Sanjay Eknath Jadhav vs State Of Kerala on 30 January, 2024

[Cites 18, Cited by 0]

Kerala High Court

Sanjay Eknath Jadhav vs State Of Kerala on 30 January, 2024

This appeal is filed by the accused in S.C. No. 283 of 2012 on the file of the Additional Sessions Judge-II, Thodupuzha challenging the conviction and sentence passed against him for the offences punishable under Sections 302 and 394 r/w Section 34 IPC as per the impugned judgment dated 19.11.2014. The appellant herein was the original third accused and the case against him was split up from S.C. No. 246 of 2002.

2. The prosecution case is that the accused herein, along with 3 other accused persons, in furtherance of their common intention to commit murder and robbery, hired Tata Sumo vehicle bearing reg. No. KL 5E 6433 driven by the deceased Ashraf from the Municipal Taxi stand, Changanacherry on 23.08.2001 at 6.45 p.m. for a trip to Thodupuzha and while the deceased was driving the vehicle along with the accused Crl. Appeal No. 253 of 2018 :3: persons as passengers and when the vehicle reached near Kuzhimattom, the accused persons attacked the driver with a knife and chain and murdered him. Thereafter, the accused persons abandoned the dead body on the side of the road and took the vehicle to their native place in Maharashtra and thereafter sold the vehicle there and thereby, committed the offences as aforesaid.

3. As per the judgment in S.C. No. 246 of 2002, accused Nos. 1 and 4 were found guilty of the offences punishable under Sections 302 and 392 r/w Section 34 IPC and since accused Nos. 2 and 3 were absconding, the case against them was split up. Thereafter, when the accused herein was arrested and produced, this case has been re-filed against him.

4. After the production of the accused and hearing both sides, the trial court framed charge under Sections 302 and 394 r/w Section 34 IPC and when the charge was read over and explained to the accused he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 30 and marked Exhibits P1 to P35 and MOs 1 to 21 to prove the charge against the accused. Since it is found that the accused is not entitled for an acquittal under Section 232 Cr.P.C., he was called upon to enter on his defence. But no evidence was adduced from the side of the accused. Crl. Appeal No. 253 of 2018 :4:

5. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, by the impugned judgment dated 19.11.2014 convicted the accused and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for 2 years for the offence under Section 302 r/w Section 34 IPC; to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence under Section 394 r/w Section 34 IPC.

6. Heard Smt. Indu Susan Jacob, the learned amicus curiae and the learned Special Public Prosecutor Sri. Alex M. Thombra.

7. The learned amicus curiae argued that the prosecution has not adduced reliable evidence to prove the identity of the dead body as that of the deceased in the case and that the circumstances relied on by the prosecution are not cogently and firmly established and it cannot be held that the proved circumstances are incapable of any hypothesis other than the guilt of the accused and therefore, the accused is entitled for the benefit of reasonable doubt.

8. But, the learned Special Public Prosecutor argued that the dead body was found lying in a bush by the side of the road at Thodupuzha on Crl. Appeal No. 253 of 2018 :5: 24.08.2001 and after postmortem, the body was released to PW2, the brother of the deceased, and no challenge was made regarding the identity of the dead body, while cross examining the material witnesses. It is also argued that the prosecution has adduced clear evidence to show that the accused herein, along with the other accused persons, hired the vehicle of the deceased at 6.45 p.m., on 23.08.2001, for a trip to Thodupuzha from Changanacherry Municipal taxi stand and that the evidence of PWs 6 and 7, taxi drivers of Municipal taxi stand, Changanacherry, regarding the identity of the accused as one among the four persons, who hired the taxi of the deceased and the subsequent recovery of the vehicle and other material objects on the basis of the disclosure statement of the accused from his native place at Maharashtra and the evidence of PWs 8 and 9 regarding the stay of the accused herein along with the other accused persons in a lodge at Kottayam on 22.08.2001 are all circumstances proved by the prosecution having a definite tendency unerringly pointing towards the guilt of the accused.

