Jithesh vs The State Of Kerala

This batch of criminal appeals and a revision petition arise out of the

judgment in S.C.No.550 of 2013 on the file of the Additional Sessions

Court-VI, Thiruvananthapuram. Six accused persons were charge-sheeted

for offences punishable under Sections 120B, 396, 302, 201, 328, 465 and

471 read with Section 34 of the Indian Penal Code, 1860 (in short, "IPC").

After examining 72 witnesses on the prosecution side and eight witnesses

on the defence side and also after considering 244 documents exhibited

for the prosecution, 25 documents for the defence, X1 series court exhibits

and 143 material objects, the trial court came to a conclusion that the

accused 1 to 5 are guilty of criminal conspiracy for committing murder,

dacoity, forgery, using as genuine a forged document which is known to be

forged, administering a stupefying drug on the deceased with intent to

cause hurt and causing disappearance of evidence of the offence Crl.Appeal No.567 of 2014 and connected cases 13

committed. Apart from the above, they found to have committed grave

offences of murder and dacoity pursuant to the conspiracy hatched.

Imprisonment for life, other sentences for different terms and fine have

been imposed on them. 6th accused was found to be not guilty of any of the

offences alleged by the prosecution and he is acquitted under Section

235(1) of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C.").

2. For the sake of convenience, the appellants, who challenged

the conviction and sentence, are described hereunder in their respective

ranks before the trial court. 1st accused preferred Crl.Appeal No.567 of

2014 assailing the conviction and sentence. 2nd accused filed Crl.Appeal

No.1121 of 2015 disputing correctness of his conviction and sentence.

Similarly, Crl.Appeal No.576 of 2014 is filed by the 3rd accused, Crl.Appeal

No.665 of 2014 is filed by the 4th accused and Crl.Appeal No.800 of 2014 is

filed by the 5th accused. Crl.Appeal No.129 of 2016 is filed by the State,

challenging correctness of the acquittal of 6th accused. For the same

purpose, another appeal, bearing number Crl.Appeal (V) No.21 of 2019,

has been filed by a lady, who was examined as PW2 in the trial and who

claimed to be the wife of deceased Harihara Varma (in short "Varma",

hereafter). She filed the appeal under proviso to Section 372 read with

Section 2(wa) of Cr.P.C. Crl. Appeal No.609 of 2016 is filed under Section

454(1) Cr.P.C. by a third party claiming to be the wife of deceased Varma.

She is aggrieved by the direction in the trial court's judgment to handover

movable properties to PW2, including the precious stones, belonged to Crl.Appeal No.567 of 2014 and connected cases 14

Varma on a finding that she is his legally wedded wife.

3. Though the trial court found the accused 1 to 5 guilty of

murder under Section 302 IPC and also of dacoity with murder defined

under Section 396 IPC, it made an observation that there need be no

separate punishment under Section 302 read with Section 120B IPC. This

reasoning, according to a bench of this Court, which heard the appeals at

the time of admission, was clearly illegal. The bench observed that the trial

court ignored the fundamental principle that every conviction should be

followed by a sentence. No doubt, whether the convict should suffer the

sentence consecutively or concurrently is a matter to be judiciously

decided by the court. Hence this Court suo motu registered Crl.Revision

Case No.5 of 2016.

4. Heard Sri.B.Raman Pillai, learned senior counsel appearing

for accused 3 to 5, Sri.Sasthamangalam S.Ajithkumar, learned counsel

appearing for 1st accused, Sri.P.K.Varghese, learned counsel appearing for

2nd accused, Sri.R.Anil, learned counsel appearing for 6th accused,

Sri.P.Vijayabhanu, learned senior counsel appearing for appellant-victim

(PW2), Sri.C.S.Manu, learned counsel appearing for appellant in

Crl.Appeal No.609 of 2016 and Sri.P.K.Mohanan, learned counsel

appearing for 2nd respondent (PW2) in Crl.Appeal No.609 of 2016. Learned

Public Prosecutor Sri.Alex M.Thombra and Sri. S.U.Nazar are also heard.

Learned counsel on both sides submitted notes of arguments. We have

carefully perused the notes.

Crl.Appeal No.567 of 2014 and connected cases 15

5. Prosecution case, shortly put, is thus: Deceased Varma had

openly proclaimed that he was a member of Mavelikkara royal family and a

trust member of Poonjar Palace. He held out himself to be the authorized

person, by other family members, to deal with their ancestral properties.

He was in possession of high priced gems and precious stones belonged

to the family. According to the prosecution case, the precious stones and

gems were worth crores of rupees. It is alleged that the accused 1 to 5,

who came to know that deceased Varma was in possession of priceless

gems and precious stones, conspired to murder him and rob the gems.

Pursuant to a conspiracy, the 1st accused created a document by showing

false identity of PW21 with a photograph of CW53 and on their behalf, the

3rd accused obtained a mobile phone sim card bearing no.7411790579,

which was used by the 1st accused. Accused 2 and 3 used a mobile phone,

bearing no.9961930763, which was originally issued to PW13. Later, he

had lost the sim card. It is further alleged that the accused 1 and 2

purchased a mobile handset from PW15's shop on 04.11.2012.

Prosecution has a further case that the 1 st accused had previous

acquaintance with deceased Varma and 6th accused. When contacted,

PW12 evinced genuine interest in finding out intending purchasers for

precious stones and gems, therefore the 1st accused introduced PW12 to

the deceased. Later, there arose some disputes regarding purity of the

gems and PW12 backed out from the deal. By that time, he had spent a

considerable amount in furtherance of the deal. It is the prosecution case Crl.Appeal No.567 of 2014 and connected cases 16

that PW12 demanded from the 1st accused the money that he had spent.

Thereafter, 1st accused along with other accused, as part of their

conspiracy, made preparations for murdering Varma and robbing the

precious stones. After purchasing a mobile handset from PW15, the

accused contacted the deceased, in the pretext as purchasers, by using

false names. As part of their conspiracy, 1st accused took a house,

"Smayana", on lease as per Ext.P31 deed at Illikkapady, Eroor on

22.10.2012. Along with some of the accused persons, PWs 10 and 11

resided in the said house. On 24.12.2012, the accused persons contacted

the deceased. On the same day, at 11.15 a.m., the accused 2, 3 and 5

reached near KSEB Office, Vattiyoorkavu as informed. Deceased came to

the informed place in a car belonging to and driven by the 6 th accused. 5th

accused was introduced to the deceased as the son of a Minister in

Karnataka Government. Accused 2, 3, 5 and 6 along with the deceased

went in the car to "Omkar", a house belonged to Haripriya, who is the

daughter of 6th accused. They sat down around a dining table in the house

to examine the gems. At that time, the 2nd accused offered Tropicana juice,

mixed clandestinely with alcohol, to the deceased. Thereafter, the accused

2, 3 and 5 left the dining hall pretending to smoke. Accused 1 and 4 were

waiting in the courtyard of the house. Prosecution mentioned in the final

report that the 4th accused entered the house at 1.00 p.m. He caught

Varma by neck from behind, closing his mouth. 5th accused caught hold of

both his hands and the 2nd accused put a cloth drenched in chloroform Crl.Appeal No.567 of 2014 and connected cases 17

covering his nostrils. 3rd accused silenced the 6th accused by threatening

him with dire consequences, if alarm was raised. 2 nd accused put a plaster

on the mouth of deceased and thereafter the 1st accused entered the

house. Accused 2 and 4 took Varma to nearby bed room, tied both his

hands by using a rope and the 2 nd accused throttled Varma between 1.00

and 1.20 p.m. He died due to smothering and strangulation. Afterwards,

the accused robbed the gems kept in various boxes, exhibited as material

objects (MOs) in the case. Prosecution contended that the 6 th accused also

became a consenting party to the crime and he fabricated evidence by

pretending that he was also disabled with plaster and rope. It is alleged

that the 6th accused handed over his mobile phone to the accused and

instructed them to put front door key of the house under his car, kept in the

porch. It is the allegation that the 6 th accused aided escape of other

accused persons by deliberately delaying to inform police about the crime.

