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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1774  of 2010

R. Shaji                                                               …Appellant

Versus

State of Kerala                …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated 10.12.2009 delivered by the Kerala High Court at Ernakulam in  

Criminal Appeal No. 86 of 2006, by way of which it has affirmed the  

judgment and order of the Sessions Court, Kottayam dated 3.1.2006,  

passed in Sessions Case No. 145 of 2005.

2. Facts and circumstances giving rise to this appeal are:

A. As per the case of the prosecution, the appellant at the relevant  

time  had  been  working  as  the  Deputy  Superintendent  of  Police  at

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Malappuram, and his wife was living at Palluruthy, and was using a  

vehicle which was driven by Praveen (deceased). He was also related  

to  the  appellant.  Praveen  developed  an  illicit  relationship  with  the  

appellant’s wife, and the appellant was informed of this development  

by  his  Manager,  Aji.  The  appellant  reached  Palluruthy,  and  made  

enquiries  about  the  situation  from  Praveen  and  others,  and  his  

relatives tried to resolve the aforesaid matter.  In the presence of other  

relatives, the matter was then amicably settled.  Praveen (deceased),  

was  asked  not  to  come  to  appellant’s  house  thereafter,  and  thus  

Praveen left and began working in a shop at Ettumanoor, as a driver.   

B. During this period, on 25/26.11.2004, Vijayamma, relative of  

Praveen  (deceased),  and  N.  Sahadevan  PW.2’s  father,    informed  

Pavithran (PW.1), father of Praveen, that Praveen was in danger as  

Vijayamma had found out about the illicit relationship that Praveen  

had developed with the appellant’s wife.  

C. N.  Sahadevan,  PW.2’s  father  informed  Pavithran  (PW.1),  

Praveen’s father who resided at Trivendrum, via the telephone of this  

danger to Praveen’s life.  Pavithran (PW.1) immediately informed his  

brother and requested him to help Praveen, as he may not be spared by  

the appellant. N. Sahadevan, PW.2’s father, went and brought Praveen  

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to his own house, whilst informing everybody, that his mother was  

seriously  ill.  The  appellant  asked N.  Sahadevan,  PW.2’s  father,  in  

conversation over the telephone about Praveen, and directed him to  

bring Praveen back. PW.2’s father then took Praveen back. When the  

meeting took place in the presence of various relatives, the appellant  

(A-1), attempted to assault Praveen, but they were separated by other  

persons. Praveen pleaded his innocence, and told the appellant that Aji  

had played this dirty game for some personal gain. However, when  

Aji  was  called  to  participate  in  the  said  meeting,  he  stood  by his  

version  of  events  and  stated  that  he  had  seen  Praveen  and  the  

appellant’s  wife  in  a  compromising  position.   The  appellant  told  

Praveen to leave the said place and to not enter the city.  

D. Praveen  was  brought  by  Jilesh  M.S.  (PW.2),  and  taken  to  

Trivendrum for treatment. Praveen told his father after a period of 2/3  

days that it was not safe for him to stay in hospital as 2/3 gundas had  

been roaming around in the hospital. Thus, he went back to the city  

and sought employment.  

E. On  15.2.2005,  Divakaran  (PW.7),  neighbour  of  Vinu  (A-2),  

while coming out of a bus stop, saw Vinu (A-2) coming on a motor  

bike while Praveen was standing in the market.  Vinu (A-2), stopped  

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the bike and took Praveen towards Kottayam. They then went to a bar,  

had drinks as were served to them by Saiju (PW.9), and came out of  

the bar  at 8.30 p.m.,  after which they ate at a ‘thattukada’ (a small  

petty shop),  where they were served by  Jose (PW.8), an employee of  

the ‘thattukada’. Mohammed Sherif @ Monai (PW.13), who was the  

owner of the ‘thattukada’, saw the appellant (A-1), coming in a Maruti  

car.  In the said car,  there were also some other persons.  They had  

coffee,  as  was  served  to  them  by  Jose  (PW.8),  and  seen  by  

Mohammed Sherif @ Monai (PW.13).  The appellant (A-1) went back  

to the car and started driving. Other persons also joined him, and Vinu  

(A-2), along with Praveen, left on a Motor Cycle. Vinu (A-2)  lifted  

his  hand and  proceeded further.   The Maruti  Van followed them.  

They all left the city at about midnight, and drove into the jungle.   

F. Shanavas (PW.12), an auto-rickshaw driver carrying patients to  

the Medical College, Kottayam found one motor cycle parked on the  

side of the road. As he had slowed down seeing the vehicles on the  

road, he also saw two persons coming out of the van. The pillion rider  

of the motor cycle sat in the van and after he got into the van, the van  

left  immediately.  The  motor  bike  also  started.  He  noted  the  

registration number of the van, and also that of  the motor bike.  

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G. Mohanan (PW.10), another auto rickshaw driver saw the Maruti  

Van  parked  on  the  road  and  a  person  standing  near  it.  Mohanan  

(PW.10),  stopped  his  auto  and  asked  him  what  had  happened,  

however  he  only  replied  that  a  person  had  gone  nearby.  Thus,  

Mohanan (PW.10) left the place.  

H. On 16.2.2005, a pair of human legs was found floating in the  

backwaters  of  the  Vembanad  lake  (hereinafter  referred  to  as  the  

‘lake’) at Kottayam, by a person who thereafter lodged a complaint to  

Subhah K. (PW.68), Sub-Inspector of the Kottayam West Police, on  

the basis of which, an FIR was registered.  

I. On 18.2.2005, Pavithran (PW.1) lodged an FIR in the Police  

Station alleging that his son Praveen had gone missing, and that after  

he became aware of the same, he had spent the last 3/4 days searching  

for him, but had been still unable to trace him.   

J. On 19.2.2005, a torso in a plastic bag, was seen floating on the  

eastern side of the lake. Upon obtaining requisite information, K.M.  

Antony (PW.17), Circle Inspector of Vaikom, reached the scene and  

Pavithran (PW.1) also identified the torso, to be that of his son.  While  

the inquest of the torso was being conducted, a pair of hands was seen  

floating in the lake. K.M. Antony (PW.17) recovered the same and  

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conducted inquest. Pavithran (PW.1) identified the hands to be those  

of Praveen as well.    