9. The learned amicus curiae argued that a perusal of Exhibit P11 inquest report and Exhibit P13 postmortem certificate would clearly show that the body was not identified at the time of inquest or postmortem. The evidence of PW23 shows that on 24.08.2001, while working as a Police Constable in Thodupuzha Police Station, he was on guard duty of the dead body and after postmortem examination, the body was Crl. Appeal No. 253 of 2018 :6: released to the brother of the deceased. It is pertinent to note that the evidence of PW23 in this regard is not challenged in cross examination. The brother of the deceased is examined as PW2 and his evidence shows that his brother has not returned after the trip and on the next day, he came to know about the news in Rashtradeepika about the dead body and in chief examination, he stated that he identified the photographs of the dead body produced by the police and thereafter, the dead body was taken to the Medical College Hospital, Kottayam and he also deposed that he can identify the dress of the deceased.

10. In cross examination, PW2 stated that he did not see the dress on the dead body while in the ambulance; but, subsequently he saw the same in the court. It is pertinent to note that even though PW2 specifically stated in cross examination that the dress was not there in the dead body, while the dead body was in the ambulance, the defence has not put any question to PW2 challenging the identity of the dead body. Further, the prosecution has also examined the wife of the deceased as PW13 and in spite of the fact that after postmortem, the body was released to the brother of the deceased, there was also no challenge regarding the identity of the dead body while cross examining PW13, who is none other than the wife of the deceased. Crl. Appeal No. 253 of 2018 :7:

11. It is not in dispute that the body was recovered on the next day morning and the defence has no case that there was any disfiguration of the face or decomposition so as to make the identification of the body difficult and in such a situation, the unchallenged evidence of PWs 2 and 13 regarding the identity of the dead body as that of the deceased Ashraf is sufficient identification of the corpus delicti.

12. Exhibit P1, First Information Statement, was given by PW1, a driver by profession at Thodupuzha, and according to PW1, at about 6 a.m., on 24.08.2001, he saw a dead body lying in a bush on the side of Thodupuzha-Koothattukulam road. PW1 also noticed stab injuries on the body and a blood stained turkey lying near the body. PW24 was the then Circle Inspector of Thodupuzha, who registered Exhibit P15 FIR on 24.08.2001 on the basis of Exhibit P1 First Information Statement of PW1 and conducted the inquest of the dead body. The inquest report is marked as Exhibit P11. The pants and shirt recovered from the dead body are marked as MOs 8 and 9 and a turkey as MO10. One jetty, a pair of chappals, one comb and a piece of paper were identified and marked as MOs 11 to 14. A bill of Vijaya Enterprise is marked as MO15. Three currency notes of the denomination, Rs.50/-, are identified as MO16 series and the property list prepared for producing the said properties before the court is marked as Exhibit P16. Crl. Appeal No. 253 of 2018 :8:

13. PW30, while working as Deputy Superintendent of Police, Crime Branch, Idukki, took over the investigation of this case from 18.09.2001 and Exhibit P28 is a report filed in this regard. According to PW30, he arrested the 4th accused on 29.04.2002 and from the statement of the 4th accused, it is revealed that accused Nos. 1 to 3 were also involved in the case.

14. PW6 deposed that during 2001, he was working as a taxi driver at Municipal taxi stand, Changanacherry and that the deceased Ashraf was also a taxi driver in the said taxi stand. PW6 deposed that at about 6 p.m., 4 persons came there and out of them, 2 persons crossed the road and came near to the vehicle of Ashraf and one among them talked to Ashraf and thereafter, called the other two persons and thereafter, they together entered the Sumo vehicle of the deceased and the vehicle proceeded towards Kottayam side. According to PW6, when the vehicle reached near the shop of PW5, the driver slowed down the vehicle and then proceeded further and on the next day, he came to know from the newspaper that an unknown dead body was found. PW6 would say that the said dead body was that of Ashraf and he also identified the accused herein as one among the persons who hired the vehicle.

