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2024 DIGILAW 365 (KER)

Arun sukumaran, S/o. Sukumaran v. State Of Kerala

2024-03-19

JOHNSON JOHN, P.B.SURESH KUMAR

body2024
JUDGMENT : Johnson John, J. The appellants, who are accused Nos. 2, 1 and 3 respectively in S.C. No. 560 of 2012 of the Additional Sessions Judge-VII, Ernakulam, have filed the above appeals challenging the conviction and sentence imposed on them for the offences under Sections 302 and 394 r/w Section 34 of IPC as per the impugned judgment dated 21.06.2016. 2. The prosecution case is that the deceased Sasidharan alias Sasi was the driver of a tourist taxi car bearing registration No.KL-17/A-7750 owned by PW1 and on the morning of 22.09.2008, he left his home with the taxi car as usual to the taxi stand near KSRTC bus stand, Muvattupuzha and has not returned to his house on that night and on the next day, when the owner of the vehicle attempted to contact him through phone, the reply was that ‘the phone is switched off’ and when the deceased failed to return even on 24.09.2008, PW1, the owner of the vehicle, has given Exhibit P1, First Information Statement, in Muvattupuzha Police Station and accordingly, PW48, Sub Inspector of Muvattupuzha Police Station, registered Crime No. 1223 of 2008 of Muvattupuzha Police Station for ‘man missing’ and thereafter, PW53, the then Circle Inspector of Muvattupuzha, took charge of the investigation and he got information that the dead body of Sasidharan was recovered from Kaliyar river and Crime No. 267 of 2008 under Section 174 Cr. P.C was registered in that connection in Pothanikkad Police Station and accordingly, PW53 proceeded to Pothanikkad Police Station and inspected the dead body of the deceased. 3. P.C was registered in that connection in Pothanikkad Police Station and accordingly, PW53 proceeded to Pothanikkad Police Station and inspected the dead body of the deceased. 3. PW53 also got information that the vehicle driven by the deceased was found abandoned at Anamala in Tamil Nadu and accordingly, he proceeded to that place along with police party and inspected the vehicle with the assistance of the Finger Print Expert and photographer and during the course of investigation, it came to the notice of the Investigating Officer that a similar case was registered in Aluva Police Station as Crime No. 2131 of 2008 under Section 394 IPC and on verification of the case diary and questioning the de facto complainant in the said case, it is revealed that the assailants robbed a mobile phone from his possession and therefore, PW53 came to the conclusion that in all probability the assailants in both the cases are the same and therefore, he has taken steps for identifying the person who is now using the said mobile phone and has given requisition to various companies and subsequently got information that PW12, Jinson George, is using the said mobile phone and on questioning PW12, it is revealed that it was the first accused herein who entrusted the said mobile phone to PW8 who subsequently sold the same in a mobile shop at Kothamangalam, from where PW11 purchased MO8 mobile phone for the use of his friend PW12. The first accused was taken to custody on 15.10.2008 and on questioning the first accused, the involvement of the second and third accused were also revealed and on the same day at about 9.30 a.m., the second and third accused were arrested from a place near the Revenue Tower, Kothamangalam. 4. As per the final report, the accused persons, in furtherance of their common intention to rob the taxi car of the deceased, after murdering him, hired the said car while it was parked in the taxi stand near KSRTC bus stand Muvattupuzha. The second accused got into the front left seat and accused Nos. 1 and 3 got into the back seat. The second accused got into the front left seat and accused Nos. 1 and 3 got into the back seat. The accused persons hired the vehicle to take them to Pothanikkad and on the way, when the vehicle reached near Mary Land Public School, the second accused asked the deceased to stop the car for passing urine and when the deceased stopped the car, the first accused strangulated the deceased with a bath towel and the second accused tied the hands and legs of the deceased with plastic tape and accused Nos. 1 and 2 shifted the deceased to the back seat of the car by force and thereafter, the second accused drove the car towards Pyngottoor side and when the vehicle reached Kallor bridge over Kaliyar river kulappuram in Kumaramangalam village, the first accused robbed Rs.1500/- and mobile phone from the shirt pocket of the deceased and accused Nos. 1 and 3 took the deceased from the car and threw him in Kaliyar river and thereafter, left the place with the car of the deceased and the accused persons are thereby, alleged to have committed the offences under Sections 302 and 394 r/w Section 34 of IPC. 5. The final report was taken on file as C.P No.10 of 2010 of Judicial First Class Magistrate Muvattupuzha and after committal, the case was numbered as S.C. No. 560 of 2012 and thereafter made over to the court of the Additional Sessions Judge-VII, Ernakulam. 6. When the accused persons were produced before the trial court, after hearing both sides, charge was framed for the offences under Sections 302 and 394 r/w Section 34 of IPC and when the charge was read over and explained to them, they pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 55 and marked Exhibits P1 to P72 and MOs 1 to 24 to prove the charge against the accused persons. Since it is found that the accused persons are not entitled for an acquittal under Section 232 Cr.P.C., they were called upon to enter on their defence. From the side of the defence, DWs 1 to 4 were examined and Exhibits D1 to D5 were marked. 