Supreme Court of India
R. SHAJIversusSTATE OF KERALA.
- Citation
- 2013 INSC 72
- Decided
- 4 February 2013
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The Supreme Court affirmed the conviction, finding that the prosecution proved the appellant's guilt beyond reasonable doubt through a complete chain of circumstantial evidence, motive, and corroborative forensic and testimonial evidence.
Summary
The appellant, a Deputy Superintendent of Police, was convicted for the murder of Praveen (the deceased) and for criminal conspiracy under IPC s.302 r.w. s.1208. The prosecution relied on circumstantial evidence, including DNA identification of the dismembered body parts, recovery of the weapon (a chopper) and a van at the appellant's behest, forensic testimony that the chopper could cause the injuries, and witness statements linking the appellant and his associate to the crime. The defence argued lack of motive, absence of a test identification parade, non‑disclosure of statements recorded under CrPC s.164, and the failure to detect blood group on the weapon. The Supreme Court held that the motive was established, the lack of a test parade was immaterial given the witnesses' prior acquaintance and media exposure, statements under s.164 are admissible for corroboration, and the forensic shortcomings did not create reasonable doubt. Consequently, the conviction was upheld. The appeal was dismissed.
Issues considered
- The adequacy of circumstantial evidence to prove murder and criminal conspiracy under IPC s.302 r.w. s.1208.
- Whether the absence of a demonstrated motive defeats the prosecution's case.
- The impact of not conducting a test identification parade on the reliability of eyewitness testimony.
- The admissibility and effect of statements recorded under CrPC s.164 on the trial.
- The significance of the failure to determine the blood group on the recovered weapon.
- The admissibility of accomplice testimony and evidence from witnesses not put to trial.
- The permissibility of convicting solely on circumstantial evidence in a murder case.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 164, s. 207
- Indian Evidence Act, 1872s. 134, s. 157, s. 27, s. 3, s. 8, s. 9
- Indian Penal Code, 1860s. 1208, s. 120B, s. 201, s. 302, s. 364
Subjects
murdercriminal conspiracycircumstantial evidencemotivetest identification paradesection 164 CrPCforensic evidenceDNA identificationweapon recoveryaccomplice testimony
Judgment
[2013] 3 S.C.R. 1172
A R. SHAJI
v..
STATE OF KERALA.
(Criminal Appeal No. 1774 of 2010)
FEBRUARY 4, 2013
B
[DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.]
Penal Code, 1860 - s.302 rlw s.1208 - Murder -
Criminal conspiracy -Dismembered parts of victim's body
C recovered from a lake - Case based on circumstantial
evidence against accused-appellant and other accused
persons - Conviction of appellant - Justification - Held:
Justified - Evidence on record clearly established that
appellant had adequate reason to harbour animosity towards
o the victim 'P', as he may well have been unable to tolerate
the intimacy that 'P' had developed with appellant's wife - PW
testified that appellant had threatened that in the event that
he was able to lay his hands on 'P', he would chop him up
into pieces - The motive thus stood proved - Victim last seen
E with appellant (A-1) and A-2 - Recovery of chopper at the
behest of appellant - Injuries revealed by post-mortem report
established that dismemberment of parts of the body was
possible by using a weapon like chopper· - Victim's skull
recovered on basis of disclosure statement of appellant -
F Use of vehicle in the crime also stood proved - Appellant
clearly involved in conspiracy ·to eliminate 'P' - Prosecution
proved its case beyond reasonable doubt.
Code of Criminal Procedure, 1973 - ss.161 and 164 -
Statements uls.161 and u/s.164 - Difference - Held:
G Statements uls.161 can be used only for the purpose of
contradiction - Statements u/s. 164, however, can be used for
both corroboration and contradiction - Evidence Act, 1872 -
s.157.
H 1172
R. SHAJI v. STATE OF KERALA 1173
Code of Criminal Procedure, 1973 - s.164 - Object of- A
Discussed.