Crl. Appeal No. 253 of 2018 :9:

15. PW7 was also a taxi driver at Changanacherry and he also deposed that the deceased Ashraf was a taxi driver in that taxi stand. The evidence of PW7 shows that PW6 was also a taxi driver at Changanacherry Municipal taxi stand and on the day before he came to know about the death of Ashraf, he had met Ashraf in the taxi stand. He saw two persons talking to Ashraf and thereafter, two other persons, who were standing on the opposite side of the road, also joined them and thereafter, the said persons entered the taxi of Ashraf and they proceeded towards Kottayam side. On the next day morning, he came to know about the murder of Ashraf and he identified the accused as one among the persons who hired the taxi of the deceased from Changanacherry Municipal taxi stand.

16. PW5 deposed that he is conducting business in old metal items opposite to Municipal Office, Changanacherry and that the deceased Ashraf, a taxi driver in the taxi stand, was his friend. According to PW5, during 2001, at about 6.30 p.m., while he was in his shop, the deceased came there with his Sumo vehicle and after lowering the glass, the deceased told him that he is going to Thodupuzha for a trip.

17. The owner of the Tata Sumo Taxi car bearing registration No. KL-5 B 6433 driven by the deceased at the time of occurrence is examined as PW4. PW4 deposed that during 2001, his vehicle was Crl. Appeal No. 253 of 2018 : 10 : driven by Ashraf and the vehicle used to be parked at Municipal taxi stand, Changanacherry. He stated that on 23.08.2001, he was at Coimbatore and when he returned, in the night, his wife told him that his vehicle has been hired for a trip to Thodupuzha and therefore, there is a possibility for delay in returning the vehicle. According to PW4, the vehicle was not returned, even on the next day, and therefore, he made enquiries in the taxi stand and came to know that the vehicle was hired for a trip at about 6 p.m. on the previous day and thereafter, he came to see the newspaper report about a dead body.

18. PW3 is the brother-in-law of PW4. According to PW3, while he was in the house of PW4, on the previous day of the occurrence, he attended a telephone call from Ashraf and at that time, Ashraf told him that he is going for a trip to Thodupuzha and that he will be late. The evidence of PW3, in cross examination, shows that he informed the said fact to the wife of PW4 and that he came to know about the death of Ashraf from the newspaper report. PW9 was the owner of Thadathil lodge near Railway Station, Kottayam and PW8 was working as a room boy in the said hotel during 2001. According to PW8, on 22.08.2001, 4 Hindi speaking persons came to the lodge and took a room. The certified copy of the relevant page of the register in the hotel is marked as Exhibit P3, and Exhibit P4 is the mahazar prepared by the police and PW8 also identified his signature in Exhibit P4 mahazar. Crl. Appeal No. 253 of 2018 : 11 :

19. PW8 identified the accused herein as one among the persons who took the room in the hotel on 22.08.2001. The evidence of PW8 further shows that the said persons vacated the room at about 5 p.m., on 23.08.2001. According to PW9, the room boy used to intimate him when persons from other States are allotted room and according to PW9, he was also present when 4 persons took room at about 5.30 p.m., on 22.08.2001 in his lodge and he also stated that the departure time in Exhibit P3 is recorded in his handwriting. PW9 also identified the accused herein as one among the persons who took room in his hotel on 22.08.2001.

20. It is pertinent to note that when the accused was questioned under Section 313 Cr.P.C., he stated that during 2001, he was residing at Sangli district and he was summoned to Bitta Police Station and when he reached the Police Station, one Sanjay Dutt Pattil was there with a Tata Sumo car and police officials from Kerala were also present. He told the police that Ramchandrar is residing near to his house and when he was asked as to whether Ramchandrar was there in Kerala, he told the police that it is not known to him. According to the accused, subsequently he was taken to Kerala and after taking him to a lodge, his photographs were taken and he was also shown to the witnesses who were present there. The accused further stated that he has not Crl. Appeal No. 253 of 2018 : 12 : committed any crime and that at the time of the alleged occurrence, he was admitted in a hospital in his village.