K. After the completion of the preliminary enquiry, the appellant  

and  Vinu  (A-2),  were  arrested  on  24.2.2005.  The  house  of   the  

appellant (A-1) was searched by K.M. Anto (PW.74), Circle Inspector  

of Police, Kottayam West  and there was recovery of M.Os. 13 to 18,  

under Exts. P.17 and 18 Mahazars.  B. Muralidharan Nair (PW.77),  

Dy.S.P.,  Kottayam,   received  information  that  a  human  head  in  a  

plastic cover, had been spotted on the shores of the back waters of the  

lake.  The  head  was  then  recovered  and  inquest  prepared.   B.  

Muralidharan  Nair  (PW.77)  obtained  custody  of  the  accused  from  

court.  The chopper (M.O.4),  alleged to have been used in the said  

crime was recovered at the instance of the appellant.  A Maruti Van  

(M.O.5) was also recovered after information was furnished by the  

appellant (A-1), to the effect that the said Maruti Van had also been  

used.  

L. After having completed the investigation, a charge sheet was  

filed against five persons, including the appellant. The trial however,  

could be conducted only against two persons, i.e. the appellant (A-1)  

and Vinu (A-2), as all the others were absconding.  Subsequent to the  

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trial  of  this  case,  A-3 and A-4 were also apprehended,  put  to trial  

separately, and convicted under Section 302 of the Indian Penal Code,  

1860 (hereinafter referred to as the ‘IPC’).  A-5 is still absconding.  

M. So far as  the present  case is concerned,   the appellant  (A-1)  

was convicted under Section 302 read with Section 120-B of the IPC,  

and was awarded a sentence of life imprisonment and a fine of Rs. one  

lakh, in default of which, he would undergo SI for a period of one  

year. Vinu (A-2) was sentenced to undergo imprisonment for life and  

to  pay  a  fine  of  Rs.5,000/-  only,  in  default  of  which,  he  would  

undergo SI for 3 months. Both the accused were also convicted under  

Section  201  read  with  Section  120-B  IPC,  and  sentenced  to  

imprisonment for a period of 3 years, and a fine of Rs.2,000/- each, in  

default of which, they would undergo SI for a period of  3 months  

each.  They  were  further  convicted  under  Section  364  read  with  

Section 120-B IPC, and sentenced to undergo RI for a period of 7  

years each, and to pay a fine of Rs.5,000/- each, in default of which,  

they would undergo SI for a period of  one year.  All  the sentences  

were directed to run concurrently.  

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N. Aggrieved, both of them preferred Criminal Appeal No. 86 of  

2006,  which was  dismissed  by the  High Court  vide  judgment  and  

order dated 10.12.2009.

Hence, this appeal.  

3. Shri  S.  Gopakumaran Nair,  learned senior  counsel  appearing  

for  the  appellant,  has  submitted  that  there  was  no  motive  for  the  

appellant  to  cause  death  of  Praveen.  It  is  a  case  of  circumstantial  

evidence as there is no eye-witness to the actual incident of killing.  

The  chain  of  circumstances  is  not  complete.  Haridas  (PW.14),  an  

auto-rickshaw driver  had  seen  the  appellant  and  others  only  for  a  

fleeting moment.  Though the appellant and Vinu (A-2) were arrested,  

no  Test  Identification  Parade  was  conducted.  The  statements  of  

witnesses were recorded under Section 164 of the Code of Criminal  

Procedure,  1973  (hereinafter  referred  to  as  the  ‘Cr.P.C.’)  by  a  

Magistrate  who  did  not  even  mention  the  date  of  recording  such  

statements, such statements were not exhibited before the court for the  

purpose of  corroboration and confrontation.  Jose  (PW.8),  Shanavas  

(PW.12),  and  Mohamamed  Sherif  @  Monai  (PW.13),  identified  

Praveen  (deceased),  by  seeing  only  his  passport  sized  photograph.  

This is not enough as Shanavas (PW.12), had seen the appellant and  

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others  including  Praveen  (deceased),  only  for  a  brief  moment  and  

thus, was unable to identify them in court after the lapse of a period of  

several months, during the course of the trial. Different parts of the  

body were found, and the identification of the dead body, merely on  

the basis of  a mole on the leg of the body cannot be held to be proper  

identification by the father, as the dead body was recovered after a  

lapse  of  3/4  days.  Different  parts  of  the  body  were  recovered  on  

different dates and by such time the skin would have dis-integrated  

entirely.  Neither  Vijayamma nor  Radhamma were  examined.   Aji,  

who had disclosed information pertaining to the illicit relationship of  

Praveen with the appellant’s wife, was also not examined.  A DNA  

test was conducted on the dead body to determine whether the same  

was in fact, the body of Praveen (deceased).  However, the FSL report  

disclosed  that  in  respect  of  the  chopper  used  for  the  purpose  of  

dismembering  the  parts  of  the  body,  no  blood  group  could  be  

detected.   The  whole  case  of  the  prosecution  hence,  becomes  

unbelievable, and the conviction of the appellant is liable, to be set  

aside.  

4. Per contra, Mr. Basant R. learned senior counsel appearing for  

the  State  has  opposed  the  appeal,  contending  that  the  various  

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circumstances that stood proved, pointed only towards the guilt of the  

appellant, and that in the light of the facts and circumstances of the  

case,  no  one  apart  from  the  appellant  could  have  committed  the  

murder  of  Praveen  (deceased).  The  DNA test  established  that  the  

different parts of the body that were recovered from the lake were in  

fact,  those  of  Praveen.   There  was  no  reason  for  the  prosecution  

witnesses,  particularly,  Jose  (PW.8),  Mohanan  (PW.10),  Shanavas  

(PW.12)  and   Mohamamed  Sherif  @  Monai  (PW.13),  to  depose  

against the appellant and both the courts below also have found their  

evidence to be trustworthy.  Jose (PW.8) and Mohamamed Sherif @  

Monai  (PW.13)  knew  the  appellant,  as  well  as  Vinu  (A-2)  and  

Praveen (deceased). Therefore, holding a TI Parade would have been  

a mere formality. Though, Mohanan (PW.10) and Shanavas (PW.12),  

the  auto  rickshaw  drivers,  were  chance  witnesses,  their  presence  

cannot be doubted as it is an ordinary circumstance that patients are  

taken to  the  hospital  even in  the  late  hours  of  night,  and the  said  

incident had occurred on the road that led to the hospital.  There was  

sufficient light on the road, and the High Court recorded a finding to  

the effect that Shanavas (PW.12), an auto rickshaw driver, even if he  

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had been unable to see Praveen, was still able to identify the appellant  

and others.  