Criminal Law - Criminal conspiracy - Proof - Held:
Offence of criminal conspiracy can be proved, either by
adducing circumstantial evidence, or by way of necessary
B
implication - However, if the circumstantial evidence is
incomplete or vague, it becomes necessary for the
prosecution to provide adequate proof, by adducing
substantive evidence in court - In order to constitute the
offence of conspiracy, it is not necessary that the person C
involved has knowledge of all the stages of action - Mere
knowledge of the main object/purpose of conspiracy, would
warrant the attraction of relevant penal provisions.
Evidence - Weapon of offence - Recovered at the
behest of the accused - Blood stuck on the weapon - Failure D
by sero/ogist to detect origin of the blood due to dis-integration
of the serum - Effect - Held: It does not mean that the blood
stuck on the weapon of offence 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 E
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 some
objectivity, no benefit can be claimed by the accused in this F
regard - Once recovery was made in pursuance of disclosure
by the accused, the matching or non-matching of the blood
group (s) lost its' significance.
'·
Evidence Act, 1872 - s.3 - Appreciation of evidence -
Jn civil case and in criminal case - Held: Basis for G
appreciating evidence in a civil or criminal case is same -
However, since 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.
H
1174 SUPREME COURT REPORTS (2013) 3 S.C.R.
A Evidence Act, 1872 - s.9 - Test identification parade -
Held.· 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 - In the instant case, just after the incident took
B place, the main accused being a highly ranked police official,
wide publicity was given to the same by the media - Moreover,
the witnesses made it clear that they were acquainted with the
appellant - In such fact-situation, holding/ non-holding of Test
Identification Parade lost its significance.
c Evidence Act, 1872 - s.134 - Evidence of witness -
Appreciation of - Held: It is not the number of witnesses, but
the quality of their evidence which is important - Evidence
must be weighed and not counted.
o The prosecution cc.se was based on circumstantial
evidence. A chopper (M.0.4) used for dismembering the
victim ('P') was recovered at the instance of the appellant.
A Maruti Van (M.0.5) was also similarly recovered. Charge
sheet was filed against five persons, including the
E appellant. The trial however, could be conducted only
against two persons, as all the others were absconding.
The appellant (A-1) was convicted under Section 302
read with Section 120-8 of IPC, and sentenced to life
imprisonment. A-2 too was sentenced to undergo
F imprisonment for life. Both the accused were also
convicted under Section 201 read with Section 120-B IPC
and also under Section 364 read with Section 120-B IPC.
Aggrieved, both of them preferred Criminal Appeal which
was dismissed by the High Court.
G
In the instant appeal, the conviction of appellant was
inter alia challenged on grounds - that there was no
motive for the appellant to cause death of 'P'; that though
appellant/A-1 and A-2 were arrested, no Test Identification
H Parade was conducted; that the statements of witnesses
R. SHAJI v. STATE OF KERALA 1175
as recorded under Section 164 CrPC were not exhibited A
before the court for purpose of corroboration and
confrontation; and that as the blood group of the blood
stains found on the alleged weapon of offence i.e. the
chopper could not be ascertained, the recovery of the
chopper could not be relied upon. B
The question that therefore arose for consideration
was whether anyone apart from the appellant could have
committed the murder of 'P' and that the various
circumstances that stood proved, pointed only towards
the guilt of the appellant.
c
Dismissing the appeal, the Court
HELD: 1.1. 'P' (deceased), was a victim of homicide,
and the dismembered parts of the body recovered from D
the lake were those of 'P', as the same stood proved by
the DNA report. The recovery of other articles also stood
proved. Some police officers collected samples of blood
stains from the floor of a van and also some hair. The said
hair did in fact, belong to 'P'(deceased), and thus, the use
E
of the said vehicle in the crime stood proved. The
recovery of the chopper (M.0.4) stood proved by PW.5.
[Paras 6,7, 8 and 9J [1189-D-E-G; 1190-E-F, HJ
1.2. As per the deposition of PW.77, the appellant
made a disclosure statement to the effect that P's body F
was mutilated using the chopper (M.0.4). The said chopper
was recovered from the lake on the basis of such
disclosure statement made by the appellant as he had
exclusive knowledge as regards the place of concealment.