21. The findings in Exhibit P13 postmortem certificate and the evidence of PW21, doctor who conducted the postmortem examination, proves that the death of Ashraf is homicide, 25 ante-mortem injuries were noted in the dead body, and according to PW21, injury No.8 on the chest was fatal one and that it was an incised penetrating wound that can be caused with a knife. PW21 also deposed that injury Nos. 6 and 7 were on the neck and that it can be caused by an iron chain. The ante- mortem injuries noted in Exhibit P13 postmortem certificate are as follows:

" 1. Abrasion 0.5 x 0.3 cm on the left side of forehead, 5 cm outer to midline and 1 cm above eyebrow.

2. Multiple small abrasions over an area, 5.5 x 2 cm on the right side of face, just outer to mouth.

3. Contusion, 4 x 2 x 1 cm on the inner aspect of upper lip, just to the left of midline.

4. Contusion, 3 x 1 x 0.5 cm on the inner aspect of lower lip, just to the left of midline.

5. Contused abrasion, 3.5 x 1 cm on the under surface of chin.

6. Multiple small abrasions over an area 5 x 4 cm on the front of middle of neck, just below Adam's apple.

Crl. Appeal No. 253 of 2018 : 13 :

7. Multiple small abrasions over an area 8 x 7 cm on the left side of neck, 8 cm below ear.

Flap dissection of neck was done under a bloodless field, subcutaneous tissues underneath were normal. Muscles, bones, vessels, nerves and cartilages of neck were intact and normal.

8. Incised penetrating wound, 3.6 x 0.8 cm, horizontal on the left side of front of chest, 2.7 cm outer to midline and 16 cm below collar bone. Inner end was cleanly cut and outer end showed splitting of tissues. Left chest cavity was penetrated by cutting 5th intracostal space and heart was penetrated by cutting front wall of left ventricle after piercing the pericardium. Left chest cavity contained 800 ml of fluid blood. Left lung pale and collapsed. The wound was directed backwards for a depth of 8.5 cm.

9. Incised wound, 2.7 x 0.8 x 0.8 cm, oblique on the left side of front of chest lower inner end being 10.5 cm outer to midline and just above costal margin.

10. Incised wound 1.4 x 0.8 x 0.3 cm oblique on the left side of front of abdomen, 14 cm outer to midline and 3 cm below costal margin.

11. Incised wound, 3.5 x 1.3 x 2 cm oblique on the left side of front of abdomen, upper end being 5.5 cm outer to midline and 8 cm below costal margin.

Crl. Appeal No. 253 of 2018 : 14 :

12. Incised wound, 2.8 x 1.3 x 1.5 cm, horizontal on the left side of front of abdomen, inner end 1.3 cm outer to midline and 4 cm below injury No.11.

13. Incised wound 3.3 x 1.3 x 2 cm oblique on the left side of front of abdomen lower end 6.5 outer to midline and 4 cm below injury No.10.

14. Incised wound 3.5 x 1.2 x 1.5 cm oblique on the front of right side of abdomen, upper inner end 1.3 cm outer to midline and 15 cm below lower end of sternum.

15. Incised wound, 1 x 0.3 x 0.2 cm oblique on the right side of abdomen, lower inner end being 11 cm outer to midline and 5 cm below costal margin.

16. Abrasion 2 x 0.2 cm on the front of right leg, 4 cm below knee.

17. Multiple small abrasions over an area 6 x 3 cm on the outer aspect of right ankle.

18. Incised wound, 3 x 1.3 x 1.5 cm vertical on the front of left elbow.

19. Incised wound 2.5 x 1 x 0.5 cm vertical on the front of left elbow.

20. Incised wound 3 x 1.2 x 1.5 cm oblique on the front of left forearm, 2.5 cm below injury No.19.

21. Abrasion 2 x 1.5 cm on the front of left forearm 5 cm above wrist.

22. Incised wound, 4 x 1.5 x 2 cm oblique on the back of left forearm, 3 cm below elbow.

Crl. Appeal No. 253 of 2018 : 15 :