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

6. The  courts  below  have  appreciated  the  entire  evidence  on  

record,  including the  evidence  of  the  defence.   The appellant  also  

examined Ajeesh M. Muraleedharan (DW.1), who was a Sub-Editor,  

Malayala  Manorama and thereafter,  the High Court  concurred with  

the findings of fact recorded by the Sessions Court on various issues.  

There is no dispute that Praveen (deceased), was a victim of homicide,  

and that the dismembered parts of the body recovered from the lake  

were those of Praveen, as the same stood proved by the DNA report.  

The High Court concurring with the opinion of the Sessions Court,  

held as under:  

“The DNA analysis made it clear that the blood  samples of the parents of Praveen matched with  the  DNA of  Praveen,  deceased  and  the  same  proved and established the identity of the dead  body as the DNA had also been extracted from  the portion of the limbs recovered from the lake  and compared with that of DNA  of parents.”

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7. The recovery of other articles also stood proved as the High  

Court yet again concurring with the finding recorded by the Sessions  

Court in this regard, held as under:

“The  recovery  has  been  made  by  the  Investigating  agency  on  the  statement  voluntarily made by the appellant in respect of  various materials and the High Court took note  of the fact that the appellant was the seasoned  police officer and unless and until some of the  links were identified and located, nobody could  doubt his involvement.  The recovery witnesses  have proved the recoveries.  B. Muraleedharan  Nair (PW.77), stated that the seizure was at the  behest  of  the appellant  and the vehicle  infact  recovered  belonged  to  the  brother-in-law  of  Babu (PW.6) and  as the owner of the vehicle  did not have enough space to park the vehicle  in his house, the van was being parked in the  compound of Babu (PW.6). The said PW.6 was  familiar to the appellant who has deposed that  the appellant had come to him on 15.2.2005 and  told the said witness that the appellant’s vehicle  had developed some trouble and that is why he  wanted to use the vehicle parked in the house of  the  said  witness.  The  van  was  taken  by  the  appellant  as  allowed  by  Babu  (PW.6)  after  taking the consent of the owner and the witness  further disclosed that the van was brought back  by  the  appellant  after  few  days.   B.  Muraleedharan Nair (PW.77) has stated that the  vehicle was identified by the appellant himself  telling  that  this  was  the  van  which  had been  used for committing the crime.”

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8. Undoubtedly,  the  van  was  returned  on  16.2.2005  and  was  

recovered on 24.2.2005, and hence, it might have been used in the  

interim period, but this does not affect the evidence on record.  Some  

police officers collected samples of blood stains from the floor of the  

said vehicle and also some hair. The hair and blood stains recovered  

during the investigation, were compared with the hair collected by the  

Scientific Officer from the deceased, which established that the said  

hair did in fact, belong to Praveen (deceased), and thus, the use of the  

said vehicle in the crime stood proved. The recovery of the van was in  

accordance with the provisions of Section 27 of the Indian Evidence  

Act, 1872 (hereinafter referred to as the ‘Evidence Act’), and as the  

same was done at the behest of the appellant, his conduct was relevant  

under Section 8 of the Evidence Act.  

9. The recovery of the chopper (M.O.4) stood proved as the said  

chopper  was  crafted  by  Vijayakumar  (PW.5),  who  deposed  that  

appellant was familiar with him and that the appellant had given him a  

leaf  plate  for  the purpose  of  making a  chopper,  as  also,  a  kitchen  

knife. He prepared both, the chopper and the knife in accordance with  

instructions, and handed them over to the appellant in early January,  

2005. Vijayakumar (PW.5) identified the chopper.

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10. As per the deposition of B. Muraleedharan Nair (PW.77), the  

appellant  made  a  disclosure  statement  to  the  effect  that  Praveen’s  

body was mutilated using the chopper (M.O.4). The said chopper was  

recovered from the  southern  side  of  the lake on the  basis  of  such  

disclosure  statement  made  by  the  appellant.   The  appellant  had  

exclusive  knowledge as  regards  the  place  of  concealment,  and the  

evidence on record makes it clear that when he was in fact, taken to  

such place, the appellant himself got into the water and retrieved the  

chopper from there.  No one else knew that the weapon was hidden in  

such a place, and the location was not one that was frequented by the  

public at large. Therefore, recovery of the said chopper at the behest  

of the appellant  cannot be doubted.  

11. The  chopper  (M.O.4)  was  recovered  by  M.K.  Ajithkumar,  

Scientific  Assistant,  who deposed that  at  the time of  recovery,  the  

chopper had blood stains and hair stuck on it. Dr. P. Babu (PW.71), a  

Forensic Surgeon deposed that the dismemberment of the body of the  

deceased could certainly have been possible with the said chopper. So  

far as the recovery of the skull of Praveen (deceased) is concerned, the  

same was also made on the basis of the disclosure statement of the  

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appellant. The investigating team was taken to the relevant place by  

the appellant, and it was on the basis of his disclosure statement that  

the skull  was found.  This  happened after  digging in a few places  

around the land of Ananda Kini. A glove and a plastic rope were also  

recovered  at  his  behest,  and  in  light  of  the  aforementioned  

circumstances, it cannot be doubted that the said recoveries suffered  

from any illegality.  

Some minor issues with respect to the above, were raised before  

the Sessions Court, as well as before the High Court, and the same  

have rightly been explained by the courts below. Thus, they do not  

require any further discussion.  

12. Learned  senior  counsel  for  the  appellant  has  urged  that  

statements  of  certain  witnesses  were  recorded  under  Section  164  

Cr.P.C. before Magistrates, namely,  Kalampasha (PW.61) and Dinesh  

M. Pillai (PW.62).  The said statements were not put on record before  

the trial court, and the same were not marked. Thus, the trial stood  

vitiated as the accused has been denied an opportunity to contradict  

the  aforementioned  statements  of  the  witnesses,  which  were  made  

under oath before the magistrates, which though are not in the nature  

of   substantive  evidence,  could  well  be  used  for  the  purpose  of  

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corroboration and contradiction.  Denial of such opportunity is against  

the requisites of a fair trial.