Recovery of the said chopper at the behest of the appellant G
cannot be doubted. [Para 10J [1191-B-C, DJ
1.3. The chopper (M.0.4) was recovered by a Scientific
Assistant, who deposed that the. chopper had blood
stains and hair stuck on it. PW. 71, a Forensic Surgeon
H
1176 SUPREME COURT REPORTS [2013] 3 S.C.R.
A 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 'P'
(deceased) is concerned, the same was also made on the
basis of the disclosure statement of the appellant. A glove
B 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. [Para 11] [1191-E-F, G]
2.1. Statements under Section 161 Cr.P.C. can be
C used only for the purpose of contradiction and
statements under Section 164 CrPC can be used for both
corroboration and contradiction. [Para 14] [1193-D]
2.2. So far as the statement of witnesses recorded
D 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. [Para 15]
E [1193-F-G]
Jogendra Nahak & Ors. v. State of Orissa & Ors. AIR
1999 SC 2565: 1999 (1) Suppl. SCR 39; Assistant Collector
of Central Excise, Rajamundry v. Duncan Agro Industries Ltd
& Ors. AIR 2000 SC 2901: 2000 (2) Suppl. SCR 162; Ram
F Charan & Ors. v. The State of U.P. AIR 1968 SC 1270: 1958
SCR 354 and Dhanabal & Anr. v. State of Tamil Nadu AIR
1980 SC 628: 1980 (2) SCR 754 - relied on.
Mamand v. Emperor AIR 1946 PC 45; Bhuboni Sahu v.
G King AIR 1949 PC 257 - referred to.
3.1. Once a recovery is made in pursuance of a
disclosure statement made by the accused, the matching
or non-matching of blood group (s) loses significance.
H [Para 17] [1194-H; 1195-A]
R. SHAJI v. STATE OF KERALA 1177
3.2. No advantage can be conferred upon the A
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. [Para 18]
[1195-C-D] B
Prabhu Babaji Navie v. State of Bombay AIR 1956 SC
51; Raghav Prapanna Tripathi v. State of UP. AIR 1963 SC
74: 1963 SCR 239; State of Rajasthan v. Teja Ram AIR 1999
SC 1776: 1999 (2) SCR 29; Gura Singh v. State of Rajasthan C
AIR 2001 SC 330: 2000 (5) Suppl. SCR 408; 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 - relied on.
4. In a case of circumstantial evidence, motive may D
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. However, the absence of motive in a case
depending entirely on circumstantial evidence, is a factor E
that weighs in favour of the accused as it "often forms the
fulcrum of the prosecution story". [Para 19] [1195-E-G]
Babu v. State of Kera/a (2010) 9 SCC 189: 2010 (9) SCR
1039; Kulvinder Singh & Anr. v. State of Haryana AIR 2i>11
SC 1777: 2011 (4) SCR 817 and Dandu Jaggaraju v. State F
of A.P. AIR 2011 SC 3387: 2011 SCR 342 - relied on.
5. In the instant case, the evidence on record clearly
established, that the appellant had adequate reason to
harbour animosity towards 'P', as he may well have been G
unable to tolerate the intimacy that the deceased had
developed with his wife. [Para 20] [1195-H; 1196-A]
6. In the matter of appreciation of evidence of
witnesses, it is not the number of witnes.ses, but the
H
1178 SUPREME COURT REPORTS [2013] 3 S.C.R.
A 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
B counted. The test is whether the evidence has a ring of
truth, is cogent, credible and trustworthy, or otherwise.
It is the quality and not quantity, which determines the
adequacy of evidence, as has been provided by Section
134 of the Evidence Act. [Para 22] [1197-E-G]
c 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: 2003
(4) Suppl. SCR 767; Namdeo v. State of Maharashtra AIR
2007 SC (Supp) 100; Kunju @ Balachandran v. State of
D Tamil Nadu AIR 2008 SC 1381: 2008 (1) SCR 781; Bipin
Kumar Monda/ v. State of West Bengal AIR 2010 SC 3638:
2010 (8) SCR 1036; Mahesh & Anr. v. State of Madhya
Pradesh (2011) 9 SCC 626 and Kish an Chand v. State of
Haryana JT 2013(1) SC 222 - relied on.
