation from the confession by the 5th accused to PW59 while they were in jail. 52. In view of what are stated above, the conviction of accused Nos.2 and 3 and 5 is liable to be confirmed. We are of the view that the sentence imposed on them is commensurate to the offence they have committed. Conviction of and sentence imposed on accused Nos.6, 7 and 8 are liable to be set aside. Therefore, Crl.Appeal Nos.958 of 2020, 263 of 2021 and 752 of 2021 are dismissed. Crl.Appeal Nos.507, 600 and 607 of 2020 are allowed. Accused Nos.6 to 8 are acquitted and set at liberty.