At about 2 o' clock in the noon, the 6th accused went to the house of PW3

and called PW70, who is his son. He in turn informed police about robbery.

Accused persons later burnt mobile handsets containing sim cards bearing

nos. 7411790579 and 9961930763 used to contact the deceased and also

handsets containing nos.9447144431 and 9633254448 belonging to the 6th

accused and deceased Varma. Prosecution therefore contended that the

accused are liable to be punished for the offences alleged in the final

report.

6. After hearing both sides, trial court framed the following Crl.Appeal No.567 of 2014 and connected cases 18

charges:

"I, ............., Additional Sessions Judge, Fast Track Court III, Thiruvananthapuram do hereby charge you.

(Name and address of all the 6 accused persons) Firstly, That you, A1 agreed with A2 to A5 to murder deceased Harihara Varma and to rob diamonds and precious stones in his possession, and besides the said agreement, to accomplish the said object, you, A1 to A4, having seen the diamonds and precious stones, in different places, such as Dubai International Hotel, Thiruvananthapuram, Jas Hotel and Omkar House at Perrokada belonging to the daughter of A6, having convinced under the pretext to the deceased Harihara Varma, that the said invaluables will be sold through you, the 1st accused, on 22.10.2012, took a rented house at Eroor in Ernakulam, while CW12 and CW13 were residing there, A1 to A5 also having resided therein, contacted Harihara Varma from different places in Bangalore in fake names,over mobile phones obtained by illegal means, on 24-12-2012 at 11 a.m. A2, A3 and A5 having reached near K.S.E.B. office, Vattiyoorkavu, A2 and A3 introduced A5 as the son of a minister in Karnataka to Harihara Varma, A2, A3 and A5 along with A6 and Harihara Varma having reached the aforesaid Omkar House, by car with Registration No.KL 5 W 8998 owned by A6. A2, A3 and A5 along with A6 and Harihara Varma having assembled in the hall room in the ground floor of the said Omkar house, negotiated on the values of precious stones by perusing it, Crl.Appeal No.567 of 2014 and connected cases 19

caused the deceased Harihara Varma to believe that A2, A3 and A5 have been convinced of the values of precious stones and thereby you have committed criminal conspiracy for the commission of dacoity and murder, and thereby committed an offence punishable u/s.120B r/w 302 and 396 I.P.C.

Secondly, that you A1 along with A2 to A5, in furtherance of your common intention, forged a document by using the driving licence of CW10, pasting the photograph of CW53, and fraudulently used as genuine and thereby you, A1 to A5 committed an offence punishable u/s.465 and 471 r/w.34 I.P.C.

Thirdly, that you, A2, on 24-12-2012 at a time between 1 pm and 1.20 pm, along with A1 and A3 to A5, in furtherance of your common intention, caused the deceased Harihara Varma to consume liquor mixed with tropicanes grape juice, intoxicated and made Harihara Varma unconscious by applying chloroform and thereby facilitating commission of murder of Harihara Varma and thereby you, A1 to A5 committed an offence punishable u/s.328 r/w.34 I.P.C.

Fourthly, that you A6, on 24-12-2012 at a time between 1 pm and 1.20 pm agreed with A1 to A5 to murder deceased Harihara Varma and to rob the precious stones in his possession, in furtherance of your common intention, A4 caught hold of Harihara Varma around his neck with your left hand, closed his mouth with your right had, A5 caught hold of both the hands of the deceased, A2 pasted plastic tape around the mouth and head of Harihara Varma, A2 and A3 took the deceased to the cot in the bed room, A2 tied both the hands of Harihara Varma to his Crl.Appeal No.567 of 2014 and connected cases 20

back with strand rope, thereby suffocating and strangulating the deceased Harihara Varma, committed murder intentionally causing death of Harihara Varma and thereby you, A1 to A6 committed the offence punishable u/s.302 r/w.34 I.P.C.

Fifthly, that you, A6, on 24-12-2012 at a time between 1 pm and 1.20 pm, along with A1 to A5, in furtherance of your common intention, caused disappearance of the evidence by making it appear that you were also attacked, by causing your hands to be tied back, causing plaster to be pasted on your mouth, entrusting your mobile phone with the other accused, instructing the other accused to lock the door of Omkar house outside, putting the key under the car in the car- porch, without informing the police, deliberately causing delay and allowing the accused A1 to A5 to escape and thereby you, A1 to A6 committed an offence punishable u/s. 201 r/w 34 I.P.C.

Sixthly, that you A1 along with A2 to A5, caused disappearance of evidence by burning, three mobile phones with sim cards, which you used for committing the offences, two mobile phones with sim cards you obtained from A6, one mobile phone with sim card belonged to deceased Harihara Varma by dousing petrol, in the 1 st floor of Manthanath house, in Ponnethu lane, in Ernakulam, wherein A1 was residing, and thereby you, A1 to A5 committed an offence punishable u/s.201 r/w 34 I.P.C.

Seventhly, that you A1 on 24-12-2012 at a time between 1 pm and 1.20 pm conjointly with A2 to A6, robbed all the invaluable precious stones and other belongings of the deceased Harihara Varma and thereby Crl.Appeal No.567 of 2014 and connected cases 21

committed dacoity, and murder was committed, in so committing dacoity and thereby committed an offence punishable u/s.396 I.P.C and within my cognizance.

And I hereby direct that you be tried by this Court for the said charge.

Sd/-

Addl.Sessions Judge"

7. Framework of the prosecution case is unfolded through

testimonies of PWs 1 and 70 to 72.

8. PW70 is the son of 6th accused. PW70 deposed that at about

2.00 p.m. on 24.12.2012, he received a call from his father. He asked

PW70 to come over to "Omkar", which belonged to the daughter of 6 th

accused (sister of PW70). Immediately PW70 went on a motor bike and

reached at "Omkar" within five minutes. At that time, the 6th accused was

sitting on steps in front of the house. PW70 deposed that he found his

father in a state of utter shock and he was weary. 6 th accused informed

PW70 that three persons assaulted Varma and him. He demanded PW70

to inform the matter to police immediately. 6 th accused further instructed

PW70 to procure an ambulance. PW70 then asked where Varma was? At

that time, the 6th accused gestured that he was inside the house. On

seeing the front door locked, PW70 went inside through the back door,

opening to the kitchen, and when entered the dining room and then a bed

room, he found Varma lying on bed. PW70 tried to wake him up. But,

Varma did not respond. He came out and after giving some drinking water

to the 6th accused, he went to Vattiyoorkavu police station to reach there at Crl.Appeal No.567 of 2014 and connected cases 22

about 2.15 p.m. He met PW1, the Sub Inspector, and informed that three

persons had caused hurt to the 6th accused and Varma. After collecting

details from him, PW1 along with his police party came to "Omkar"

following PW70. Immediately an ambulance was called.

9. PW1 also supported this version of PW70. It is his deposition

that after confirming truth of the information furnished by PW70 and

procuring an ambulance service and thereafter confirming that Varma was

dead, PW1 came back to the police station and suo motu registered a

crime. First information statement is Ext.P1 and first information report is

Ext.P1(a). It is his version that a male nurse in the ambulance examined

Varma and found him dead. It was informed by the male nurse that 108

ambulance service carried only patients and never carried dead bodies.