E
7. 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
F 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. [Para 23] [1198-C-D]
G Sharad Birdhichand Sarda v. State of Maharashtra AIR
1984 SC 1622: 1985 (1) SCR 88; Paramjeet Singh @
Pamma v. State of Uttarakhand AIR 2011 SC 200: 2010 (11)
SCR 1064 - relied on.
H 8. A criminal conspiracy is generally hatched in
R. SHAJI v. STATE OF KERALA 1179
secrecy, owing to which, direct evidence is difficult to A
obtain. The offence can therefore be proved, either by
adducing circumstantial evidence, or by way of necessary
implication. However, in the event that the circumstantlal
evidence is incomplete or vague, it becomes necessary
for the prosecution to provide adequate proof regarding B
the meeting of minds, which is essential in order to hatch
a criminal conspiracy, by adducing substantive evidence
in court. 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. [Para 31) c
[1203-F-H; 1204-A-B]
Mir Nagvi Askari v. CBI AIR 2010 SC 528: 2009 (13)
SCR 124; Ba/dev Singh v. State of Punjab AIR 2009 SC
Supp. 1629: 2009 (7) SCR 855; State of MP. v. Sheet/a
Sahai AIR 2009 SC Supp. 1744:; R. Venkatkrishnan v. CBI D
AIR 2010 SC 1812: 2009 (12) SCR 762; S. Arul Raja v. State
of T.N. (2010) 8 SCC 233; Monica Bedi v. State of A.P. (2011)
1 SCC 284: 2010 (13) SCR 522 and Sushi/ Suri v. CBI AIR
2011 SC 1713: 2011 (8) SCR 1 - relied on.
E
9. It cannot be said 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, for the reason that the law does not F
prohibit taking into consideration even the evidence
provided by an accomplice, who has not been put to trial.
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 G
evidence reliable, and conviction can also safely be
based upon it. However, such evidence is required to be
considered with care and caution. [Para 32) [1204-C-F]
Laxmipat Choraria & Ors. v. State of Maharashtra AIR
1968 SC 938: 1968 SCR 624; Chandran alias Manichan H
1180 SUPREME COURT REPORTS [2013] 3 S.C.R
A alias Maniyan & Ors. v. State of Kera/a AIR 2011 SC 1594:
2011 (8) SCR 273 and Prithipal Singh & Ors. v. State of
Punjab & Anr. (2012) 1 SCC 10: 2012 (14) SCR 862 - relied
on.
10.1. The evidence from a test identification parade
B is admissible under Section 9 of the Evidence Act, 1872.
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
C 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 it he has
been exposed by the media to the public. [Para 33] [1205-
B-E]
10.2. In the instant case, the witnesses, particularly
PW.8, PW.9, PW.11 and 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
L 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. Moreover, the defence did
not put any question to PW.77, the investigating officer
in relation to why such Tl Parade was not held. (Para 34]
["1205-F-G]
Vijay@ Chinee v. State of MP. (2010) 8 SCC 191: 2010
(8) SCR 1150; Santokh Singh v. lzhar Hussain & Anr. AIR
G 1973 SC 2190: 1974 (1) SCR 78; State of Himachal Pradesh
v. Lekh Raj & Anr. AIR 1999 SC 3916: 1999 (4) Suppl. SCR
286; Ma/khan Singh & Ors. v. State of MP. AIR 2003 SC
2669: 2003 (1) Suppl. SCR 443 and Munna Kumar
Upadhyay v. State of A.P. AIR 2012 SC 2470: 2012 (6) SCC
H 174 ··-relied on.