7. Since it is found that the accused persons are not entitled for an acquittal under Section 232 Cr.P.C., they were called upon to enter on their defence. From the side of the defence, DWs 1 to 4 were examined and Exhibits D1 to D5 were marked. 7. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, by the impugned judgment dated 21.06.2016, convicted the accused persons and sentenced them to undergo imprisonment for life and to pay a fine of Rs.2,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for two years each for the offence under Section 302 r/w Section 34 IPC and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year each for the offence under Section 394 r/w Section 34 IPC. 8. Heard the learned counsel for the appellants, Sri. Ieans C. Chamakkala, Dinesh Mathew J. Muricken and Arun P. Antony and the learned Public Prosecutor, Sri. E. C. Bineesh, and perused the records. 9. The point that arises for consideration in these appeals is whether the conviction entered and the sentence passed against the accused persons is legally sustainable. 10. It is argued on behalf of the appellants that the evidence from the side of the prosecution is of circumstantial nature and that the prosecution has not succeeded in establishing the circumstances cogently and firmly and those circumstances are not of a definite tendency unerringly pointing towards the guilt of the accused. It is argued that the prosecution has adduced contradictory evidence regarding the recovery of MO8, mobile phone, and MO1 key chain and the evidence regarding the mode, time and place of the arrest of accused Nos. 1 to 3 are suspicious and the alleged recovery of material objects on the basis of the alleged disclosure statements of the accused are also not proved beyond reasonable doubt. It is also argued that the material witnesses were under threat and influence of the police and that the court below ought to have found that the accused were entitled for the benefit of reasonable doubt. 11. It is also argued that the material witnesses were under threat and influence of the police and that the court below ought to have found that the accused were entitled for the benefit of reasonable doubt. 11. The learned Public Prosecutor argued that the prosecution has cogently and firmly established all the circumstances connecting an unbroken chain of links consistent only with the hypothesis of the guilt of the accused persons and that there is no valid ground to interfere with the findings of the trial court. 12. PWs 2 and 3 are the sons of the deceased and PW4 is the wife of the deceased and their evidence shows that the deceased Sasidharan left the house as usual in the morning on 22.09.2008 with the taxi car to the taxi stand near KSRTC bus stand, Muvattupuzha and thereafter, he was found missing. PW1, the owner of the taxi car, deposed that when he attempted to contact the deceased through mobile phone in the morning on 23.09.2008, the mobile phone of the deceased was switched off. According to PW1, the Manager of a Bank who hired the vehicle of the deceased, informed him that 2 seals of the bank are there in the vehicle and therefore, he contacted the daughter of the deceased and when he came to know that the deceased has not returned to the house, he instructed the daughter of the deceased to inform her father to contact him as and when he reaches and when the deceased failed to return till the morning of 24.09.2008, he had given Exhibit P1 statement to the police and he also identified his signature in Exhibit P1, First Information Statement. 13. PW7, a taxi driver, is the de facto complainant in C.C. No. 54 of 2009 on the file of the Judicial First Class Magistrate, Aluva and he deposed regarding the occurrence in the said case and also identified accused Nos. 13. PW7, a taxi driver, is the de facto complainant in C.C. No. 54 of 2009 on the file of the Judicial First Class Magistrate, Aluva and he deposed regarding the occurrence in the said case and also identified accused Nos. 1 and 2 as the persons who hired his vehicle on 17.09.2008 and his evidence shows that the first accused strangulated his neck with a cloth and the second accused covered his face with something and he lost his consciousness and thereafter, when he regained his consciousness, his hands and legs were tied together and he was lying in the space in between the front seat and back seat of the car and the second accused was driving the vehicle. According to PW7, he managed to untie his hands and legs and when the accused persons stopped the vehicle for purchasing water, he opened the door and ran away and subsequently reported the matter to the police. According to PW7, in the said occurrence, he lost his mobile phone and Rs. 1500/- and he identified MO8 as his mobile phone and he also identified accused Nos. 1 and 2 as the persons who attacked him in the said occurrence. 