13. Clause  (iv)  of  Section  207 Cr.P.C.  clearly  provides  that  any  

statement recorded under Section 164 Cr.P.C., shall be made available  

to the accused alongwith all the other documents that have been filed  

alongwith the charge sheet.  The appellant herein, has neither urged  

that the statements recorded under Section 164 Cr.P.C. were not a part  

of such documents, before the trial court, nor was any issue raised by  

him  at  the  time  of  cross-examination  of  B.  Muralidharan  Nair  

(PW.77), the investigating officer.   The same is a question of fact.  

However,  it  appears  from  the  documents  on  record  that  such  

documents, if the same were in fact, a part of the record, were not  

marked.  The appellant raised this issue for the first time before the  

High Court, and the High Court dealt with the same observing:  

“A reading of the judgment of the court below  show that  both sides  referred  to  the same in   detail and the court below has also referred to   the same in its judgment. It is well settled that   the statement under Section 164 Cr.P.C. can be   used both for corroboration and contradiction   of the author of the statement and thus, did not   find  this  ground  worth  acceptance.  Even   otherwise,  it  appears  that  statement  recorded   under  Section  164 Cr.P.C.  by  the Magistrate   was not in detail. No question had been put to   

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the  witnesses  whose  statements  had  been   recorded  nor  an  attempt  had  been  made  to   extract  answers  from them and the  witnesses   were  asked  by  the  learned  magistrates  what   they wanted to say and they had no clue as to   what they had to speak. Therefore, they simply   spoke what came to their mind at that point of   time whether it was relevant or irrelevant.  The   witnesses  could  not  be  deemed  to  carry  so   much of wisdom to enable them to know what   are the essential facts they need to state before   the  learned  magistrate.  The  witnesses  whose   statements were recorded before the magistrate   were simply asked “have you finished, you can   go”.  

14. Evidence given in a court under oath has great sanctity, which  

is  why  the  same  is  called  substantive  evidence.  Statements  under  

Section 161 Cr.P.C. can be used only for the purpose of contradiction  

and  statements  under  Section  164  Cr.P.C.  can  be  used  for  both  

corroboration and contradiction.  In a case where the magistrate has to  

perform the duty of recording a statement under Section 164 Cr.P.C.,  

he is under an obligation to elicit all information which the witness  

wishes  to  disclose,  as  a  witness  who  may  be  an  illiterate,  rustic  

villager  may  not  be  aware  of  the  purpose  for  which  he  has  been  

brought, and what he must disclose in his statements under Section  

164 Cr.P.C.  Hence, the magistrate should ask the witness explanatory  

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questions and obtain all possible information in relation to the said  

case.  

15. So far as the statement of witnesses recorded under Section 164  

is concerned, the object  is  two fold;  in the first  place,  to deter the  

witness  from  changing  his  stand  by  denying  the  contents  of  his  

previously recorded statement, and secondly, to tide over immunity  

from prosecution by the witness under Section 164.  A proposition to  

the effect that if a statement of a witness is recorded under Section  

164, his evidence in Court should be discarded, is not at all warranted.  

(Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999  

SC 2565; and  Assistant Collector of Central Excise, Rajamundry  

v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901).  

 16. Section 157 of the Evidence Act makes it clear that a statement  

recorded  under  Section  164  Cr.P.C.,  can  be  relied  upon  for  the  

purpose  of  corroborating  statements  made  by  witnesses  in  the  

Committal Court or even to contradict the same. As the defence had  

no opportunity to cross-examine the witnesses whose statements are  

recorded under Section 164 Cr.P.C., such statements cannot be treated  

as substantive evidence.   

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During the investigation, the Police Officer may sometimes feel  

that it is expedient to record the statement of a witness under Section  

164 Cr.P.C. This usually happens when the witnesses to a crime are  

clearly  connected  to  the  accused,  or  where  the  accused  is  very  

influential, owing to which the witnesses may be influenced.  (Vide:  

Mamand v.  Emperor,  AIR 1946 PC 45;  Bhuboni Sahu v.  King,  

AIR 1949 PC 257; Ram Charan & Ors. v. The State of U.P., AIR  

1968 SC 1270; and Dhanabal & Anr. v. State of Tamil Nadu, AIR  

1980 SC 628).

17. It has been argued by the learned counsel for the appellant, that  

as the blood group of the blood stains found on the chopper could not  

be ascertained, the recovery of the said chopper cannot be relied upon.  

A failure by the serologist  to detect the origin of the blood  

due to dis-integration of the serum, does not mean that the blood  

stuck  on  the  axe  could  not  have  been  human  blood  at  all.  

Sometimes it  is  possible,  either  because  the stain  is  insufficient  in  

itself,  or  due to haematological  changes and plasmatic coagulation,  

that a serologist may fail to detect the origin of the blood in question.  

However,  in  such  a  case,  unless  the  doubt  is  of  a  reasonable  

dimension, which a judicially conscientious mind may entertain with  

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some objectivity,  no benefit  can be claimed by the accused in this  

regard.  

Once  the  recovery  is  made  in  pursuance  of  a  disclosure  

statement  made  by  the  accused,  the  matching  or  non-matching  of  

blood group (s) loses significance.  (Vide :  Prabhu Babaji Navie v.  

State of Bombay, AIR 1956 SC 51; Raghav Prapanna Tripathi v.  

State of U.P., AIR 1963 SC 74;  State of Rajasthan v. Teja Ram,  

AIR 1999 SC 1776;  Gura Singh v. State of Rajasthan, AIR 2001  

SC 330;  John Pandian v. State,  represented by Inspector of Police,  

Tamil Nadu, (2010) 14 SCC 129; and Dr. Sunil Clifford Daniel v.  

State of Punjab, JT 2012 (8) SC 639).

18. In view of the above, the Court finds that it is not possible to  

accept the submission that in the absence of a report regarding the  

origin of the blood, the accused cannot be convicted, for it  is only  

because of the lapse of time, that the blood could not be classified  

successfully.  Therefore,  no  advantage  can  be  conferred  upon  the  

accused to  enable  him to claim any benefit,  and the report  of  dis-

integration of blood etc. cannot be termed as a missing link, on the  

basis  of  which the chain of  circumstances may be presumed to be  

broken.