R. SHAJI v. STATE OF KERALA 1181
11. The prime witness of the prosecution has no doubt A
been 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. There is no cogent reason to disbelieve the
testimony of PW12 in toto. [Para 35] [1205-H; 1206-A-B, C] B
Case Law Reference:
1999 (1) Suppl. SCR 39 relied on Para 15
2000 (2) Suppl. SCR 162 relied on Para 15
c
AIR 1946 PC 45 referred to Para 16
AIR 1949 PC 257 referred to Para 16
1968 SCR 354 relied on Para 16
D
1980 (2) SCR 754 relied on Para 16
AIR 1956 SC 51 relied on Para 17
1963 SCR 239 relied on Para 17
1999 (2) SCR 29 relied on Para 17 E
2000 (5) Suppl. SCR 408 relied on Para17
(2010) 14 sec 129 relied on Para 17
JT 2012 (8) SC 639 relied on Para 17 F
2010 (9) SCR 1039 relied on Para 19
2011 (4) SCR 817 relied on Para 19
2011 SCR 342 relied on Para 19
G
AIR 1957 SC 614 relied on Para 22
AIR 1994 SC 1251 relied on Para 22
2003 (4) Suppl. SCR 767 relied on Para 22
H
1182 SUPREME COURT REPORTS [2013] 3 S.C.R.
A AIR 2007 SC (Supp) 100 relied on Para 22
2008 (1) SCR 781 relied on Para 22
2010 (8) SCR 1036 relied on Para 22
(2011) 9 sec 626 relied on Para 22
8
JT 2013(1) SC 222 relied on Para 22
1985 (1) SCR 88 relied on Para 23
2010 (11) SCR 1064 relied on Para 23
c 2009 (13) SCR 124 relied on Para 31
2009 (7) SCR 855 relied on Para 31
AIR 2009 SC Supp. 1744 relied on Para 31
D 2009 (12) SCR 762 relied on Para 31
(2010) s sec 233 relied on Para 31
2010 (13) SCR 522 relied on Para 31
E 2011 (8) SCR 1 relied on Para 31
1968 SCR 624 relied on Para 32
2011 (8) SCR 273 relied on Para 32
2012 (14) SCR 862 relied on Para 32
F
2010 (8) SCR 1150 relied on Para 33
1974 (1) SCR 78 relied on Para 33
1999 (4) Suppl. SCR 286 relied on Para 33
G 2003 (1) Suppl. SCR 443 relied on Para 33
2012 (6) sec 114 relied on Para 33
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1774 of 2010.
H
R. SHAJI v. STATE OF KERALA 1183
From the Judgment & Order dated 10.12.2009 of the High A
Court of Kerala at Ernakulam in Crl. A.No. 86 of 2006.
Dr. S. Gopakumaran Nair, T.G. Naray~nan Nair, K.N.
Madhusoodhanan for
. ttie Appellant.
.
R. Basanth, Ramesh Babu M.R., Karthik Ashok, P.V. B
Dinesh for the Respondent.
The Judgment of the Court was delivered by
DR. B.S: CHAUHAN, J. 1. This appeal has been preferred C
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.
D
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 Malappuram, and his wife was living at Palluruthy, E
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 F
the situation from Praveen and others, an!l 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 G
at Ettumanoor, as a driver.
8. 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 H
1184 SUPREME COURT REPORTS (2013] 3 S.C.R.
A 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
B 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 to his
own house, whilst informing everybody, that his mother was
seriously ill. The appellant asked N. Sahadevan, PW.2's father,
C 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
D 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
E 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 213 days that it was not safe for him to stay in hospital
F 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 ofVinu (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
G (A-2), stopped 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'.
H
R. SHAJI v. STATE OF KERALA 1185
[DR. B.S. CHAUHAN, J.]
Mohammed Sherif@ Monai (PW.13), who was the owner of A
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 8
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 C
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. D
The motor bike also started. He noted the registration number
of the van, and also that of the motor bike.
G. Mohan an (PW.10), another auto rickshaw driver saw
the Maruti Van parked on the road and a person standing near E
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 F
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.
G
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. H
1186 SUPREME COURT REPORTS (2013] 3 S.C.R.
A 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
B being conducted, a pair of hands was seen floating in the lake.