14. However, in cross examination, PW7 admitted that he was examined as a witness before the Judicial First Class Magistrate, Aluva in C.C No. 54 of 2009 in connection with the incident which he deposed in chief examination and when it is brought to the notice of the witness that when he was examined as a witness in the said case, he denied the involvement of the second accused in the said case, PW7 answered that he cannot remember the same. The certified copy of his deposition in the said case is marked as Exhibit D1 and the certified copy of the judgment in C.C. No. 54 of 2009 of the Judicial First Class Magistrate-I, Aluva is marked as Exhibit D5. Even though, PW7 identified MO8 as his mobile phone robbed by accused Nos. The certified copy of his deposition in the said case is marked as Exhibit D1 and the certified copy of the judgment in C.C. No. 54 of 2009 of the Judicial First Class Magistrate-I, Aluva is marked as Exhibit D5. Even though, PW7 identified MO8 as his mobile phone robbed by accused Nos. 1 and 2 on 17.09.2008, his evidence in cross examination and a perusal of Exhibits D1 and D5 would show that his evidence in this case is not at all reliable, in as much as it is clear from Exhibit D1 that the second accused in the said case was not among the persons who attacked him and further, it can be seen from Exhibit D5 judgment that the accused in the said case was acquitted under Section 248(1) Cr.P.C. 15. The evidence of PW53, the then Circle Inspector of Muvattupuzha Police Station, who conducted the investigation of this case, shows that he proceeded with the investigation on the assumption that Crime No. 2131 of 2008 of Aluva Police Station registered under Section 394 IPC is a similar case and that in all probability the assailants in both the cases are the same and accordingly, he identified the IMEI number of the stolen mobile phone of PW7 and forwarded requisition to various mobile companies to identify the person who is using the said mobile phone and it was found that PW12 was using the said mobile phone. 16. PWs 8 to 11 are the witnesses examined to connect the first accused with MO8 mobile phone used by PW12. According to PW8, the first accused, Sandeep, entrusted a mobile phone to him for sale and he sold the same in a mobile shop at Kothamangalam for Rs. 600/- and entrusted the amount to the first accused. PW9 deposed that the first accused Sandeep is his neighbour and that he purchased a sim card for the first accused by using his identity card during 2007. PW10 deposed that he is working in a mobile shop and on 30.09.2008, he purchased a mobile phone and subsequently, the same was sold to one Kiran Babu by another staff in the mobile shop. 17. PW11, Kiran Babu, deposed that while he was studying in M.A College, Kothamangalam, he purchased a mobile phone from a mobile shop near Kothamangalam Revenue Tower on 30.09.2008 and given the same for the use of PW12. 17. PW11, Kiran Babu, deposed that while he was studying in M.A College, Kothamangalam, he purchased a mobile phone from a mobile shop near Kothamangalam Revenue Tower on 30.09.2008 and given the same for the use of PW12. According to PW11, PW12 was using the said mobile phone and subsequently, the Circle Inspector of Muvattupuzha came to his house and only then he came to know that the said mobile phone is involved in a case. PW11 also stated that he pointed out the mobile shop and the person from whom he purchased the mobile to the Circle Inspector. PW11 identified the said mobile phone as MO1 before the court. 18. PW12 deposed that PW11 has purchased a mobile phone for him and that he was using the same with his SIM and subsequently, PW11 has shown the shop to the Circle Inspector. PW12 also identified MO8 before the court. 19. Even though, the prosecution examined PWs 7 to 12 to establish that MO8 is the mobile phone robbed from PW7 and subsequently, sold in a mobile shop and thereafter, purchased by PW12 and that PW12 was using the said mobile from 30.09.2008 onwards, the evidence of PWs 46 and 53 regarding the arrest and recovery of MOs 8 and 13, mobile phones, from the possession of the first accused on 15.10.2008 is in direct contradiction to the evidence of PWs 7 to 12 regarding the use and possession of MO8, mobile phone, by PW12 from 30.09.2008 onwards. PW46 deposed that while working as Police Constable in Muvattupuzha Police Station, he was in the Crime Investigation Team of the Circle Inspector and on 15.10.2008, the Circle Inspector informed him that one of the accused in this case is standing near KSRTC stand, Kothamangalam and accordingly, he along with Head Constable, George, reached near KSRTC bus stand and after identifying the accused with the photo in their possession, produced him before the Circle Inspector of Muvattupuzha Police Station. 20. In cross examination, PW46 would say that he has not taken custody of the accused and he only took the accused with him to produce before the Circle Inspector. PW46 admitted that he has not prepared any documents and he is also not sure whether he made any entry in his notebook while taking the first accused to the Police Station. PW46 admitted that he has not prepared any documents and he is also not sure whether he made any entry in his notebook while taking the first accused to the Police Station. When a specific question was put to PW46 as to whether there will be any entry in the General Diary and notebook about taking the first accused to the Police Station, the witness answered that there may be entries in the GD and note book. 21. PW53 deposed that at about 6 a.m., on 15.10.2008, he got information from Head Constable, George, that the first accused in this case is detained near KSRTC bus stand, Kothamangalam by PW46 and Head Constable, George, and as per his direction, they produced the first accused in Muvattupuzha Police Station. PW53 stated that on questioning, he was satisfied about the involvement of the first accused in the case and accordingly, he recorded the arrest of the first accused at about 7.30 a.m. on that day and while conducting body search, he recovered a Nokia mobile phone from his shirt pocket and a mobile of Motorola company from his pant pocket and he seized the same by preparing Exhibit P34 mahazar. The Nokia mobile phone recovered from the shirt pocket of the first accused is identified as MO8 and the mobile phone of Motorola company recovered from the pant pocket of the first accused is identified as MO13. 