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19. Motive  is  primarily  known  to  the  accused  himself  and  it  

therefore, it may not be possible for the prosecution to explain what  

actually prompted or excited the accused to commit a particular crime.  

In a case of circumstantial evidence, motive may be considered as a  

circumstance, which is a relevant factor for the purpose of assessing  

evidence, in the event that there is no unambiguous evidence to prove  

the guilt of the accused. Motive loses all its significance in a case of  

direct  evidence  provided  by  eye-witnesses,  where  the  same  is  

available, for the reason that in such a case, the absence or inadequacy  

of  motive,  cannot  stand  in  the  way  of  conviction.  However,  the  

absence  of  motive  in  a  case  depending  entirely  on  circumstantial  

evidence, is a factor that weighs in favour of the accused as it “often  

forms the fulcrum of the prosecution story”.  (Vide: Babu v. State of  

Kerala,  (2010)  9 SCC 189;  Kulvinder Singh & Anr. v.  State of  

Haryana, AIR 2011 SC 1777;  Dandu Jaggaraju v. State of A.P.,  

AIR 2011 SC 3387).  

20. The evidence on record clearly established, that the appellant  

had adequate reason to harbour animosity towards Praveen, as he may  

well have been unable to tolerate the intimacy that the deceased had  

developed with his wife. In light  of the fact that the appellant had  

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absolute faith and trust in the deceased, and had hence allowed him to  

have free access and absolute freedom in his house, the alleged act of  

betrayal of trust was committed by the deceased, which the appellant  

no doubt found gravely humiliating and agonizing.  

Jilesh M.S. (PW.2) deposed,  that when the appellant  became  

aware of the illicit relationship between Praveen and his wife, he had  

said that in the event that he was able to lay his hands on Praveen, he  

would chop him up into pieces.  The said threat was followed by a  

tirade of abuses. Jilesh M.S. (PW.2) consulted Pavithran (PW.1), in  

this  regard.  Both  of  them have  deposed  as  regards  the  manner  in  

which the situation was handled by the relatives of the appellant and  

Praveen.

We  do  not  find  force  in  the  submission  made  by  Shri  S.  

Gopakumaran Nair, learned senior counsel appearing for the appellant  

that the appellant had absolutely no grievance against his wife Smt.  

Shadi,  and  that  even  after  the  alleged  incident,  she  had  been  

accompanying her husband to all social events, as Ajith (PW.3) has  

deposed that the appellant had attended the engagement ceremony of  

Vinu (A-2) along with his wife and son, and that too, only 3 days prior  

to the alleged murder,  thus, it would be most unnatural for him to  

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annihilate  Praveen  (deceased).   It  is  further  urged  that  Praveen  

(deceased) had in fact, misbehaved with the appellant’s wife, and the  

matter  was  settled  upon  the  interference  of  several  relatives,  after  

which Praveen (deceased) was asked to quit his job and was also told  

not  to  enter  in  the  city.   In  the  event  that  the  defence  version  is  

accepted,  and  it  is  believed  that  Praveen  (deceased)  had  in  fact,  

misbehaved with the wife of the appellant, the same could actually  

lead to the inference that the appellant may have had an even stronger  

motive to eliminate Praveen (deceased).

Further, there is no force in the submission advanced on behalf  

of the appellant that Shirdhi (PW.4), the son of the appellant from his  

first wife, did not support the case of the prosecution.  His statement is  

only to the effect that when the meeting took place on 26.11.2004 he  

did  not  attend  the  meeting  and  stayed  upstairs.   Thus,  he  has  not  

deposed  that  the  said  meeting  was  not  held.   Additionally,  his  

statement that Praveen (deceased) had tendered an apology and that  

upon  the  intervention  of  relatives  and  friends,  the  appellant  had  

actually pardoned him, cannot be believed, as the said witness was not  

present at the meeting owing to which he could not have been an eye-

witness to the aforementioned part of the incident.     

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21. Undoubtedly, in this case Aji, the Manager of the appellant who  

had revealed the existence of the alleged relationship between Praveen  

and the appellant’s wife, has not been examined, but we are of the  

considered opinion that non-examination of the said witness will not  

adversely affect the case of the prosecution. The same is the position  

so  far  as  Radhamma,  the  appellant’s  sister,  Bijulal,  nephew of  the  

appellant and Vijayamma, aunt of Jilesh M.S. (PW.2) are concerned,  

who could also have unfolded the factum of the said meeting being  

held in this respect.  

22. In the matter of appreciation of evidence of witnesses, it is not  

the number of witnesses, but the quality of their evidence which is  

important, as there is no requirement in the law of evidence stating  

that a particular number of witnesses must be examined in order to  

prove/disprove a fact. It is a time-honoured principle, that evidence  

must be weighed and not counted. The test is whether the evidence  

has a ring of truth, is cogent, credible and trustworthy, or otherwise.  

The legal  system has laid emphasis on the value provided by each  

witness, as opposed to the multiplicity or plurality of witnesses. It is  

thus, the quality and not quantity, which determines the adequacy of  

evidence, as has been provided by Section 134 of the Evidence Act.  

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Where  the  law  requires  the  examination  of  at  least  one  attesting  

witness, it has been held that the number of witnesses produced over  

and above this, does not carry any weight.  (Vide: Vadivelu Thevar  

v.  State of Madras; AIR 1957 SC 614; Jagdish Prasad v.  State of  

M.P. AIR 1994 SC 1251;  Sunil Kumar v.  State Govt. of NCT of  

Delhi AIR 2004 SC 552;  Namdeo v.  State  of  Maharashtra AIR  

2007 SC (Supp) 100;  Kunju @ Balachandran v.  State of  Tamil  

Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v.  State of West  

Bengal AIR201O SC 3638;  Mahesh & Anr. v.  State of  Madhya  

Pradesh (2011) 9 SCC 626; Kishan Chand v. State of Haryana JT  

2013( 1) SC 222).  