Therefore, ambulance went back without removing body of the deceased

to a hospital. Thereafter, other high ranking police officers came to the

scene and investigation gained momentum.

10. PW71 started the investigation. He was the Circle Inspector of

Police, Peroorkada from 24.09.2012 to 31.01.2013. He took over

investigation on the date of occurrence itself, i.e., 24.12.2012. He reached

the place of occurrence at about 4.00 p.m.. He procured the presence of

Scientific Assistant, Forensic Science Laboratory (FSL), Scientific

Assistant, DCRB, Thiruvananthapuram (PW48) and Finger Print Expert

(PW38). Besides, he brought a police photographer (PW39) too. After

PW48 had collected evidence from the dead body and scene of Crl.Appeal No.567 of 2014 and connected cases 23

occurrence, PW71 caused collection of chance finger prints through PW38

from various parts of the house. Thereafter, police photographer took

numerous photographs of the body and scene. Then PW71 prepared an

inquest report (Ext.P23) in the presence of witnesses. Dress materials and

poonul (sacred thread) and other articles seen on the body were recovered

at the time of inquest. All the items recovered were properly packed and

sealed. MOs 2 to 28 recovered as per Ext.P23 inquest report are identified

by PW71. Property list evidencing production of these items before the

court is marked as Exts.P175 and P176. Ext.P99 is the scene examination

report furnished by PW48 after inspecting the dead body and place of

occurrence. As per Ext.P99, 12 items of cellophane impressions were

taken from the dead body. They are marked as MOs 125, 126, 127, 128,

129, 130, 131, 132, 133, 134 and 135. Even though the 6 th accused

informed PW71 that the assailants administered chloroform to deceased

Varma and himself and they muffled them by using plaster, after tying their

hands behind, PW71 did not believe the statements of the 6th accused

mainly because there was no sign on his body of fixing a plaster or tying

his hands with a rope. Further, being an advocate, he should have

informed police promptly and his behaviour was unnatural. It was also

revealed in the course of investigation that he delayed furnishing any

information to police. He called his son (PW70) and through him only the

incident was informed to police. It was doubted that he might have

facilitated escape of the other accused. All these actions on the part of the Crl.Appeal No.567 of 2014 and connected cases 24

6th accused evoked suspicion in the mind of the investigating officer. It is

deposed to by PW71 that the 6th accused was sent to Medical College

Hospital, Thiruvananthapuram accompanied by a police constable to find

out whether he had suffered any injury in the incident. 6 th accused informed

the doctor that he had not suffered any injury and refused to subject

himself to a medical examination. He did not even afford an opportunity to

find out whether his saliva or other body secretions showed any traces of

chloroform. Even though the 6th accused was later taken to the Department

of Forensic Medicine, he could not be examined for want of time. A report

submitted by police constable to that effect to PW71 is Ext.P177. Along

with Ext.P177, an out patient ticket issued from Medical College Hospital,

Thiruvananthapuram, pertaining to the 6th accused, is also produced. That

is marked as Ext.P177(a), despite an objection raised by the defence.

Ext.P177(a) reveals the name and address of the 6 th accused. PW71

forwarded the dead body for postmortem examination to Medical College

Hospital, Thiruvananthapuram. PW69 then was Professor, Forensic

Medicine and Police Surgeon in the Medical College and he conducted

autopsy on the body of deceased Varma and issued Ext.P172 postmortem

certificate. In addition to the offences under Section 302 read with Section

34 IPC registered, PW71 submitted a report to the court concerned for

adding an offence under Section 394 IPC too. That report is Ext.P178.

Since the crime scene had to be examined in a great detail, PW71 posted

police constables including, PW49, on scene guard duty. Police dog was Crl.Appeal No.567 of 2014 and connected cases 25

also brought as part of the investigation. Sniffer dog had gone towards

Puthoorkonam and stopped by the side of an arch in front of

Puthoorkonam temple. On a detailed search in the house, PW71

recovered three gems from floor and further, a suitcase on the dining table.

Certain certificates and an album were found inside the suitcase. A conch,

electronic scale, etc. were recovered as per Ext.P30 mahazar. Material

objects recovered as per Ext.P30 have been identified by witnesses.

11. Subsequently PW71 questioned PWs 5,6 and 70 and others

and recorded their statements. Scalp hair, body hair and nail clippings of

the dead were handed over to PW71 by PW69 after postmortem

examination and they were recovered as per Ext.P101. Ext.P88 certificate

was also obtained by PW71. Then the 6th accused was taken to

Thiruvananthapuram airport and control room for showing CCTV footage

for identifying other accused. 6th accused plainly said that he could not

identify anyone. Subsequently, PW71 chanced upon a car driver, who was

examined as PW6, who said to have transported some of the accused to

Railway station, Thampanoor after the incident. He was also taken to the

control room for identifying CCTV footage on the next day of the incident.

In the footage, Tata Indica taxi car driven by PW6 was found stopping in

front of the Railway station and two persons were found alighting from the

car. He identified his car and identified the two persons as the passengers

who travelled in his vehicle on the previous day. 6 th accused's behaviour

raised serious suspicions in the mind of the investigating officer and that is Crl.Appeal No.567 of 2014 and connected cases 26

why later he was implicated in the case. Ext.P102 is the mahazar for taking

Tata Indica car driven by PW6 into custody. Thereafter, biological remnants

were collected from the car.

12. In the course of investigation, it was revealed that the two

accused persons, who travelled in the car driven by PW6, abandoned a

plastic carry bag on the side of a public road running through the backside

of Cotton Hill Pre-primary Teachers Training School, Thiruvananthapuram.

As informed, PW71 went to the place and recovered the plastic carry bag

containing four paper boxes with inscription "Tropicana juice" and a bottle

with a label 'Refresh liquid'. Two gloves and a towel were also kept in the

plastic carry bag. These items were identified by PW6 and other witnesses.

Ext.P25 is the mahazar. Various material objects recovered were also

identified by this witness.

13. PW71 went to the rented house, where deceased Varma

stayed with PW2. Search memorandum is Ext.P184 and search list is

Ext.P29. Certain stones and other materials were recovered in the search.

Ext.P186 is the report submitted by PW71 for removing Sub Inspector,

Vattiyoorkavu Police Station from the position as a complainant and adding

PW2 as the defacto complainant.

14. On further investigation, it was revealed that PW13 is the

subscriber of mobile phone no.9961930763 to which deceased Varma last

contacted. As part of investigation, it came out that calls were received by

Varma from nos.9961930763 and 7411790579. Prosecution would allege Crl.Appeal No.567 of 2014 and connected cases 27

that these numbers were used by the accused 1 and 2. Investigation by

PW71 revealed that PW13 had lost the sim card in the month of October

2012. Similarly, it came to light that mobile no.7411790579 stood in

PW21's name. PW71 went to Kolar in Karnataka in search of PW21. When

questioned, PW21 informed that he had not taken such a phone

connection. Further probe disclosed that PW21's ID was falsely created by

the accused 1 and 3 and they secured a sim card with the aforesaid

number. Deceased Varma was having another house at Yakkara Village in

Palakkad. That house was also searched and various articles shown in

Ext.P187 report have been recovered. Property list is Ext.P188. Some

gems and precious stones were also recovered, which were separately

packed and sealed. After collecting the gems and precious stones, PW71

kept them in safe custody and they were sent up in lots for testing by the

empowered officer, working in the Department of Mining and Geology.

Exts.P189 and P190 would reveal this fact.