22. When it is brought out that the evidence of PWs 7 to 12 regarding MO8 mobile phone is irreconcilable with what is stated by PW53 regarding the recovery of MO8 from the shirt pocket of the first accused on 15.10.2008, the learned Public Prosecutor submitted that the same is only a mistake. 22. When it is brought out that the evidence of PWs 7 to 12 regarding MO8 mobile phone is irreconcilable with what is stated by PW53 regarding the recovery of MO8 from the shirt pocket of the first accused on 15.10.2008, the learned Public Prosecutor submitted that the same is only a mistake. But, it is pertinent to note that the evidence of PW53 shows that he proceeded with the investigation of this case on the assumption that the assailants in this case and the previous similar case registered as Crime No. 2131 of 2008 in Aluva Police Station are the same and he identified the person who is using the robbed mobile phone of PW7 by identifying the IMEI Number of that mobile phone and by giving requisition to various mobile companies and thereby, came to know that PW12, Jinson George, was using the said mobile phone and that it was the first accused who sold the said mobile phone in a mobile shop through PW8 on 30.09.2008 and that subsequently PW11 purchased the said mobile phone on 30.09.2008 for and on behalf of PW12 and entrusted the same to PW12. We find that the contradictory evidence adduced from the side of the prosecution regarding the recovery of MO8, mobile phone, cannot be ignored as a mistake in a serious case of murder, especially when the prosecution is relying only on circumstantial evidence to connect the accused persons with the crime. 23. Another important circumstance relied on by the prosecution is the recovery of MO1, key chain of the taxi car driven by the deceased, on the basis of the disclosure statement of the second accused. PW53 deposed that in the confession statement of the second accused, it is stated that the remaining portion of the plastic cord and the key of the Indica car are kept in his house and that he will take out the same, if he is taken to that place and accordingly, PW53 as led by the second accused, reached house bearing No. XXVI/350 of Kothamangalam Municipality where the accused is residing and from the cupboard in the bedroom, he took out the key of the Indica car and plastic cord and the same was recovered by preparing Exhibit P20 mahazar. The relevant portion of the disclosure statement of the second accused is marked as Exhibit P20(a). The relevant portion of the disclosure statement of the second accused is marked as Exhibit P20(a). The key chain is identified as MO1 and the plastic tape as MO12. 24. The learned counsel for the appellants pointed out that as per the evidence of PW53 and Exhibit P20, MO1, key chain, was recovered only on 15.10.2008. But, the evidence of PW1 in this case would show that on 24.09.2008, when he produced the duplicate key of the vehicle before the Circle Inspector, the Circle Inspector has handed over him another key of the vehicle with a brown key chain of K.P Chacko and Sons and according to PW1, the same was the original key of his vehicle. In chief examination PW1 stated as follows: 25. The learned Public Prosecutor argued that the evidence of PW1 that the Circle Inspector handed over the original key of the vehicle, when he produced the duplicate key, is not with reference to what transpired on 24.09.2008 and that it can only be with reference to an incident that transpired after the recovery of MO1, key chain, on the basis of the disclosure statement of the second accused on 15.10.2008 as per Exhibit P20 seizure mahazar. But, it is pertinent to note that no such clarification is brought out while re-examining PW1. In this connection, it is pertinent to note that PW53 has admitted in cross examination that when he saw the vehicle within the jurisdiction of Anamala Police Station, the key of the vehicle was not available and therefore, it was by using the key collected from PW1 that the car was sent to the Scientific Assistant for examination. In cross examination page 48, PW53 deposed as follows: 26. It can be seen from the above evidence of PW53 in cross examination that the abandoned car seen within the jurisdiction of Anamala Police Station was produced before the Scientific Assistant on 25.09.2008 by using the key collected from PW1 and further the evidence of PW49, Sub Inspector in charge of Anamala Police Station, also shows that on 23.09.2008, when the car was found parked on the roadside near Mary Matha Children School, the car key was not available and therefore, he could not take the car to the Police Station. The evidence of PW47, Scientific Assistant, Regional Forensic Science Laboratory, Thrissur, shows that on 25.09.2008, he examined Tata Indica car bearing registration No. KL-17/A-7750 involved in this case and therefore, we find that the evidence of PW1 in chief examination that when he produced the duplicate key of the car before the Circle Inspector, the Circle Inspector handed over the original key of the car with the key chain of K.P. Chacko and Sons can only be with reference to the incident that transpired on 24.09.2008 and in that circumstance, we find that PW53, the Investigating Officer, was in possession of MO1, key chain, as on 24.09.2008 and under such circumstances, it cannot be held that it is at the instance of the second accused that MO1 key chain was recovered. 