23. It is a settled legal proposition that the conviction of a person  

accused  of  committing  an  offence,  is  generally  based  solely  on  

evidence  that  is  either  oral  or  documentary,  but  in  exceptional  

circumstances,  such  conviction  may  also  be  based  solely  on  

circumstantial  evidence.  For  this  to  happen,  the  prosecution  must  

establish  its  case  beyond  reasonable  doubt,  and  cannot  derive  any  

strength from the weaknesses in the defence put up by the accused.  

However,  a  false  defence  may  be  brought  to  notice,  only  to  lend  

assurance  to the Court  as  regards the various links in the chain of  

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circumstantial  evidence,  which  are  in  themselves  complete.  The  

circumstances on the basis of which the conclusion of guilt is to be  

drawn, must be fully established. The same must be of a conclusive  

nature, and must exclude all possible hypothesis except the one to be  

proved. Facts so established must be consistent with the hypothesis of  

the guilt of the accused, and the chain of evidence must be complete,  

so as not to leave any reasonable ground for a conclusion consistent  

with the innocence of the accused, and must further show, that in all  

probability  the  said  offence  must  have  been  committed  by  the  

accused.  (Vide:  Sharad  Birdhichand  Sarda  v.  State  of  

Maharashtra, AIR 1984 SC 1622; and Paramjeet Singh @ Pamma  

v. State of Uttarakhand, AIR 2011 SC 200).

24. Divakaran (PW.7), deposed that  he knew Praveen (deceased)  

and Vinu (A-2) from childhood, and that on the fateful day Vinu (A-

2)  had  taken  Praveen  on  a  motor  cycle  and  had  driven  towards  

Kottayam.  

Jose (PW.8) was running a ‘thattukada’ (petty shop) during the  

night. He deposed that on 15.2.2005 at 8.30 p.m., Praveen (deceased)  

came with Vinu (A-2) to his shop, and that the two, after their meal,  

left for the theatre, on a motor cycle. At 11.45 p.m., the appellant and  

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three others also came to his shop and had coffee.  The appellant then  

returned to the van after which, the other three persons also got into  

the van.  The appellant got into the driver’s seat of the van. When  

most of the people had left after watching the movie, the witness saw  

Vinu  (A-2)  and  Praveen  on  the  said  motor  cycle,  riding  towards  

Thirunakkara.  Vinu (A-2) came close to the van, lifted his hand and  

then proceeded. Thereafter, the van in which the appellant (A-1) was  

sitting, followed them. During the cross-examination on behalf of the  

appellant (A-1), the witness deposed that at the time when A-2 had  

lifted his hand, there was only a distance of 5 feet between the van  

and motorcycle. This witness further deposed that he had been shown  

only one photograph. He stated that A-1 had come to his shop and had  

remained there for 10-15 minutes.   During this cross-examination on  

behalf of A-2, the said witness also deposed that he had told the police  

and magistrate that A-2 and Praveen had eaten a Bull’s eye, and that  

he had accepted cash from them and had also returned the balance.  

25. Baiju (PW.9), was working as the barman at Hotel Arcadia. He  

deposed that it was in fact, A-2 who had come with another person on  

the  15th  February  2005,  at  about  6.30  p.m.  to  the  Hotel  and  had  

consumed liquor.   He stated that  they had remained in  the bar  till  

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about  8.30  p.m.  and  that  A-2  had  paid  the  bill.  The  witness  had  

noticed  the  presence  of  the  two  because  they  were  both  highly  

intoxicated at the said  time.

26. Mohanan (PW-10),  an auto rickshaw driver,  deposed that  on  

15th February 2005, he had seen an Omni Van along the eastern side  

of the Arpookara temple. That night, he was driving from MCH, to  

Kottayam town via Panambalam road. While returning, he stated that  

he had seen the Omni Van some 200 metres east of the temple, and on  

the southern side of the road at about 12.30 -1 am. The van was green  

in colour with KL7 registration and 5855 number.   Furthermore,  a  

man was also seen by him standing near the door of the driver’s seat.  

Upon asking, the said man only replied that one person had gone up.  

He could not see much as the van was closed but, the vehicle was  

most  certainly a van MO.5. During cross-examination on behalf of  

appellant (A-1), the witness deposed that the person standing near the  

said van, had a North Malabari accent.  

27. Shanavas (PW.12) also an auto driver by profession, identified  

Shaji (A-1) and Vinu (A-2). He deposed that he had first seen them on  

15th February 2005 while he was proceeding in his auto from Baker  

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Junction to MCH. He had seen an Omni Van and a motorcycle on the  

side of the road beyond Chemmanampadi, near the Medical College,  

and had seen two persons coming out of the said van.   He further  

deposed that the two people had then caught hold of the pillion rider  

of the motor cycle, and had taken him to the van.  Thereafter, the, van  

left the place and he followed the van to MCH. He identified  A-1 as  

the person he had seen there and A-2, as the person who had been  

riding the motorcycle.  

During  his  cross  examination  by  the  appellant  (A-1),  the  

witness deposed that he had in fact, seen three other persons there.  

However, he did not identify them.  

28. Mohammad  Sherif  (PW.13)  a  businessman,  deposed  that  he  

knew the appellant (A-1) and identified him as Shaji and also Vinu  

(A-2).  At  about  8.30 p.m.  on 15th February 2005, A2 and Praveen  

came  to  his  petty  shop  from  the  Arcadia  Bar  premises,  on  a  red  

coloured bike.  Jose  (PW8),  an  employee  of  PW13 was previously  

acquainted with the accused (A-2) and Praveen (deceased), and hence,  

PW8 introduced them as his friends. He further deposed that the Omni  

Van arrived in front of the Arcadia Bar at 11.30 pm. A1 got out of the  

driver seat and proceeded to the theatre. The three other persons came  

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out of the van and had black coffee at the witness’s shop. All of them  

(including  A-1)  then  returned  to  the  van.   Later,  when  A-2  and  

Praveen riding a bike, approached the Arcadia Bar, A-2 signaled to A-

1 to follow him and rode in the direction of Thirunakkara. The van  

followed  the  bike  and  they  headed  to  MCH,  Ettumanoor  and  

Ernakulam.  

During the cross examination on behalf of the appellant (A-1),  

the witness deposed that he did not tell anybody about A1 and that he  

did not even talk to Jose (PW.8), about the incident that occurred on  

15/02/2005. He deposed that  he did not  know A1’s friends,  or  the  

place to which A1 belonged. He only stated that he knew A1 when he  

was the control room, S.I.  