K.M. Antony (PW.17) recovered the same and conducted
inquest. Pavithran (PW.1) identified the hands to be those of
Praveen as well.
C 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,
D 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.0.4), alleged to have been used in
E the said crime was recovered at the instance of the appellant.
A Maruti Van (M.0.5) was also recovered after information was
furnished by the appellant (A-1), to the effect that the said Maruti
Van had also been used.
F 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 Vi nu (A-2), as all the others were
absconding. Subsequent to the trial of this case, A-3 and A-4
G 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-
H
R. SHAJI v. STATE OF KERALA 1187
[DR. B.S. CHAUHAN, J.]
B of the IPC, and was awarded a sentence of life imprisonment A
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 8 ·
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 C
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.
N. Aggrieved, both of them preferred Criminal.Appeal No.
86 of 2006, which was dismissed by the High Court vide D
judgment and order dated 10.12.2009.
Hence, this appeal.
3. Sh~i 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 E
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 F
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 G
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 others including Praveen · H
1188 SUPREME COURT REPORTS [2013] 3 S.C.R
A (deceased), only for a brief moment and thus, was unablu 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
s 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 O" different dates and by such time the skin
would have ois-integrated entirely. Neither Vijayamma nor
Radharima were examined. Aji, who had disclosed information
c 'lertaining 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
D 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
E appearing for the State has opposed the appeal, contending
that the various 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). Tl'e
DNA test established that the different parts of the body that
F
were recovered from the lake were in fact, those of Praveer
There was no reason for the prosecution witnesses, particular!•;
Jose (PW.8), Mohanan (PW.10), Shanavas (PW.12) and
Mohamamed Sherif @ Monai (PW.13), to depose against the
G 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 (J.:.ceaseJ). Therefore, holding a Tl Parade
would have been a mere formality. Though, Mohanan (PW.10)
and Shanavas (PW.12), the auto rickshaw drivers, were ch<•r11ce
H
R. SHAJI v. STATE OF KERALA 1189
[DR. B.S. CHAUHAN, J.]
witnesses, their presence cannot be doubted as 1t is an A
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 B
driver, even if he 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 C
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 D
(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: E
"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 F
lake and compared with that of DNA of parents."
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:
G
"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 polir-
officer and unless and until some of the links we.,,
1190 SUPREME COURT REPORTS ·. [2013} 3;S.C.R.
. I.
,_- ...
A identified and located, nobody c0uld doubt his involvement. ·
·The.recovery witnesses have proved.the recoveries.:B.
Muraleedharan Nair (P.W;77), stated thatthe seizure was
at the behest of the appellant and the vehicle infact
recovered belonged to the brother-in-law of Babu (PW.6)
8 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 thatthe appellant
·had come to him on 15.2.2005 anc! told the said. witness
c 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 aliowed by Babu (PW.6) after taking·the
..•c<insent cif the owner and the w.itness further disclosed that
D · · .··•· the,vari was brought back by the appellant afledew 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.· .
..· 8. ulldoubt~dly, the van was returned on 1S.2.2005 and
E 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 cif the.said vehicle and also some ti air; The
hair and blood stains recovered during the investigation, were
r F compared with the hair collected by the SCientific Officer from
the deceased, whi~ established that the said hair did in fact,
belong to Pravee(\ (deceased), arid thus, the use of the said
vehicle· in the crim~stood proved. The recovery of the van was
in ac:cOrdani:e wi.ltt the provisions of Section 27 of the Indian
Evidence Act, 1872 (hereinafter referred to as the 'Evidence'
G Act'), and ea the same was.done at the behest of the appellant,
his OJnduct was relevant under Section 8 of the Evidence Act.
. 9. The recovery of the chopper (M.0.4) stood proved as
the said chopper was crafted by Vijayakumar (PW.5), who
H deposed that appellant was familiar with him and that the
R. SHAJI v. STATE OF KERALA 1191
[DR. B.S. CHAUHAN, J.]
· appellant had given him a leaf plate for the purpose of making A
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.