27. According to PW53, MO12, plastic tape, was also recovered on the basis of the disclosure statement of the second accused on 15.10.2008, as per Exhibit P20 seizure mahazar. In this connection, the learned counsel for the appellants invited our attention to the evidence of PW21, who deposed that he is conducting a shop near Kothamangalam bus stand and that one Lalitha purchased plastic tape from his shop. The evidence of PW21 in cross examination also shows that the said Lalitha is residing at Mathirappilly. But, it is not forthcoming as to how the prosecution is connecting the accused persons with the purchase of plastic cord by the above said Lalitha from the shop of PW21. 28. In a case of circumstantial evidence, the court can draw inference only from the established facts. In Padala Veera Reddy Vs. State of A.P. and Ors. But, it is not forthcoming as to how the prosecution is connecting the accused persons with the purchase of plastic cord by the above said Lalitha from the shop of PW21. 28. In a case of circumstantial evidence, the court can draw inference only from the established facts. In Padala Veera Reddy Vs. State of A.P. and Ors. ( AIR 1990 SC 79 ), the Hon'ble Supreme Court has laid down that:- "When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 29. The Hon'ble Supreme Court of India in "Hanumant Govind Nargundkar and Anr. Vs. State of Madhya Pradesh", reported in AIR 1952 SC 343 , has observed thus:- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.” 30. In Mulakh Raj v. Satish Kumar (1992) 3 S.C.C. 43 , the Hon’ble Supreme Court held as follows:- “Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The Court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and the sentence would follow.” 31. The learned Public Prosecutor argued that the evidence of PWs 5 and 6 would show that the second accused, along with two others, reached Pollachi with the Indica car involved in this case and sought the help of PW6 for dismantling the vehicle and that the evidence of PWs 14 and 15 would show that a white Indica taxi car beginning with registration No. KL-17 reached Govindapuram check post at 4 a.m. on 23.08.2008 and requested for issuance of permit for travelling to Tamil Nadu and they also identified the second and third accused in this case. 32. The other circumstances relied on by the prosecution are the recovery of MO2, petro card, on the basis of the disclosure statement of the third accused as per Exhibit P23, mahazar, and recovery of Exhibit P5, temporary permit, and Exhibit P6, vehicle movement register, on the basis of the disclosure statement of the second accused as per Exhibit P22 mahazar from RTO check post, Pollachi. 33. The learned Public Prosecutor argued that apart from the above, the evidence of PW50 and Exhibit P44 report from the Finger Print Bureau would show that one of the chance prints is identical with the specimen right middle fingerprint impression of the first accused. 34. PW5 deposed that he was working in a company at Kothamangalam and the second accused was also working there as Supervisor. 34. PW5 deposed that he was working in a company at Kothamangalam and the second accused was also working there as Supervisor. According to PW5, the second accused enquired as to whether persons are available in Tamil Nadu for dismantling an old lorry and accordingly, PW5 contacted his brother in Tamil Nadu and informed the second accused that it is difficult to arrange persons for dismantling one lorry and if more old vehicles are there, it is possible to arrange persons from Tamil Nadu. PW5 has also given the phone number of his brother to the second accused and also informed his brother in Tamil Nadu to help the second accused. PW5 deposed that subsequently, his brother informed him that the person introduced by him has brought a Tata car and not a lorry and therefore, he became suspicious and not rendered any help. 35. PW6 is the brother of PW5 and he deposed that after two days of receiving the call from his brother, Arun contacted him through phone at about 5 a.m. and thereafter, he met Arun near an under bridge at Pollachi and when he asked about the lorry, Arun told him that the vehicle is a Tata Indica Car and not a lorry. According to PW6, he told Arun that it is a new car and then Arun enquired him about the opening time of the workshop and when the witness informed Arun that the workshop will be opened only at 10 a.m., Arun told him that there is no time and hence, they are returning. PW6 identified the second accused as the person who approached him at Pollachi with the car and he would say that two other persons were also with the second accused at that time. 36. In cross examination, PW6 admitted that the second accused was not previously known to him; but, he admitted that the second accused was shown to him while the accused was in Muvattupuzha jail. He also admitted that the second accused met him at about 5 a.m. and there was no sufficient light as it was early morning. As per the prosecution case, PW6 met the second accused at about 5 a.m. on 23.09.2008 and PW6 was examined before the court only on 05.01.2016. 37. In this case, the Investigating Officer has not taken any steps for conducting a test identification parade. As per the prosecution case, PW6 met the second accused at about 5 a.m. on 23.09.2008 and PW6 was examined before the court only on 05.01.2016. 