Mohammed Sherif (PW.13) denied having told the Police that  

Shaji  Sir  of  Valiadu was  the  person he  had seen  on the  road.  He  

deposed that he knew S.I.s such as Satheesan and Suseelan, and that  

they were also from the West Police Station. He further said that he  

knew of A1 only as control room S.I. He had read about the incident  

in the subsequent days’ newspaper. He further admitted that the help  

of the police, as well as that of the Municipality, was needed to run  

the petty shop which did business from 8.00 p.m. to 1.30 a.m.  

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29. Reji (PW11) deposed that on 15.2.2005 at about mid-night, he  

had gone to Baker Junction and there he had seen the appellant (A-1),  

getting out of the driver’s seat of a green coloured van.  He thereafter,  

crossed M.C. Road and went into the Post Office  and placed inland  

like material inside the post box.  The appellant (A-1) returned to the  

van after crossing the road, got into the driver’s seat and drove off  

towards Baker Junction.  It appears that in the cross-examination, he  

did not support the case of the prosecution.  However, his evidence is  

not very relevant with respect to the issues involved in this case, as at  

the initial stage the witness had supported the case of the prosecution  

to the extent that it was in fact, the appellant (A-1), who had posted  

the letter in the name of the deceased’s father, that was purported to  

have been written by Praveen (deceased), stating that he was going to  

Bombay in search of employment.  This letter seems to have been  

written to misdirect/mislead the deceased’s family. The same became  

entirely insignificant, as immediately after the murder of Praveen, the  

dismembered  parts  of  his  body  were  recovered.   Thereafter,  the  

incident became the talk of the town and the same was high-lighted by  

both, the print and the electronic media.

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30. The evidence referred to hereinabove alongwith the material on  

record, reveals that Praveen (deceased) was a victim of homicide and  

further that there is no dispute regarding the identification of his body  

and  its  parts  thereof,  as  has  been  referred  to  hereinabove.   The  

recoveries  of  a  shirt  (MO.1),  underwear  (MO.2)  and  of  a  watch  

(MO.3), belonging to Praveen (deceased) were identified by Pavithran  

(PW.1).  His body was also identified by PWs.1 to 3 and the DNA  

report  did  not  leave  any  room  for  doubt  with  respect  to  the  said  

identification.  Same stood proved by super imposition.

The injuries found on the body that were revealed by the post-

mortem  report established that the dismemberment of the parts of the  

body was possible by using a weapon like the chopper (MO.4), as was  

explained/opined  by  Dr.  Babu  (PW.71).   Praveen  died  in  the  

intervening  night  between  15/16.2.2005.   He  was  last  seen  on  

15.2.2005 with Vinu (A-2) and the appellant (A-1).  The motive as  

explained hereinabove stood proved.    Vinu (A-2) and the appellant  

(A-1) were closely related and together they had hatched a conspiracy  

to eliminate Praveen (deceased).  Pavithran (PW.1) has stated in his  

deposition that Praveen (deceased) did not bear any animosity towards  

any person.  In fact, in his statement under Section 313 Cr.P.C., the  

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appellant  has  even  admitted  so.   Praveen  (deceased)  was  seen  by  

Divakaran (PW.7) talking to Vinu (A-2) at his work place.  Divakaran  

(PW.7) was acquainted with both Vinu (A-2) and Praveen (deceased)  

since childhood.

The  evidence  of  Baiju  (PW.9)  who  was  working  at  Hotel  

Arcadia at Kottayam, revealed that he was the man who had served  

drinks  to  Vinu  (A-2)  and  Praveen  (deceased).   The  Virca  Report  

proved by Sujatha (PW.64), corroborated the same.

Jose  (PW.8)  and  Mohammed  Sherif  (PW.13)  identified  the  

appellant (A-1) and Vinu (A-2) and stated they knew both of them  

very well.  Baiju (PW.9) was not acquainted with either Vinu (A-2) or  

Praveen (deceased) but he did in fact, have an opportunity to see them  

for a sufficient amount of time as he had served them food.  Babu  

(PW.6)  deposed that  the appellant  (A-1)  was  well  acquainted  with  

him.  He stated that he had taken the Maruti Van (MO.5) from him on  

the afternoon of 15.2.2005, and had returned the same to him on the  

afternoon of 16.2.2005.  Phone calls made by the appellant (A-1) to  

Babu  (PW.6),  were  also  not  denied  by  the  appellant  in  his  cross-

examination  under  Section  313  Cr.P.C.   The  aforementioned  call  

details were duly proved.  There is also material on record to show  

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that the said van was used in the crime by the appellant (A-1) and 3  

others.

Vinu (A-2) and Praveen (deceased) after watching a movie at  

the  cinema  hall  and  having  meals  etc.,  proceeded  towards  

Thirunakkara on the bike, and Vinu (A-2) signaled to the person in the  

van by raising his hand.  The  appellant (A-1) and three other persons  

followed the bike in the van.  On the way Praveen (deceased), was  

transferred from the bike to the van as deposed by Shanavas (PW.12)  

auto  driver,  who  is  a  natural  witness,  and  he  also  identified  the  

appellant  (A-1),  Vinu  (A-2),  and  Praveen  (deceased)  by  way  of  

photographs.   He  stated  that  he  had  seen  the  van  standing  in  the  

middle  of  the  road.   The  said  witness  turned  hostile  and  did  not  

support the prosecution case fully.    Recoveries of all the material  

items/objects stood proved.   

31. A criminal conspiracy is generally hatched in secrecy, owing to  

which, direct evidence is difficult to obtain. The offence can therefore  

be proved, either by adducing circumstantial evidence, or by way of  

necessary implication.  However, in the event that the circumstantial  

evidence  is  incomplete  or  vague,  it  becomes  necessary  for  the  

prosecution to provide adequate proof regarding the meeting of minds,  

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which is essential in order to hatch a criminal conspiracy, by adducing  

substantive evidence in court.  Furthermore, in order to constitute the  

offence of conspiracy, it is not necessary that the person involved has  

knowledge of all the stages of action. In fact, mere knowledge of the  

main object/purpose  of  conspiracy,  would warrant  the attraction of  

relevant penal provisions. Thus, an agreement between two persons to  

do, or to cause an illegal act, is the basic requirement of the offence of  

conspiracy under the penal statute. (Vide: Mir Nagvi Askari v. CBI,  

AIR 2010 SC 528; Baldev Singh v. State of Punjab, AIR 2009 SC  

Supp.  1629;  State of  M.P.  v.  Sheetla Sahai,  AIR 2009 SC Supp.  