10. As per the deposition of B. Muraleedharan Nair B
(PW.77), the appellant made a disclosure statement to the
effect that Praveen's body was mutilated using the chopper
(M.0.4). 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 C
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 D
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.0.4) 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. E
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 F
of the 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, G
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. H
1192 SUPREME COURT REPORTS [2013] 3 S.C.R.
A 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
B 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
c substantive evidence, could well be used for the purpose of
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
D 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
E 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
F 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
G 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
H Magistrate was not in detail. No question had been put
R. SHAJI .v. STATE OF KERALA 1193
[DR. B.S. CHAUHAN, J.]
to the witnesses whose statements had been recorded A
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 8
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 C
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 0
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
E
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 questions and obtain all possible information in
relation to the said case.
F
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 G
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.
H
1194 SUPREME COURT REPORTS [2013] 3 S.C.R.
A 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
B 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.
During the investigation, the Police Officer may sometimes
C 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
D 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
E 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
F 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
G a judicially conscientious mind may entertain with some
objectivity, no benefit can be claimed by the accused in this
regard.
Once the recovery is made in pursuance of a disclosure
H statement made by the accused, the matching or non-matching
R. SHAJI v. STATE OF KERALA 1195
[DR. B.S. CHAUHAN, J.]
of blood group (s) loses significance. (Vide : Prabhu Babaji A
Na vie v. State of Bombay, AIR 1956 SC 51; Raghav
Prapanna Tripathi v. State of UP., 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 B
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 c
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 D
the chain of circumstances may be presumed to be broken.
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 E
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 F
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 G
story". (Vide: Babu v. State of Kera/a, (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 H
1196 SUPREME COURT REPORTS [2013] 3 S.C.R.
A 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 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
B 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
C 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.
D 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,
E 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 annihilate Praveen
(deceased). It is further urged that Praveen (deceased) had in
F 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
G 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
H appellant from his first wife, did not support the case of the
R. SHAJI v. STATE OF KERALA 1197
[DR. B.S. CHAUHAN, J.]
prosecution. His statement is only to the effect that when the A
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 B
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.
21. Undoubtedly, in this case Aji, the Manager of the
appellant who had revealed the existence of the alleged C
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 o
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 E
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, F
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 G
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 MP. AIR 1994 SC 1251; Sunil Kumar v. State Govt.
H
1198 SUPREME COURT REPORTS [2013] 3 S.C.R.
A 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 Monda! v. State of West Bengal AIR 2010 SC
3638; Mahesh & Anr. v. State of Madhya Pradesh (2011) 9
B 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
c 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
0 be brought to notice, only to lend assurance to the Court as
regards the various links in the chain of 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
E 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,
F 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 @ Pam ma v. State of
Uttarakhand, AIR 2011 SC 200).
G 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
H the night. He deposed that on 15.2.2005 at 8.30 p.m., Pravepn
R. SHAJI v. STATE OF KERALA 1199
[DR. B.S. CHAUHAN, J.]'
(deceased} came with Vinu (A-2) to his shop, and that the two, A
after their meal, left for the theatre, on a motor cycle. At 11.45
p.m., the appellant and 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 B
left after watching the movie, the witness saw Vinu (A-2) and
Praveen on !tie 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 c
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 D
minutes. During this cross-examination on behalf of A-2, the
said witness ;;ilso 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.
E
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 about 8.30 p.m. and that A-2 had F
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 G
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 inan was H
1200 SUPREME COURT REPORTS [2013) 3 S.C.R.
A 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 M0.5. During cross-
examination on behalf of appellant (A-1 ), the witness deposed
B 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 Vi nu (A-2). He deposed thathe had
first seen them on 15th February 2005 while he was proceeding
C in his auto from Baker 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
.D 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 tfie 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
E 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
F and Praveen came to his petty shop from the Arcadia Bar
premises, on a red coloured bike. Jose (PWS), an employee
of PW13 was previously acquainted with the aecused (A-2) and
Praveen (deceased), and hence, PWS introduced them as his
friends. He further deposed that the Omni Van arrived in front
G of the Arcadia Bar at 11.30 pm: A 1 got out of the driver seat
and proceeded to the theatre. The three.other persons came
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,.