37. In this case, the Investigating Officer has not taken any steps for conducting a test identification parade. But, the evidence of PW6 in cross examination shows that he was taken to the Sub Jail at Muvattupuzha and the second accused was shown to him. PW6 has also admitted in cross examination that there was no sufficient light, when he met Arun as it was early morning and therefore, we find that the identification of the second accused by PW6 in the court is not free from reasonable doubt. 38. PW14 was a Motor Vehicle Inspector working at Govindapuram check post in Palakkad District and according to PW14, at about 4 a.m., on 23.09.2008, two persons who came in a white Tata Indica car with registration number starting with KL-17/A requested for issuance of permit for traveling to Tamil Nadu and since the original documents of the vehicle was not available with them, he has not issued permit; but, he informed them that they can obtain permit from Tamil Nadu check post. PW14 identified accused Nos. 2 and 3 as the persons who approached him for the permit. PW15 was also working at Govindapuram check post on 23.09.2008 and he also identified the second and third accused before the court as the persons who reached the check post at about 4 a.m. on 23.09.2008 with a white Tata Indica car and requested for permit for travelling to Tamil Nadu. 39. In cross examination, PW14 admitted that accused nos. 2 and 3 were not previously known to him and that about 100 vehicles will pass through the check post in a day. According to PW14, they used to record the registration number of the vehicles coming from Tamil Nadu and proceeding to Kerala and the evidence of PW14 shows that they will not record the registration number of the vehicles passing to Tamil Nadu from Kerala. In cross examination, PW14 admitted that the accused persons were shown to him in the office of the Circle Inspector Muvattupuzha. PW15 also admitted in cross examination that the accused persons were shown to him by the police while they were in the Police Station. In cross examination, PW14 admitted that the accused persons were shown to him in the office of the Circle Inspector Muvattupuzha. PW15 also admitted in cross examination that the accused persons were shown to him by the police while they were in the Police Station. PWs 14 and 15 were examined before the court only on 06.01.2016 and their evidence clearly shows that it was at 4 a.m. on 23.09.2008, they saw accused Nos. 2 and 3. 40. The prosecution has no case that any test identification parade was conducted.. The evidence of PWs 14 and 15 would show that instead of holding a test identification parade, they were called to the Police Station and the accused persons were shown to them. Therefore, we find merit in the argument of the learned counsel for the appellants that the identification of accused Nos. 2 and 3 before the court by PWs 14 and 15 after about 8 years of the occurrence is not free from reasonable doubt. 41. It is true that the failure to conduct a test identification parade is not always fatal. But in this case, admittedly, the accused were not previously known to PWs 6, 14 and 15 and their evidence in cross examination shows that the police has shown the accused persons to them and further, it is also in evidence that PWs 14 and 15 met the persons who reached there in the check post at 4 a.m. on 23.09.2008 and PW6 met the person who approached him with the car at 5 a.m., on 23.09.2008 and therefore, we find that the identification of the accused persons by PWs 6, 14 and 15 after about 8 years of the occurrence is not free from reasonable doubt, especially in view of the fact that it is in evidence that the police has shown the accused persons to the witness in the Sub Jail and in the Police Station with a view to see that they identify the accused persons in the court. 42. In Mohd. Rijwan v. State of Haryana [2023 KHC 7153], the Honourable Supreme Court held thus: “In the present case, there is a disturbing feature. Instead of holding a test identification parade, PW - 6 was called to the office of the Superintendent of Police, and the appellant was shown to him in the office. 42. In Mohd. Rijwan v. State of Haryana [2023 KHC 7153], the Honourable Supreme Court held thus: “In the present case, there is a disturbing feature. Instead of holding a test identification parade, PW - 6 was called to the office of the Superintendent of Police, and the appellant was shown to him in the office. Thus, the identification of the appellant by PW - 6 in the court is not free from reasonable doubt. It becomes very doubtful as the accused was shown to the witness in the office of the Superintendent of Police, only with a view to see that he identifies the accused in the court. This procedure is not known to law.” 43. PW53 deposed that on the basis of the disclosure statement of the third accused that he kept the petro card in his house and that he will take out the same, if he is taken to that place, he reached the house of the third accused and from a steel cupboard inside the bedroom, the accused took out MO2, petrocard, and the same was seized as per Exhibit P23 mahazar. The relevant portion of the confession statement of the accused is marked as Exhibit P23(a). PW53 also deposed that on the basis of the disclosure statement of the second accused that he took a temporary permit from the RTO check post while taking the car to Pollachi and if he is taken to that place, he will point out the check post, the witness reached the RTO check post at Valayanthamaram in Tamil Nadu as led by the accused and from there, he recovered Exhibit P5, copy of the temporary permit, and Exhibit P6, copy of the vehicle movement register, 44. The learned counsel for the appellants argued that Exhibits P5 and P6 are the copies of official records maintained in the check post and therefore, it cannot be held that any fact is discovered to connect the accused with the crime as contemplated under Section 27 of the Indian Evidence Act, 1872. 