23. Incised wound 3.5 x 1.5 x 1 cm oblique on the back of left forearm 6 cm below injury No.22.

24. Incised wound 3 x 1.3 x 1.5 cm, oblique on the back of left forearm, 0.5 cm below injury No.23.

25. Incised wound 2 x 1 x 0.5 cm oblique on the back of left forearm just outer to injury No.23."

22. PW10 is a native of Maharashtra and a goldsmith by profession. He deposed that for the past 25 years, he is residing in Kerala and conducting a jewellery shop at Thodupuzha. According to PW10, the accused herein and the other accused persons are known to him. He stated that the first accused Ramachandra Sankar Suryavamsi is the son of his elder sister and that the first accused resided with him at Thodupuzha from 1995 to 2000. PW10 deposed that the 4 th accused, Krishna Madhukkar, was his neighbour and that the 4 th accused resided at Muvattupuzha for the period from 1995 to 1999.

23. According to PW10, the accused in this case, Sanjay Ekanath, is also known to him and that after the occurrence in this case, the 4 th accused met him at a hotel in Thodupuzha for discussing about the money due to the 4th accused from the first accused. At that time, PW10 told the 4th accused that the first accused left the company of PW10 3-4 years before and their transaction is not known to him. PW10 also stated that the 4th accused informed him that accused Nos. 1 to 4 jointly took Crl. Appeal No. 253 of 2018 : 16 : the Tata Sumo to Maharashtra and in that connection, money is due from the first accused to the 4 th accused. According to PW10, he contacted the father of the 1st accused through phone and at that time, the father of the first accused informed him that the children brought a Tata Sumo from Kerala and subsequently, the witness passed the said information to the police.

24. The evidence of PW30, Deputy Superintendent of Police, Idukki Crime Branch, who took charge of the investigation on 18.09.2001, shows that on 27.04.2002, PW10 reached his office and after recording the statement of PW10, he arrested the 4 th accused on 29.04.2002 and from the confession statement of the 4 th accused, it is revealed that accused Nos. 1 to 3 are also involved in the crime and therefore, he sent PW25, Detective Inspector, to Maharashtra and PW25 arrested the 3rd accused. PW25, Detective inspector of Crime Branch, Idukki Unit, deposed that he arrested the accused herein from Bitta bus stand of Sangli District Maharashtra at 7.30 a.m. on 06.05.2002 and questioned him with the help of one Bipin Kumar Chandrasekharan Nair and on the basis of the statement of the accused that the Tata Sumo was sold to one Sanjay Dat Pattil at Tarapi and if he is taken to that place, he will point out the Tata Sumo and the person who purchased the same, the witness reached the said place along with the accused and recovered the Tata Sumo car handed over by Sanjay Dat Pattil by Crl. Appeal No. 253 of 2018 : 17 : preparing Exhibit P19 mahazar. According to PW25, there was no number plate on the vehicle at that time. The relevant portion of the confession statement of the accused translated in Malayalam is marked as Exhibit P19(a).

25. In the confession statement of the accused, it is stated that the battery and the number plate of the vehicle are kept in the house of Ajith at Dalvandi and that he will point out the said person, if he is taken to that place. The witness reached the house of Ajith along with the accused and there the accused and Ajith identified each other and thereafter, the battery and the number plates handed over by Ajith are recovered by preparing Exhibit P20 mahazar. The number plates are identified as MOs 1 and 2. The relevant portion of the confession statement of the accused is marked as Exhibit P20(a). According to PW25, he also recovered a metal chain from the possession of the accused at the time of arrest by preparing Exhibit P21 mahazar and the said chain is marked as MO17.

26. PW26 was a Police Constable, who accompanied PW25 to Maharashtra, and his evidence shows that he also assisted PW25 in arresting accused Nos.2 and 3 and also signed Exhibit P20 mahazar as a witness.

Crl. Appeal No. 253 of 2018 : 18 :

27. PW28 is a native of Tharchi in Maharashtra and he deposed that the accused is known to him. According to PW28, he was conducting a hotel at Palkkiniyil and the accused herein used to visit his hotel for eating food. PW28 deposed that he discussed about purchasing the Tata Sumo car with Ramachandar, who is a friend of the accused herein and at that time, the accused herein was also present. Ramachandrar told the witness that the vehicle belongs to his uncle residing in Kerala and the witness purchased the Tata Sumo vehicle for a consideration of Rs.1,75000 by paying an advance amount of Rs.25,000/-.