1744; R. Venkatkrishnan v. CBI, AIR 2010 SC 1812; S. Arul Raja  

v. State of T.N., (2010) 8 SCC 233;  Monica Bedi v. State of A.P.,  

(2011) 1 SCC 284; and Sushil Suri v. CBI, AIR 2011 SC 1713).

32. An argument has been advanced by Shri S. Gopokumaran Nair,  

learned senior counsel appearing on behalf of the appellant, that as the  

witnesses PW.8 and PW.11 have admitted in their cross-examination,  

that  they  have  been  the  accused  persons  in  certain  other  criminal  

cases, their testimony should not have been relied upon by the courts  

below.  The argument seems to be rather attractive at the outset, but  

has no substance, for the reason that the law does not prohibit taking  

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into consideration even the evidence provided by an accomplice, who  

has not been put to trial.   

It is a settled legal proposition that the evidence provided by a  

person who has not been put to trial, and who could not have been  

tried jointly with the accused can be considered, if the court finds his  

evidence reliable,  and conviction can also safely be based upon it.  

However, such evidence is required to be considered with care and  

caution. An accomplice who has not been put to trial is a competent  

witness, as he deposes in court after taking an oath, and there is no  

prohibition  under  any  law  to  act  upon  his  deposition  without  

corroboration.  (Vide:  Laxmipat  Choraria  &  Ors.  v.  State  of  

Maharashtra, AIR 1968 SC 938;  Chandran alias Manichan alias  

Maniyan  &  Ors.  v.  State  of  Kerala, AIR  2011  SC  1594;  and  

Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC  

10).

33. It has further been submitted that the prosecution failed to hold  

the test identification parade.  Therefore, the prosecution case itself  

becomes doubtful.

In Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191, this  

Court,  while  dealing  with  the  effect  of  non  holding  of  a  test  

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identification parade, placed very heavy reliance upon the judgments  

of this Court in Santokh Singh v. Izhar Hussain & Anr., AIR 1973  

SC 2190;  State of  Himachal Pradesh v.  Lekh Raj & Anr., AIR  

1999 SC 3916; and  Malkhan Singh & Ors. v. State of M.P., AIR  

2003 SC 2669 and held that, the evidence from a test identification  

parade is admissible under Section 9 of the Evidence Act, 1872.  The  

identification parade is conducted by the police. The actual evidence  

regarding identification,  is  that  which is  given by the witnesses  in  

court.  A test identification parade cannot be claimed by an accused as  

a  matter  of  right.   Mere  identification  of  an  accused  in  a  test  

identification  parade  is  only  a  circumstance  corroborative  of  the  

identification  of  the  accused  in  court.   Further,  conducting  a  test  

identification  parade  is  meaningless  if  the  witnesses  know  the  

accused, or if they have been shown his photographs, or if he has been  

exposed  by  the  media  to  the  public.  Holding  a  test  identification  

parade may be helpful to the investigation to ascertain whether the  

investigation is being conducted in a proper manner and with proper  

direction. (See also: Munna Kumar Upadhyay v. State of A.P., AIR  

2012 SC 2470).

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34. In  the  instant  case,  the  witnesses,  particularly  Jose  (PW.8),  

Baiju (PW.9), Reji (PW.11) and Shanavas (PW.12), made it clear that  

they were acquainted with the appellant since he was posted in the  

control  room of  their  city.   Moreover,  just  after  the  incident  took  

place, the  same being a sensitive case wherein the main accused was  

a highly ranked official of the police department, wide publicity was  

given to the same by the media. In light of the aforementioned fact-

situation, the holding/non-holding of a Test Identification Parade loses  

its significance. It is also pertinent to note that the defence did not put  

any  question  to  B.  Muralidharan  Nair  (PW.77),  the  investigating  

officer in relation to why such TI Parade was not held.

35. The  prime  witness  of  the  prosecution  has  no  doubt  been  

Shanavas (PW.12), and in relation to him, the submission advanced  

on behalf of the appellant that the High Court had entirely disbelieved  

his  testimony,  is  factually  incorrect.  In  fact,  the  High  Court  re-

appreciated the evidence of the said witness and held as under:  

“The  act  of  identifying  the  victim  from  his   passport  size  photograph  seems  to  be   unconvincing. But that does not mean that his   evidence in toto has to be thrown out. The fact   remains that atleast his evidence as regards the   act  of  accused  nos.  1  and  2  and  others  in   

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forcing a person from the motor bike into the   van has to be accepted.”

In view of the above, we do not find any cogent reason to dis-

believe the testimony of Shanavas (PW.12) in toto.  

36. Be that as it may, when a statement is recorded in court, and the  

witness  speaks  under  oath,  after  he understands the sanctity  of  the  

oath taken by him either in the name of God or religion, it is then left  

to the court to appreciate his evidence under Section 3 of the Evidence  

Act.  The  Judge  must  consider  whether  a  prudent  man  would  

appreciate such evidence, and not appreciate the same in accordance  

with his own perception. The basis for appreciating evidence in a civil  

or criminal case remains the same. However, in view of the fact that  

in a criminal case, the life and liberty of a person is involved, by way  

of  judicial  interpretation,  courts  have  created  the  requirement  of  a  

high degree of proof.       

37. In view of the above, we do not find any merit in the appeal and  

the same is dismissed accordingly. However, before parting with the  

case, we would like to mention that the courts below have appreciated  

the entire evidence meticulously, but it would have been desirable if  

all  the  circumstances  which  completed  the  chain,  rendering  the  

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accused  liable  for  punishment  could  have  been  put  together,  to  

facilitate better understanding of the judgment.       

 ..………………………….J.

                                                     (Dr. B.S. CHAUHAN)

 .…………………………..J. (V. GOPALA GOWDA)

New Delhi,  February 4, 2013

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