45. The learned counsel for the appellants argued that Exhibits P5 and P6 are the copies of official records maintained in the check post and therefore, it cannot be held that any fact is discovered to connect the accused with the crime as contemplated under Section 27 of the Indian Evidence Act, 1872. 45. The learned counsel for the appellants also pointed out that there is no satisfactory evidence to connect MO2, petro card, with the subject vehicle and that PW53 admitted in cross examination that he could not produce any document to show that MO2, petrocard, was used for filling petrol in the subject vehicle and that he has not conducted any investigation in this direction. PW53 also admitted in cross examination that in the First Information Statement or in the statement recorded on 24.09.2008, nothing is stated by PW1 to show that a petrocard was there in the car. 46. PW31 is a taxi driver from Kerala, who accompanied the Investigating Officer to Tamil Nadu and witnessed the recovery of Exhibits P5 and P6 from Valayanthamaram check post as per Exhibit P22 mahazar. PW32 turned hostile to the prosecution and deposed that he has not witnessed the recovery of MO2 petrocard from the house of A3. 47. The learned counsel for the appellants cited the decision of the Honourable Supreme Court in Subramanya v. State of Karnataka [2022 KHC 7088] and argued that mere discovery cannot be interpreted as sufficient to infer authorship of concealment in the absence of exact words, attributed to an accused person, as the statement made by him being deposed by the Investigating Officer in his evidence. In Subramanya cited supra, the Honourable Supreme Court held in paragraph 78 as follows: “78. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch - witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of S.27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch - witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under S.27 of the Evidence Act. ...” 48. The evidence of PW50, Finger Print Test Inspector, shows that he collected 12 chance prints from the Indica car and when it is found that the chance print marked as M5 is identical with the specimen right middle finger print of the first accused, he forwarded a report to the Investigating Officer on 23.10.2008 and the same is marked as Exhibit P43. According to PW50, subsequently, on 28.10.2008, he also forwarded the detailed expert opinion to the Investigating Officer and the same is marked Exhibit P44. 49. According to PW50, subsequently, on 28.10.2008, he also forwarded the detailed expert opinion to the Investigating Officer and the same is marked Exhibit P44. 49. In cross examination, PW50 admitted that it is not stated in Exhibits P43 or P44 that the chance print corresponding to the right middle fingerprint of the first accused was obtained from inside the car and that M5 is the enlarged photograph of chance print- M23. PW50 admitted in cross examination that the chance prints collected from the scene of occurrence are of the category latent or hidden prints and not of the category visible or patent prints. According to PW50, he was not able to establish the identity of 3 chance prints obtained from the scene of occurrence and the witness would say that the car was abandoned in a public place and therefore, the possibility of others touching on the outer side of the car cannot be ruled out. But, the witness admitted that it is not stated in Exhibits P43 or P44 that the chance print said to be that of the first accused, is collected from the inside portion of the car. 50. In re-examination, PW50 stated that Exhibit P50 is the enlarged certified copy of the chance print- M5, developed from the scene of crime and that Exhibit P51 is the enlarged certified copy of the specimen right middle finger of the first accused marked as ‘S’. According to PW50, M23 in Exhibit P48 series is the chance print marked as M5. In further cross examination, PW50 admitted that M5 is an enlarged photograph and that it is not stated in M5, Exhibits P43 or P44 that M5 is the enlarged photograph of M23 shown in Exhibit P48 series. In cross examination, PW50 deposed as follows: 51. PW51 is the police photographer who took photographs of the chance prints–M13 to M27 in Exhibit P48 series. The photographs, M28 to M30 in Exhibit P49 series, are relating to the inside portion of the car. The evidence of PW51 in cross examination shows that Exhibits P45 to P49 reached the court only on 16.01.2016. 52. PW51 is the police photographer who took photographs of the chance prints–M13 to M27 in Exhibit P48 series. The photographs, M28 to M30 in Exhibit P49 series, are relating to the inside portion of the car. The evidence of PW51 in cross examination shows that Exhibits P45 to P49 reached the court only on 16.01.2016. 