15. PW71 deposed that on examination of the call details of

mobile phone no.9447972718 used by deceased Varma, it could be seen

that nos. 9961930763 and 7411790579, used by the accused, were

moving in the same direction at the same time and place. Along with them,

admitted phone number of the 1st accused, viz., 9946938127 was also in

the same location. On this basis, police started investigation against the 1 st

accused. It was revealed that the 1st accused was at Bangalore and

therefore PW71 with his police party went to Bangalore. On enquiry, it was Crl.Appeal No.567 of 2014 and connected cases 28

understood that the 1st accused was staying in Susheela Paying Guest

Accommodation. On reaching there, they found the accused 1 to 5

together in room no.116. In order to find out whether all the persons had

nexus to the crime, they were brought down to Thiruvananthapuram from

Bangalore on 04.01.2013. Accused 2 to 4 carried their bags when they

were taken to Thiruvananthapuram. On 05.01.2013, after reaching at

PW71's office, PWs 5 and 6 and the 6 th accused identified accused 1 to 5

by seeing them. When the accused were questioned, their involvement in

the crime was revealed and therefore at 3.55 p.m., their arrest was

recorded. Arrest memos of accused 1 to 5 are marked as Exts.P192, P113,

P194, P195 and P196. All the accused were identified by PW71 from the

dock.

16. PW71 deposed that in the body search of the 1 st accused, a

Nokia mobile phone bearing no.9946938127 was recovered. Other

valuable items searched out from the 1st accused are shown in Ext.P197

property list. Mobile phone recovered from the 1st accused is MO137.

Other material objects are MOs 138 to 140. PW71 has a case that large

items of gems and precious stones were recovered from the possession of

the 1st accused. We shall deal with each of them in the succeeding

paragraphs.

17. It is the case of PW71 that the 2 nd accused had produced a

bag for inspection, which contained the 2nd accused's dress materials and

a Nokia mobile phone (MO40) bearing no.8606516539. In addition to ATM Crl.Appeal No.567 of 2014 and connected cases 29

cards and currency notes, the 2nd accused had secreted certain precious

stones in his bag. All the precious stones (MO37 series and MO39 series)

along with other items are described in Ext.P198 property list.

18. Thereafter, body search and search of the 3 rd accused's bag

revealed his possession of mobile phone (MO52) bearing no.9995225462,

ATM card, PAN card, etc. 3rd accused's bag is marked as MO43. Apart

from his dress materials, MO50 series stones were found concealed in

MO49 white box kept in 3rd accused's bag. Property list showing the items

recovered from the 3rd accused is marked as Ext.P199.

19. Then, 4th accused's body and personal belongings were

searched. MO53 is the bag possessed by the 4th accused. Two mobile sim

cards bearing nos.9946349097 and 9902827088 were kept in one phone

by the 4th accused and the phone was recovered and marked as MO59. In

addition to his dress materials and other items, the 4 th accused's bag found

to contain gems and precious stones marked as MO61 series and MO63

series. Property list revealing recovery of these articles is marked as

Ext.P200.

20. Then body search of the 5th accused was conducted. Driving

licence and identity card issued by Oxford College of Engineering,

Bangalore and other documents were recovered from him. He was also

using a mobile phone, bearing no.9008446019. Property list revealing

recovery from him is marked as Ext.P204.

21. PW71 deposed that the precious stones, recovered from the Crl.Appeal No.567 of 2014 and connected cases 30

possession of all the accused, were kept in his custody as he had to obtain

certificates from the concerned authority in the Department of Mining and

Geology. Ext.P205 is the document revealing these aspects. Subsequently,

he filed Ext.P207 report for adding Sections 120B, 328 and 395 IPC and

for deleting Sections 394 and 34 IPC. PW71 further deposed that after

arresting the accused, their finger impressions were taken as required

under the Kerala Identification of Prisoners Act, 1963 and Rules

thereunder. Finger impressions were sent to the Finger Print Bureau for

comparison. On 06.01.2013, the accused persons were produced before

court with a remand report, which is marked as Ext.P208. Later, 6 th

accused was implicated in the case and he was arrested as per Ext.P209

arrest memo dated 06.01.2013. After complying with necessary formalities,

the investigating officer received the accused persons in police custody.

Thereafter on 09.01.2013, hair samples of accused 2 and 3 were collected.

Accused were identified through PW3. As confessed by the accused, they

were taken to Susheela Paying Guest Accommodation, Bangalore for

effecting recovery. Relevant pages of the registers and other documents

showing residence of some of the accused at Bangalore, maintained by

the Paying Guest Accommodation, were also recovered.

22. When 1st accused was questioned, he confessed that he had

secreted certain gems, precious stones and figurines in a house at

Ernakulam where he resided with his family. As handed over by the 1 st

accused, MO64 bag was recovered. Inside the bag, MO65 series to 68 Crl.Appeal No.567 of 2014 and connected cases 31

series, 71 series to 73 series, 75 series to 79 series, 81 series to 85 series,

87 series to 91 series, 93 series to 98 series, 101 series to 104 series, 106

series, 107 series, 109 series, 110 series and 115 series to 119 series

gems and stones, three Ganesh figurines (MO19 series) and MO20 green

stone bar were secreted. In addition to that, 8 coins and two metal bars

marked as MO121 series and MO122 series were also recovered from the

1st accused. An antique watch taken out from MO64 bag is marked as

MO21. 1st accused handed over a lease agreement (Ext.P76) to PW71

while in custody. All the gems and stones recovered from the 1 st accused

were also sent for analysis to the Department of Mining and Geology.

Property lists are Exts.P219 to P221. Ext.P222 report was filed by PW71

for adding an offence under Section 201 IPC in the charge. Thereafter the

investigation was handed over to PW72, then Assistant Commissioner of

Police, Crime Detachment, Thiruvananthapuram City Police. He took over

investigation on 31.01.2013.

23. Ext.P223(a) is the report submitted by PW72 informing the

court that he had taken over investigation. Gems sent for analysis to the

Geology lab were received back and produced before the court as per

Exts.P224 to P230 property lists. PW72 deposed that he conducted

investigation into the whereabouts of autorickshaw in which the accused

1, 4 and 5 left the scene for Thampanoor Railway station after the incident.

He found out the autorickshaw, bearing no.KL-01 BE 3128, used by the

accused for escaping from the place of occurrence. PW4 was identified to Crl.Appeal No.567 of 2014 and connected cases 32

be the owner cum driver of the autorickshaw. He was questioned. Ext.P231

is the forwarding note submitted by PW72 in respect of the properties

recovered by PW48 at the time of preparing Ext.P23 inquest report.

24. PW72 questioned PW29, who stayed in "Smayana" along with

the accused. PW72 gave a report to PW62 for registering a crime against

the accused for falsely creating documents with a view to obtain a sim

card. PW72 authorized PW50, then Grade A.S.I. in the Crime Branch CID,

to question PW12 and others residing in Kannur District. Thereafter PW50

submitted a report to PW72. It was understood that PW12 had come to

Thiruvananthapuram and stayed in Dubai International Hotel along with 1 st

accused and he had seen the gems and stones belonged to deceased

Varma in the presence of the 6th accused. Records kept in the hotel, where

PW12 stayed, were also collected from the receptionist (PW34). Ext.P53 is

the mahazar. He made arrangements for recording the statements of PWs

4 and 9 by a Magistrate under Section 164 Cr.P.C. He identified PW7, who

had seen deceased Varma, carrying a suitcase, boarding the 6th accused's

car. In the course of investigation, PW72 got information that many

persons had seen the gems and precious stones belonged to Varma from

Jas Hotel, Thiruvananthapuram in the presence of the 6 th accused. In this

connection PW33 was questioned.

25. PW72 got information that the accused 2, 3 and 5 had a short

conversation with deceased Varma on the fateful day in front of K.S.E.B.

Office, Vattiyoorkavu and thereafter all of them together went to "Omkar" in Crl.Appeal No.567 of 2014 and connected cases 33

the car driven by the 6th accused. In this connection PW8 was questioned.