28. According to PW28, the accused has not handed over the RC book of the vehicle and he was told that the RC book is pledged for a loan and that after clearing the loan, they will hand over the RC Book. PW28 stated that at the time when he received the vehicle, there was no number plate and the number was written with chalk and subsequently, the accused herein and Ramachandrar approached him for the balance amount and he paid Rs.5000/- and another amount of Rs.4000/- and told the accused persons to bring the RC book of the vehicle or else to take back the vehicle. The evidence of PW28 further shows that subsequently, he handed over the vehicle to the Kerala Police; but, according to PW28, at that time, the accused herein was not present. Crl. Appeal No. 253 of 2018 : 19 :

29. The evidence of PW25, who effected the recovery of the vehicle, shows that he has not recorded the confession statement of the accused herein in marathi or hindi, the languages known to the accused. The learned counsel for the appellant relied on the decision of this Court in Sanjay Oraon v. State of Kerala [ILR 2021 (3) Ker. 939 = 2021(5)KHC1], wherein it was held that the information must be the one given by the accused and the statement conveying the information must be his own statement in his own language and then only so much of the information as is necessary and sufficient to cause the discovery, will be admissible under Section 27 of the Indian Evidence Act and that the translated statement falls short of the statutory mandate.

30. The learned Special Public Prosecutor argued that even if the disclosure statement made by the accused herein regarding the sale of the Tata Sumo vehicle to PW10 is not admissible under Section 27 of the Indian Evidence Act for the reason that the statement was not recorded in the language of the accused, the evidence of PW10 regarding the conduct of the accused is relevant under Section 8 of the Indian Evidence Act and in this connection, the learned Special Public Prosecutor also relied on the decision of the Honourable Supreme Court in A.N Venkatesh and another v. State of Karnatada [(2005) 7 SCC 714] wherein it was held as follows:

Crl. Appeal No. 253 of 2018 : 20 :

"By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act."

31. The learned amicus curiae argued that the case against the accused is based on circumstantial evidence and it is well settled that Crl. Appeal No. 253 of 2018 : 21 : while appreciating circumstantial evidence, the court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence.

32. 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."

33. The Hon'ble Supreme Court of India in "Hanumant Govind Crl. Appeal No. 253 of 2018 : 22 : 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."

34. 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. 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 Crl. Appeal No. 253 of 2018 : 23 : 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."

35. It is well settled that an accused cannot claim the benefit of doubt on the basis of hypothetical propositions or imaginative doubts and that a doubt must be reasonable and it must be such that a reasonable person would entertain. In State of Madhya Pradesh v. Dharkole [AIR 2005 SC 44], it was held as follows:

"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case? Referring to of probability amounts to 'proof is an exercise the inter- dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See "The Mathematics of Proof II" Glanville Williams : Criminal Law Review, 1979, by Sweet and Maxwell, p.340(342).

"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when Crl. Appeal No. 253 of 2018 : 24 : they tend to occur together and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."

Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt s not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case."

36. In this case, even though the accused has taken a stand at the time of 313 questioning that at the alleged time of occurrence, he was undergoing treatment in a hospital at his native place, the evidence of PW9, the owner of Thadathil lodge at Kottayam and PW8, who was working as a room boy in the said hotel, and the entries in Exhibit P3 register shows that the accused herein, along with 3 others, took a room in the said hotel on 22.08.2001 and they subsequently vacated the room at 5.30 p.m. on 23.08.2001. PWs 8 and 9 also identified the accused Crl. Appeal No. 253 of 2018 : 25 : herein as one among the persons who took room in the hotel on 22.08.2001.