52. The learned counsel for the appellants pointed out that the prosecution has recalled PW50 and conducted further chief examination on 22.02.2016 and marked the specimen fingerprint of the first accused as Exhibit P71 and that the evidence of PW50 in this regard would show that he obtained the said document from Single Digit Finger Print Bureau, Aluva subsequent to 01.02.2016, the date on which he was originally examined before the court. When PW50 was cross examined further, he admitted that he received the said document on 19.02.2016 and that he retired from service during 2013. In this connection, it is pertinent to note that while examining PW53, one set of the specimen fingerprint impressions of accused Nos. 1 to 3 is marked as Exhibit P60. PW53 deposed that at the time of the arrest of accused Nos. 1 to 3, 5 sets of specimen fingerprints are taken and out of that, one set was sent to the Finger Print Bureau, Ernakulam and two sets were sent to the Finger Print Bureau, Thiruvananthapuram and the remaining two sets are kept in the CD file and out of that, one set is produced before the court on 10.02.2016. 53. In Biju Kumar v. State of Kerala [ 2022 (1) KHC 463 ], it was held thus: “Even if the sample fingerprint taken by the I.O was legally permissible, again the sample should have been transmitted to the Court with a property list and the chance print as also the sample print ought to have been sent to the Fingerprint Bureau through Court, with a forwarding note. This procedure was not followed in the case of the chance print also. PW15 has taken the chance print developed from the lock and the photograph taken of the same and on receipt of sample print, has compared it and sent a report to the Circle Inspector of Police, Neyyattinkara as per Ext.P15 dated 19/04/2005. This procedure was not followed in the case of the chance print also. PW15 has taken the chance print developed from the lock and the photograph taken of the same and on receipt of sample print, has compared it and sent a report to the Circle Inspector of Police, Neyyattinkara as per Ext.P15 dated 19/04/2005. The report merely states that on comparison the chance print developed from the scene of crime is identical, to the left ring finger impression of the accused. The developed chance print, the sample print and the photographs should have been produced before Court. Further the specific similarities which persuades the expert to form an opinion, has to be detailed, for the Court to compare the prints and come to a conclusion. The procedure followed is grossly inadequate to inspire confidence of the Court and the report is inadmissible in evidence. The Court below erred egregiously in having relied on the evidence of fingerprint as an incriminating circumstance.” 54. In this case, Exhibit P60 specimen fingerprints of the accused persons taken by the Investigating Officer was produced before the court only on 10.02.2016 i.e., after the examination of PWs 50 and 51 on 01.02.2016. As already stated, PW50 has admitted before the court that it is not stated in Exhibits P43 or P44 that the chance print corresponding to that of the first accused was obtained from inside the car. On a careful re-appreciation of the evidence of PWs 50, 51 and 53 and Exhibits P43, P44, and P60, we find that the procedure followed for the comparison of the chance prints with that of the specimen impressions collected is grossly inadequate to inspire confidence of the court and therefore, it is not possible to draw any inference to connect the accused persons with the crime on the basis of Exhibit P44 report. 55. PW52 was the professor of Forensic Medicine, who conducted the postmortem examination on the body of the deceased on 25.09.2008 at Medical College Hospital, Alappuzha. The postmortem certificate is marked as Exhibit P52. The opinion of PW52 as to the cause of death is that the postmortem appearances are consistent with death due to drowning. Exhibit P52 further shows that superficial injuries, if any, could not be detected due to decomposition changes and no injury was noted to deeper tissues and bones. The postmortem certificate is marked as Exhibit P52. The opinion of PW52 as to the cause of death is that the postmortem appearances are consistent with death due to drowning. Exhibit P52 further shows that superficial injuries, if any, could not be detected due to decomposition changes and no injury was noted to deeper tissues and bones. In cross examination, when it is suggested to PW52 that in her statement to the Investigating Officer, she has not completely ruled out the possibility of suicide, the witness answered that in order to tie between hands and legs, it requires the effort of another person. 56. When it is brought to the notice of the witness that as per the report, when she saw the body, the hands and feet were tied together and free ends were found tied around both hands with right hand placed above the left hand and if so, is it possible for one person to tie himself in this position and could he move, the witness answered that the possibility is remote. 57. In a case of circumstantial evidence, inference can be drawn only from facts cogently and firmly established and the proved circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and on a careful reappreciation of the entire evidence, we find that the prosecution has not succeeded in fully establishing the circumstances pointing towards the guilt of the accused persons and therefore, we find that the accused persons are entitled for the benefit of reasonable doubt and that the impugned judgment in S.C. No. 560 of 2012 of the Additional Sessions Judge-VII, Ernakulam, is liable to be set aside. 58. In the result, these appeals are allowed and the conviction and the sentence passed by the trial court against the accused persons for the offences punishable Sections 302 and 394 r/w Section 34 of IPC as per the impugned judgment is set aside and the accused persons are acquitted under Section 235(1) Cr.P.C. They shall be set at liberty forthwith, if not required in any other cases.