Mobile phone no.9995725462, used by the 3rd accused was found to be

belonging to PW42, who is a relative of the 3 rd accused. He was also

questioned. It is the prosecution case that the 1 st accused obtained

chloroform from Sheeba Dental Clinic, Peralassery, Kannur run by PW14,

a dentist. PW50 was deputed to question PW14. He prepared a mahazar

from PW14's clinic.

26. After that, on the basis of the 2nd accused's disclosure

statement, PW72 went to Sani Stores, Ernakulam and obtained a sample

rope as per Ext.P51 mahazar. Again, PW72 purchased adhesive plaster

as informed by the 2nd accused from Mampilly Dispensary, Ernakulam.

27. During investigation, it was revealed that accused 1 and 3 had

misrepresented facts to PW9 and got a false ID proof prepared by him for

securing mobile phone no.7411790579. Also, PW9 was prompted to send

photos of the gems to various persons from his e-mail ID. When this fact

was revealed, PW9 was called to the Office of Circle Inspector of Police,

Peroorkada and thoroughly questioned. Thereafter, he was taken to

Megabites Internet Cafe and his e-mail account was opened to find that

messages had been sent to e-mail ID of the 3 rd accused. Screen shots

were taken. Ext.P5 is the mahazar signed by PW72 and witnesses. Ext.P6

series are the print out of the image shots. Exts.P5 and P6 series are

seriously disputed by the defence, but they are supported by PW9 very

well. According to PW72, he and witnesses have signed all the pages in Crl.Appeal No.567 of 2014 and connected cases 34

Ext.P6 series. It came to the notice of PW72 that the accused had

purchased a phone from Doha Mobile run by PW15 and he was

questioned. PW72 collected academic certificates of accused 3 to 5 from

their respective institutions. Similarly, he had secured copies of the

attendance register and studentship certificate. Ext.P10 mahazar is also

proved by him. It is deposed by PW72 that Ext.P11 series attendance

register pertaining to the 3rd accused would show that he was absent from

college from 18.12.2012 to 28.12.2012. Similarly, 4 th accused too was

absent from college from 2012 January onwards as revealed from

Ext.P112 series. Ext.P113 series would show that the 5 th accused had not

attended college after August 2012.

28. Later, PW72 questioned PW36, who sent a report from the

Department of Mining and Geology Lab after examining the gems.

Besides, PW72 took steps to record statements of PWs 12 and 28 under

Section 164 Cr.P.C. PW72 questioned PW33, who examined the 6 th

accused from the Department of Forensic Medicine. PW72 asserted that

the accused had fraudulently obtained mobile phone no.7411790579.

Photo submitted along with the application for issuance of the sim card

was found to be that of one Venugopalan, a native of Kannur and a relative

of PW41. Original account opening form, kept in Canara Bank, Chirakkal

branch, was examined to find out the real identity of Venugopalan.

Ext.P115 is the mahazar revealing this fact. PW72 deposed that

documents pertaining to the mobile phone, used by the accused and Crl.Appeal No.567 of 2014 and connected cases 35

submitted by PW59, were seized as per Ext.P114. When it was understood

that application for issuing a mobile phone sim bearing no.7411790579

was actually filled up in the handwriting of the 3 rd accused, a report was

submitted before the court concerned for obtaining specimen handwriting

of the 3rd accused. As permitted by the court, handwriting of the 3rd accused

was taken from prison. Ext.P130 is the requisition for this purpose. Mobile

phone bearing no.9008446019 was used by the 5 th accused and its actual

subscriber was PW16. It was understood that PWs 10 and 11 stayed with

other accused at "Smayana", Illikkapady, Eroor. It came out that PW10 had

gone to meet Varma along with some of the accused. So, she was

thoroughly questioned. On investigation, PW72 realised that the 2nd

accused misled PW11 for transporting certain gems to Bangalore and

therefore, she was also questioned. PW72 got reliable information that

deceased Varma was married to PW2 from Velivilakom Temple, Vakkom

and relevant records were seized. PW72 understood that the accused had

fabricated ID proof by using driving licence issued to PW21 from Kolar

Assistant RTO, Karnataka. In the course of investigation, it came out that

the 2nd accused had transferred money to the account of PW11 for

transporting certain gems to Bangalore.

29. PW72 collected call data record (CDR) details from various

mobile phone service providers. He deputed PW52 and CW91 (members

of the special investigation team) to analyse the call data. They furnished a

mobile phone analysis report to PW72 and it was seized as per Ext.P125 Crl.Appeal No.567 of 2014 and connected cases 36

in the presence of PW50. Report seized as per Ext.P125 is marked as

Ext.P127. PW52 has signed the report. Thereafter, on closing the

investigation, a charge was filed as above. In the succeeding paragraphs

we shall examine in detail the oral and documentary evidence adduced to

substantiate the prosecution case.

30. Narration of the actual incident of dacoity and murder, as

mentioned in the final report, is thus:The incident occurred in "Omkar", a

house in Kerala Nagar Housing Colony, owned by one Haripriya, daughter

of the 6th accused. It was lying vacant at the material time. On the fateful

day, deceased Varma had gone to the house, in a car owned and driven by

the 6th accused, along with accused 2, 3 and 5. It is also alleged that

deceased Varma, as usual, carried a suitcase containing gems and

precious stones. Prosecution would allege that the accused 1 and 4 joined

the other accused subsequently. Further contention is that the accused 2, 3

and 5 had faked their identity. In the final report, the case is that after

seeing the gems and precious stones, accused 2, 3 and 5 served

Tropicana juice mixed with liquor to deceased Varma and 6 th accused.

Thereafter, accused 2, 3 and 5 went out of the room, under the guise to

smoke and came back along with 4th accused. Then time was about 1.00

p.m. While the 6th accused and deceased Varma were seated on chairs,

the 4th accused forcefully caught hold of deceased Varma from behind

around his neck and with the other hand, he closed the victim's mouth. A

piece of cloth wet in chloroform was forcefully pressed over his nose by the Crl.Appeal No.567 of 2014 and connected cases 37

2nd accused. 5th accused allegedly pressed hands of deceased Varma. At

that time, 1st accused came to dining hall and joined other accused. 6 th

accused was also assaulted in almost a similar fashion by the 3 rd accused.

After incapacitating Varma, he was carried to nearby bedroom and laid on

a cot. His hands were tied with a cotton rope. It is specifically contended

that plaster was put around the victim's mouth by 2 nd accused. 2nd accused

smothered and strangulated Varma to death. According to the prosecution,

threat to life and allurement to share the booty prompted the 6th accused to

consent to be a party to the crime as and when the criminal transaction

progressed. After the incident, accused 1 to 5 escaped from the house with

the precious stones and other valuables found in MO10 suitcase. It is the

case that the 6th accused facilitated their escape by delaying to furnish

information to police about the incident. It is clearly alleged that motive for

the incident was to rob the gems and other precious stones of incalculable

value from deceased Varma's possession, which according to the

deceased, belonged to 315 families. We are fully aware of the fact that this

case solely rests on circumstantial evidence, because the only person who

could have witnessed the criminal transaction, even according to the

prosecution, is the 6th accused. Since he is arraigned as an accused in this

case, it becomes the bounden duty of the prosecution to establish guilt of

the accused beyond reasonable doubt by placing all the material

circumstances, which should form an unbroken chain pointing only to the

guilt of the accused and by no reasoning their innocence should be Crl.Appeal No.567 of 2014 and connected cases 38

probable.

31. Strategy adopted by the accused persons at the trial is one of

total denial of their involvement. According to the accused persons, the

investigation was totally unfair. Without any reliable materials, they are

roped in this case.