37. PWs 6 and 7 are taxi drivers in the same taxi stand at Changanacherry, where the deceased Ashraf used to park his vehicle and their evidence shows that on the date of the incident, 4 persons approached the deceased for hiring the taxi and the accused herein was one among them and after the accused persons entered the taxi car of the deceased, the vehicle was driven towards Kottayam side and it is also in evidence that on the way, the deceased slowed down the vehicle near the shop of PW5 and informed PW5 that he is proceeding to Thodupuzha for a trip. The evidence of PW1 shows that at about 6 a.m., on 24.08.2001, the body of the deceased was spotted on the side of Thodupuzha-Koothattukulam road at Kolani. Even though, the above witnesses are seriously cross examined, nothing material was brought out to discredit their evidence in chief examination and it is pertinent to note that they are natural witnesses having no reason to falsely depose against the accused herein. We find that the evidence of PWs 6 to 9 are consistent and convincing and there is no reason to disbelieve their evidence regarding the presence of the accused herein along with other accused persons in the lodge at Kottayam and subsequently, in the Crl. Appeal No. 253 of 2018 : 26 : Municipal taxi stand at Changanacherry and hiring of the vehicle by them for a trip to Thodupuzha.

38. In State of Maharashtra v. Siraj Ahmed Nisar Ahmed ((2007) 5 SCC 161), it is held as follows:

"While appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hypertechnical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole."

39. In this case, there is clear evidence to show that the accused persons hired the vehicle from the Municipal taxi stand, Changanacherry Crl. Appeal No. 253 of 2018 : 27 : in between 6 and 6.45 p.m. on 23.08.2001 and the dead body of Ashraf was found on the next day morning on the side of the road near Thodupuzha and the evidence of PWs 6 and 7, taxi drivers at Changanacherry Municipal taxi stand, clearly proves that deceased Ashraf left the taxi stand along with the accused herein for a trip to Thodupuzha and therefore, there is convincing evidence to show that the deceased Ashraf was last seen alive in the company of the accused persons and therefore, it is for the accused to explain as to what had happened to Ashraf after they hired his vehicle to go to Thodupuzha.

40. In State of Goa v. Pandurang Mohite (AIR 2009 SC 1066) the Honourable Supreme Court held thus:

"So far as the last seen aspect is concerned, it is necessary to take note of two decisions of this court. In State of U.P. v. Satish (2005(3) SCC 114) it was noted as follows:

"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to Crl. Appeal No. 253 of 2018 : 28 : conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.Ws.3 and 5, in addition to the evidence of P.W.2."

In Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006(10) SCC

172) it was noted as follows:

"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."

41. The learned amicus curiae argued that the identification of the accused herein in the test identification parade conducted cannot be relied upon in view of the fact that the photographs of the accused had appeared in the local newspapers and in view of the delay in conducting the test identification parade. The learned Special Public Prosecutor pointed out that the accused herein has not made any complaint to the Magistrate at the time conducting the test identification parade and it is also pointed out that it is the identification in the court that forms substantive evidence and the identification parade conducted during the Crl. Appeal No. 253 of 2018 : 29 : investigation is only to ensure that the Investigating Agency is proceeding in the correct direction and in this connection, the learned Special Public Prosecutor also relied on the decision in Ankush Maruti Shinde v. State of Maharashtra ((2009) 6 SCC 667) and Saji v. State of Kerala (2007(2) KHC 595). It is now well settled that the substantive evidence is the evidence of identification in court and that the identification parade is primarily meant for the purpose of helping the Investigating Agency to ensure that the investigation is progressing on the right path and therefore, the purpose of a prior test identification is only to test and strengthen the trustworthiness of the evidence regarding the identification in court.