H A-2 signaled to A-1 to follow him and rode in the direction of
R. SHAJI v. STATE OF KERALA 1201
[DR. B.S. CHAUHAN, J.]
Thirunakkara. The van followed the bike and they headed to A
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 A 1
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 B
A 1's friends, or the place to which A 1 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.l.s such as Satheesan and C
Suseelan, and that tfley were also from the West Police Station.
He further said that he knew of A 1 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 D
business from 8.00 p.m. to 1.30 a.m.
29. Reji (PW11) deposed that on 15.2.200.5 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 E
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 F
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 G
(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, H
1202 SUPREME COURT REPORTS [2013] 3 S.C.R.
A the incident became the talk of the town and the same was high-
Jigflted by both, the print and the electronic media.
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
B the identification of his body and its parts thereof, as has been
referred to hereinabove. The recoveries of a shirt (M0.1 ),
underwear (MO .2) and of a watch (M0.3), 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
c 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
D chopper (M0.4), 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
E 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 appellant has even admitted so. Praveen
F (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 Kotlayam, revealed that he was the man who had
G 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
H
R. SHAJI v. STATE OF KERALA 1203
[DR. B.S. CHAUHAN, J.]
Vinu (A-2) or Praveen (deceased) but he did in fact, have an A
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 (M0.5) from him on the afternoon of 15.2.2005,
and had returned the same to him on the afternoon of 8
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 that the said van was used in the crime by the C
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 D
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 ), Vi nu (A-2),
and Praveen (deceased) by way of photographs. He stated that
E
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, F
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 G
proof regarding the meeting of minds, 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
H
1204 SUPREME COURT REPORTS [2013] 3 S.C.R
A 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;
B Ba!dev Singh v. State of Punjab, AIR 2009 SC Supp. 1629;
State of M.P. v. Sheet/a Sahai, AIR 2009 SC Supp. 1744; R.
Venkatkrishnan v. CBI, AIR 2010 SC 1812; S. Arul Raja v.
State of TN, (2010) 8 SCC 233; Monica Bedi v. State of A.P.,
(2011) 1 SCC 284; and Sushi/ Suri v. CBI, AIR 2011 SC
1713).
c
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
D 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 into consideration even the evidence provided
by an accomplice, who has not been put to trial.
E
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
F 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:
G Laxmipat Choraria & Ors. v. State of Maharashtra, AIR 1968
SC 938; Chandran alias Manichan alias Maniyan & Ors. v.
State of Kera/a, AIR 2011 SC 1594; and Prithipa/ Singh & Ors.
v. State of Punjab & Anr., (2012) 1 SCC 10).
33. It has further been submitted that the prosecution failed
H to hold the test identification parade. Therefore, the prosecution
R. SHAJI v. STATE OF KERALA 1205
[DR. B.S. CHAUHAN, J.]
case itself becomes doubtful. A
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
identification parade, placed very heavy reliance upon the
judgments of this Court in Santokh Singh v. lzhar Hussain &
Anr, AIR 1973 SC 2190; State of Himachal Pradesh v. Lekh B
Raj & Anr., AIR 1999 SC 3916; and Ma/khan 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 c
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 o
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
E
proper manner and with proper direction. (See also: Munna
Kumar Upadhyay v. State of A.P., AIR 2012 SC 2470)._
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 F
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/ G
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 Tl Parade was not held.
35. The prime witness of the prosecution has no doubt H
1206 SUPREME COURT REPORTS [2013) 3 S.C.R.
A 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:
B "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 at/east his evidence as regards the act
of accused nos. 1 and 2 and others in forcing a person
c 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 wilnl:lss speaks under oath, after he understands
D the sanctity of the oath taken by him either in the name of God
or religion, ii 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.
E 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.
F 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
G circumstances which completed the chain, rendering the
accused liable for punishment could have been put together,
to facilitate better understanding of the judgment.
B.B.B. Appeal dismissed.
H
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