32. As mentioned earlier, the accused 1 to 5 filed appeals

challenging conviction clamped on them. State and PW2 filed separate

appeals questioning acquittal of the 6th accused. There appears to be a

scramble between PW2 and a third party (who claims to be the wife of

Varma) for release of gems and stones involved in this case which resulted

in another appeal at the instance of the third party. Besides, the illegality

noticed by this Court in not awarding a sentence on the accused after

finding them guilty of murder resulted in initiating a suo motu revision.

33. Points commonly arising for consideration in the appeals are

thus:

I. What is the cause of death of Harihara Varma? Is it a case of

homicide?

II. Whether the accused 1 to 5 conspired to murder Harihara

Varma for robbing gems and precious stones as alleged by the

prosecution?

III. Whether the accused 2, 3 and 5 caused deceased Varma to

drink juice mixed with alcohol? Did they administer chloroform to stupefy

him?

Crl.Appeal No.567 of 2014 and connected cases 39

IV. Whether the accused forged documents in order to get a

mobile sim card as alleged?

V. Whether the accused used forged documents as genuine?

VI. Whether the accused caused disappearance of the evidence

of crime?

VII. Whether the accused persons are liable for dacoity with

murder and murder? If not, for any other offence?

VIII. Whether the court below correctly appreciated the facts and

circumstances borne out from evidence and also the legal principles while

entering a conviction and sentence on the accused?

IX. Whether the 6th accused caused disappearance of the

evidence of offences by sharing a common intention to screen accused 1

to 5?

X. Whether acquittal of the 6th accused is legally correct?

XI. Who is entitled to get an order for release of the gems and

precious stones involved in the case?

34. The sole point to be decided in the criminal revision is thus:

Whether decision of the court below is legally correct when it

imposed no sentence on accused 1 to 5 after finding them guilty of

murder?

Point I

35. Learned prosecutor contended that the defence cannot be

heard to say that death of Varma was not on account of any blunt force Crl.Appeal No.567 of 2014 and connected cases 40

applied while smothering and strangulating him. Learned senior counsel

appearing for accused 3 to 5 argued that the evidence on record,

especially the medical evidence tendered by PW69 Dr.N.A.Balaram, who

conducted autopsy and issued Ext.P172 postmortem certificate, is not at

all sufficient to make out an offence of murder. PW69 Dr.N.A.Balaram

proved the recitals in Ext.P172 postmortem certificate. Postmortem

certificate shows the following antemortem injuries on the body:

"INJURIES (ANTI-MORTEM) :-

1. Abraded contusion 2 x 0.4 x 0.2 cm, obliquely placed on right side of face, its inner lower end 1cm outer to ala of nose.

2. Abrasion 0.3 x 0.2 cm on the margin of right ala of nose, 0.5 cm above its attachment to face.

3. Contused abrasion 0.5 x 0.2 x 0.2 cm on right ala of nose, 1.5 cm above its lower margin, 2.5 cm outer to midline of top of nose.

4. Contused abrasion 0.4 x 0.4 x0.2 cm on right side of nose, 2.7 cm outer to midline of top of nose, 0.3 cm above injury no.(3).

5. Contusion 0.4 x 0.4 x 0.2 cm on right side of nose 2 cm outer to midline of top of nose, 0.5 cm above injury no.(4).

6. Contusion 0.3 x 0.3 x 0.2 cm on right side of nose 1cm outer to midline of top of nose, 1cm above injury no. (5).

7. Abrasion 0.3 x 0.2 cm on left side of nose 1.5 cm outer to midline of top of nose, 2 cm above margin of ala of nose.

Crl.Appeal No.567 of 2014 and connected cases 41

8. Superficial lacerated wound 0.4 x 0.1 cm on left side of nose 0.8 cm outer to midline of top of nose, 0.5 cm above injury no.(7).

9. Superficial lacerated wound 0.3 x 0.2 cm on left side of nose 0.5 cm outer to midline of top of nose, 0.5 cm above injury no.(8).

10. Abraded contusion 1 x 0.5 x 0.2 cm on right side of face, 5.5 cm outer to ala of nose.

11. Contusion 1.5 x 1 x 0.4 cm on right side of inner aspect of lower lip, 2 cm outer to midline.

12. Contusion 0.2 x 0.2 x 0.2 cm on right side of inner aspect of lower lip, 1.5 cm outer to midline.

13. Contusion 0.3 x 0.2 x 0.2 cm on inner aspect of lower lip, in midline.

14. Contusion 0.3 x 0.2 x 0.2 cm on left side of inner aspect of lower lip, 1 cm outer to midline.

15. Contusion 0.3 x 0.2 x 0.2 cm on right side of inner aspect of upper lip, 1 cm inner to angle of mouth.

16. Contusion 0.5 x 0.4 x 0.3 cm on right side of inner aspect of upper lip, 1.5 cm inner to angle of mouth.Pallor, 2.5 x 2 cm on chin across midline, 3.5 x 3 cm on tip and adjoining sides of nose, 3.5 x 2.5 cm on right side of face just outer to ala of nose, 3 x 3 cm on left side of face just outer to ala of nose.

17. Abrasion 1 x 0.3 cm, obliquely placed on right side of front of neck, its upper inner end 4.5 cm outer to midline, 3.5 cm below lower jaw margin. Flap dissection of neck was done in bloodless field. Subcutaneous tissues, showed contusion 9 x 3 x 1 cm on right side of front of neck, horizontally placed, its inner extent 2 cm outer to midline, 5 cm below lower jaw margin.

Crl.Appeal No.567 of 2014 and connected cases 42

Contusion 3 x 1 x 0.5 cm on the lower end of right sterno mastoid muscle just above its attachment. Contusion 2 x 1.5 x 0.5 cm of the subcutaneous tissues on left side of front of neck, 5 cm outer to midline, 7 cm below lower jaw margin. Contusion 2.5 x 2.5 cm involving its whole thickness, on lower part of left sterno mastoid muscle, 3 cm above its lower attachment. Fracture with infiltration of the left superior horn of thyroid cartilage. Contusion 4 x 5 x 0.8 cm on the upper part of front wall of esophagus, just below pharyx.

18. Contusion 1.5 x 0.3 x 0.3 cm on right side of forehead, obliquely placed, its outer lower end 1.5 cm outer to midline and at the upper margin of eyebrow." PW69 expressed a clear opinion on the cause of death of Varma that it

was due to the combined effect of smothering and a blunt injury sustained

to neck.

36. Ext.P23 inquest report is also relied on by the prosecutor to

argue that there are clear indications that the victim was smothered and

strangulated to death.

37. Learned senior counsel for accused 3 to 5 contended that no

attempt was made by the public prosecutor to elicit from PW69 the manner

in which the injuries noted on Ext.P172 could have been inflicted. It is

pointed out that no question was asked as to the substance/medium used

for smothering or causing a blunt force on the victim's neck. Although the

prosecution has a case that the victim's hands were tied behind his body

by using a cotton rope, no corresponding injuries were noted on Ext.P172. Crl.Appeal No.567 of 2014 and connected cases 43

Plaster, allegedly fixed for covering the victim's mouth, was also not noted

during preparation of Ext.P23 inquest report and Ext.P30 scene mahazar.

Albeit the omissions on the part of public prosecutor to elicit from PW69

the manner in which the victim could have been smothered or the medium

used for smothering, we do not find any reason to discard the reliable

testimony of PW69 in this regard, coupled with the entries in Ext.P172.

38. PW69 deposed in terms of Ext.P172. He categorically

deposed that injury nos. 1 to 16 could have been caused in an attempt to

smother the victim. Injury no.17 could have been caused as a result of a

blunt force applied on neck of the victim resulting in strangulation.