42. In this case, the evidence of PW10, goldsmith, who is conducting a jewellery shop in Thodupuzha shows that the accused persons herein are known to him and that the 4 th accused met him to discuss about the money due from the first accused in connection with the transportation of the Tata Sumo Vehicle to Maharashtra. PW10 has categorically deposed before the court that the first accused Ramachandra Sankar Suryavamsi is the son of his elder sister and that after the 4th accused met him, he contacted the father of the first accused through phone and got the information that the accused persons brought a Tata Sumo car from Kerala and accordingly, he informed the police about the same. The evidence of PW28, who Crl. Appeal No. 253 of 2018 : 30 : purchased the Tata Sumo car for a consideration of Rs.1,75,000/- shows that the accused herein was also present along with the first accused, when they sold the Tata Sumo vehicle to PW28 by saying that the vehicle belongs to the uncle of the first accused. The evidence of PW28 further shows that he was unable to use the vehicle for want of RC book and number plate in the vehicle and that even though the accused persons promised to bring the RC book after clearing the loan, they failed to do so. We have already found that the evidence of PW28 regarding the presence of the accused herein along with the first accused for the sale of the vehicle to PW28 is admissible under Section 8 of the Indian Evidence Act.

43. The evidence of PW30 shows that after the recovery of the vehicle 33 scalp hairs were recovered from the Tata Sumo vehicle and the same was sent for scientific examination to the Forensic Science Laboratory. Exhibit P34 report from the Forensic Science Laboratory shows that 2 human scalp hairs in item No. 27 are similar to the sample scalp hairs in item No. 3. From page No. 11 of Exhibit P34, it can be seen that item No.3 is scalp hair of the accused Sanjay Ekanath. In this connection, the learned amicus curiae pointed out that as per the prosecution case, the Tata Sumo vehicle was hired from Changanacherry Municipal taxi stand on 23.08.2001 and as per the evidence of PW30, the vehicle was recovered from the possession of PW28 only on Crl. Appeal No. 253 of 2018 : 31 : 05.06.2002 and therefore, considering the time gap, the alleged recovery of 33 scalp hairs from the Tata Sumo vehicle is not at all convincing and therefore, no reliance can be placed on Exhibit P34 report. But, the learned Special Public Prosecutor pointed out that the evidence of PW28 would clearly show that the accused persons failed to hand over the RC book and number plate of the vehicle and that even though the accused persons promised to produce the RC Book, after clearing the loan, they failed to do so and therefore, PW28 was not in a position to use the vehicle during the intervening period and in that circumstance, there is no reason to suspect the recovery of scalp hairs from the vehicle.

44. In Zahira Habibullah H. Sheikh V. State Of Gujarat 2004 (4) SCC 158, the Hon'ble Supreme Court held thus:

"A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, Crl. Appeal No. 253 of 2018 : 32 : and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny."

45. On a careful re-appreciation of the entire evidence, we find that the prosecution has proved beyond reasonable doubt that the accused herein along with the other 3 accused persons, hired the Tata Sumo Vehicle driven by the deceased from Changanacherry Municipal taxi stand for a trip to Thodupuzha at about 6.45 p.m., on 23.08.2001 and that on the next day morning, at 6 a.m., the dead body of the driver Ashraf was found in a bush near the side of the road at Thodupuzha and it is also proved by the prosecution that the stand taken by the accused that he was admitted in a hospital in his native place at the time of the alleged occurrence is false and the evidence from the side of the prosecution clearly proves the presence of the accused along with the other accused persons before the occurrence in a lodge at Kottayam and thereafter, at the Municipal taxi stand, Changanacherry. It is also proved beyond reasonable doubt that the accused herein along with other accused persons hired the vehicle driven by the deceased from Changanacherry Municipal taxi stand for a trip to Thodupuzha. The subsequent recovery of Tata Sumo Vehicle from the possession of PW28 and the evidence of PW28 regarding the presence of the accused herein Crl. Appeal No. 253 of 2018 : 33 : along with the first accused when he purchased the vehicle also proves the significant role of the accused herein in causing the death of Ashraf. Therefore, we find that the trial court rightly convicted the accused for the offences under Sections 302 and 394 r/w Section 34 IPC and we find no legal or factual infirmities in the findings of the court below and therefore, this appeal is devoid of merits and is liable to be dismissed.

In the result, this appeal is dismissed, confirming the conviction entered and the sentence passed by the learned Sessions Judge in S.C No. 283 of 2012. Interlocutory applications, if any pending, shall stand closed.

sd/-

P.B. SURESH KUMAR, JUDGE.

sd/-

JOHNSON JOHN, JUDGE.

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