Haemorrhage on the inner aspect of the victim's scalp could be due to

asphyxiation.

39. This witness was subjected to searching cross-examination

separately by all the counsel appearing for the accused. There was a

serious attempt by the defence counsel at the time of cross-examining

PW69 to show that time of Varma's death pointed out by the prosecution

could be incorrect. This was argued on the basis of observations in

Ext.P172 regarding establishment and disappearance of rigor mortis on the

dead body. This contention shall be dealt with hereunder separately. On

scanning through the entire cross-examination on PW69, we find no

reason to discard the assertion by PW69 that Varma died due to

smothering and blunt force applied on his neck resulting in strangulation.

We see from the testimony of PW40, Joint Chemical Examiner, Chemical Crl.Appeal No.567 of 2014 and connected cases 44

Examiner's Laboratory, Thiruvananthapuram and Ext.P84 report of analysis

of the viscera and other body parts of deceased Varma that ethyl alcohol

and chloroform were detected in the examination suggesting smothering

and stupefaction. On an over all assessment of Exts.P23, P84 and P172

coupled with the oral evidence adduced by PWs 69 and 40, we enter a

definite finding that Harihara Varma was a victim of homicide. Point

decided accordingly.

Points II to VI

40. These points are considered together for conveniently

discussing the evidence on record and for attaining clarity in the findings.

41. Prosecution, in order to establish the above points, mainly

relied on the following aspects borne out from the evidence adduced:

i. Oral evidence of chance witnesses, who happened to

see the accused persons on the date of occurrence immediately prior to

and after the criminal transaction.

ii. Deceased was last seen in the company of accused 2,

3, 5 and 6.

iii. Evidence adduced to prove the preparations done by

accused for committing the offences.

iv. Evidence tendered by witnesses to prove a criminal

conspiracy hatched by the accused persons to commit the crimes.

v. Oral evidence adduced touching the conduct of the

accused after committing the crimes.

Crl.Appeal No.567 of 2014 and connected cases 45

vi. Call data records (CDR) to show that the accused were

moving together on the date of occurrence and their presence in and

around the scene of occurrence and at Thiruvananthapuram. This

assumes importance when the prosecution has raised an argument that

none among the accused 1 to 5 had any special reason to come to

Thiruvananthapuram on the date of occurrence.

vii. Obtainment of finger prints (chance prints) of the

accused 2 and 3 from the crime scene.

viii. Recovery of gems and precious stones from possession

of the accused 1 to 4.

42. Prosecution portrays the 1st accused as the kingpin in the

crime. Uncommonly, the 1st accused, after filing an application before the

trial court under Section 315 Cr.P.C. testified as DW2. He initially deposed

before the court that he developed acquaintance with deceased Varma

through PW12 Aboobacker Haji. But PW12 has a different version. He

stated that he was a real estate businessman hailing from Mattannoor in

Kannur District and was doing business at Sharja, UAE. He closely knew

CW18 Rafeeq. Pertinent fact is that Rafeeq was not examined before the

trial court. PW12 came back from Sharja and settled down at his native

place five years prior to his tendering evidence in the case. PW12 knew

CW18 Rafeeq after he settled down at his native place. Rafeeq was also a

real estate businessman. PW12 came into contact with deceased Varma

through Rafeeq. According to PW12, he had met deceased Varma five Crl.Appeal No.567 of 2014 and connected cases 46

times. Their first meeting was prior to 15.06.2012. Rafeeq introduced

deceased Varma to PW12 as a member of a royal family and an agent

authorized to sell gems and precious stones belonging to 315 families.

Rafeeq also told him that if priceless stones were sold, they could get a

decent money as commission. As PW12 knew many rich persons in UAE,

he expressed willingness to make a deal. According to PW12, he clarified

his position that the deal must be transparent. Further, he insisted that his

company established in Sharja should be properly authorized to complete

the transaction. In June 2012, PW12, Rafeeq (CW18) and the 1st accused,

who is a friend of Rafeeq, went to Thiruvananthapuram to meet deceased

Varma. Their first meeting was from Dubai International Hotel,

Thiruvananthapuram. PW12 knew from Rafeeq that the 1 st accused hails

from Tellicherry.

43. 1st accused later admitted that he established acquaintance

with deceased Varma through CW18 Rafeeq, deviating from his earlier

version. On the basis of this aspect in the evidence, learned prosecutor

argued that the 1st accused hatched a conspiracy to rob the gems and

precious stones when he knew for sure that PW12 had lost interest in the

deal for various reasons.

44. It is an admitted fact that the 3 rd accused is the cousin brother

of 1st accused. It has come out in evidence that the 1 st accused was

working in a shop owned by the 3rd accused's father. 2nd accused was a

worker in a bakery. Accused 3 to 5 were engineering students in a private Crl.Appeal No.567 of 2014 and connected cases 47

engineering college at Bangalore. Prosecution contended that the 1 st

accused instigated other accused to join him in committing the crime.

45. If we go through the evidence of DW2 (1 st accused), following

aspects will be revealed. As mentioned earlier, he established contact with

deceased Varma through CW18 Rafeeq somewhere in the month of June

2011. At that time, he was working in Surya Electronics, Koothuparamba

owned by the father of 3rd accused. His wife was also working as an

accountant in the shop. CW18 Rafeeq informed the 1st accused that

deceased Varma was in possession of costly gems and precious stones as

he belonged to Poonjar royal family. 3% commission was offered if the said

items were sold for a decent price. 1st accused went to

Thiruvananthapuram two times in 2011. They had occasion to see the

gems from Dubai International Hotel, Thiruvananthapuram. At that time,

CW35 Baiju and PW28 Praveen were present with deceased Varma.

Deceased Varma informed them that he had a power of attorney from other

members in the royal family and promised to give 3% commission for the

deal. Exts.P180 and P181 are the certificates issued by Sathya Gem

Testing Lab showing purity and price list of the gems. It was heldout that

the gems were worth Rupees two thousand crores. In search of a buyer

through Rafeeq, the 1st accused came into contact with PW12. 1st accused

went to the house of PW12 and he was found to be a very rich man. PW12

informed the 1st accused about his business in Sharja. Thereafter both of

them, along with Rafeeq, came to Dubai International Hotel, Crl.Appeal No.567 of 2014 and connected cases 48

Thiruvananthapuram again and stayed. As informed, deceased Varma,

along with the 6th accused, came to the hotel and he introduced the 6th

accused as his elder brother. Then deceased Varma and 6 th accused

explained the details about the precious stones to PW12. Deceased

Varma agreed to show the stones, but in a safe place. They agreed to

show the precious stones to PW12, Rafeeq and 1 st accused from "Omkar"

which they thought as the safest place. As agreed, 1 st accused, PW12,

Rafeeq, deceased Varma and 6th accused came to "Omkar". They had

occasion to see the stones. PW12 was impressed about the advantage of

the deal. PW12, Rafeeq and 1st accused agreed to divide the commission

money in equal proportion, if the sale went through. According to the 1 st

accused, PW12 informed him that there was a party in

Delhi who could be interested in the deal. PW12 had gone to Delhi and

brought them down to Thiruvananthapuram in the next week. Again, they

checked in a hotel. On the next day, the 6 th accused and deceased Varma

came to their hotel. All of them together went to the hotel, where the

persons from Delhi stayed. They wanted the stones to be examined by an

expert. It is the case of the 1st accused that when the gems and stones

were examined by an expert, he found them to be fake. When PW12

realised that the stones were not worth a deal as claimed by Rafeeq and

the 1st accused, he called the 1st accused to his house at Iritty. There were

four unknown persons in his house. According to the 1st accused, they

physically assaulted him, thinking that he tried to defraud PW12. 1 st Crl.Appeal No.567 of 2014 and connected cases 49

accused pleaded for mercy, saying that he was not aware of the fact that

the stones were fake. It is the case of PW12 and 1 st accused that former

had spent a considerable amount for inspecting the gems. 1 st accused

deposed that PW12 demanded money that he had expended. After this

incident, the 1st accused came to Thiruvananthapuram and beat deceased

Varma for trying to cheat him and PW12. He also threatened Varma that he

would file a complaint to police. At that time, Varma told him that filing a

complaint could yield no result and he was not in a position to repay

money. It is also the version of the 1 st accused that Varma confessed that

he was the son of one Bhaskaran from Coimbatore and he was not a

member of any royal family. Further, he said that the stones were fake.

After showing lot of stones, Varma informed the 1 st accused that he could

arrange a fictitious certificate describing the gems as very costly and the 1st

accused could find out intending purchasers like PW12 and sell them for a

huge money. It is the deposition of the 1st accused that Varma, by saying

so, handed over quite a number of stones to him, which were taken to his

house at Tellicherry and entrusted to his wife. She, in turn, kept the same in

an almirah. 1st accused deposed this aspect to explain away possession of

large number of stones recovered from him during the investigation.

46. PW12, though admitted that he came into contact with

deceased Varma through Rafeeq and 1 st accused, did not fully support the

version deposed to by the 1st accused in this regard. PW12 agreed that the

gems were first shown to them from the house of 6 th accused's daughter. Crl.Appeal No.567 of 2014 and connected cases 50

Gems in small boxes were shown along with three Ganesh figurines and

an emerald bar. The stones were exhibited keeping atop a round dining

table. Thereafter PW12 had occasion to see the stones three times more.

Terms of the deal were discussed between PW12, deceased Varma and

others. PW12 met the deceased on 26.07.2012. He hosted an Iftar party in

Dubai International Hotel, Thiruvananthapuram. 1st accused, Rafeeq, 6th

accused and deceased Varma along with two advocates by name Angel

and Joy were present. When the 1 st accused attempted to take

photographs of Varma, latter became very angry and rebuked him for doing

so without his permission. Deceased Varma questioned the 1 st accused by

saying that if somebody had killed him, the 1 st accused would be held

responsible. At that time, persons brought down from Delhi, at the instance

of PW12, were also there. PW12 had given a statement to Magistrate

under Section 164 Cr.P.C. (Ext.P13). PW12 identified the gems, figurines

and stone bar from the court.

47. In cross-examination, PW12 admitted that Rafeeq, 1 st accused

and himself agreed to divide the commission money and he did not get any

authorization for the deal as promised by deceased Varma. Even though

the 1st accused told him that the authorization had been sent to his e-mail,

PW12 did not get it. PW12 deposed that he could not have dealt with the

precious stones without an authorization because he had to find a

purchaser in UAE. But, deceased Varma and 6 th accused promised that

there would be no difficulty in the deal for want of an authorization letter. Crl.Appeal No.567 of 2014 and connected cases 51

Therefore, he agreed to proceed with the deal on the condition that

authorization letter in original should be handed over when a genuine party

approached him for dealing with the merchandise. Further down in the

cross-examination, PW12 deposed that he brought experts from Delhi to

examine the stones and on examination they found the stones possessed

by Varma were of inferior quality. According to PW12, what he meant by

fake gems in his previous statements was only that the gems were of

lesser quality or purity than claimed. Defence has a case that in his

statement to police under Section 161 Cr.P.C. and the one given by him

before a Magistrate under Section 164 Cr.P.C., he has mentioned that the

stones were fake. For this, PW12 offered an explanation that what he

intended was only that the stones were of lesser carat value. However, he

extricated himself from the deal when Varma refused to hand over some

gems for testing by a competent laboratory. According to PW12, he had

spent about `5 lakhs for arranging a party and other incidental expenses.

Moreover, deceased Varma had borrowed money from him. When it was

repeatedly suggested to PW12 that the stones were fake, he answered

that they were not fake, but of a lesser value. Despite strict cross-

examination on this aspect, PW12 stuck to this version.

48. PW12 deposed that in the month of August 2012, he

understood that the stones were of inferior quality and he lost interest in

the deal. It has come out in PW12's cross-examination that he had paid

`55,000/- to deceased Varma 13 days prior to his death from a hotel at Crl.Appeal No.567 of 2014 and connected cases 52

Thiruvananthapuram partly in cash and partly by way of a cheque. That

was his last meeting with deceased Varma. PW12 deposed that Varma

was in financial difficulties at that time. Despite a searching cross-

examination, these aspects in PW12's evidence remain credible.

49. On a conjoint reading of the depositions of PW12 and 1 st

accused, (DW2), it will be evident that through CW18 Rafeeq the 1 st

accused came to know about the gems in the possession of deceased

Varma and through both of them, PW12 was introduced to the intended

deal. It makes abundantly clear that among the accused persons, 1 st

accused is the one who developed initial contact with deceased Varma.

50. Indisputably, fate of the case will depend on quality and

reliability of the circumstantial evidence. Admittedly, the incident took place

in the dining room and bed room of "Omkar". It is the prosecution case that

the 6th accused was in the company of the deceased before and at the time

of occurrence. But, for the reasons stated by prosecution, he was

arraigned as an accused. He did not seek tender of pardon under Section

306 Cr.P.C. As he remained an accused, the prosecution became

incapacitated to adduce any evidence regarding the actual incident inside

the house.

51. Well settled are the principles regarding appreciation of

circumstantial evidence in a criminal trial. In Charan Singh v. State of

Uttar Pradesh (AIR 1967 SC 520) the following observations are made:

"It is well established that in cases where the Crl.Appeal No.567 of 2014 and connected cases 53

evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and the circumstances so established should be consistent only with the hypothesis of the guilt of the accused person, that is, the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved. To put it in other words the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person."

Thereafter, in Sharad Birdhichand Sarda v. State of Maharashtra (AIR

1984 SC 1622) the following propositions are laid down:

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not merely 'may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved;

and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been Crl.Appeal No.567 of 2014 and connected cases 54

done by the accused."

52. Aforementioned principles have been followed religiously in

many decisions. Recently in Suresh and another v. State of Haryana

(AIR 2018 SC 4045) the following propositions are laid down:

"Circumstantial evidence are those facts, which the court may infer further. There is a stark contrast between direct evidence and circumstantial evidence. In cases of circumstantial evidence, the courts are called upon to make inferences from the available evidences, which may lead to the accused's guilt. In majority of cases, the inference of guilt is usually drawn by establishing the case from its initiation to the point of commission wherein each factual link is ultimately based on evidence of a fact or an inference thereof. Therefore, the courts have to identify the facts in the first place so as to fit the case within the parameters of 'chain link theory' and then see whether the case is made out beyond reasonable doubt. In India we have for a long time followed the 'chain link theory' since Hanumant Case (AIR 1952 SC 343), which of course needs to be followed herein also."

Recently, a three Judge bench of the Supreme Court in Umesh Tukaram

Padwal and another v. State of Maharashtra (AIR 2019 SC 4279)

reiterated the settled principles that in a case based on circumstantial

evidence, the circumstances relied upon by the prosecution should be

proved beyond reasonable doubt and such proved circumstances should

form a complete chain so as not to leave any doubt in the court's mind

about the complicity of the accused. Same principles have been stated in Crl.Appeal No.567 of 2014 and connected cases 55

Baiju Kumar Soni and another v. State of Jharkhand ((2019) 7 SCC

773) and also in State of Rajasthan v. Mahesh Kumar @ Mahesh

Dhaulpuria and another ((2019) 7 SCC 678).

53. In the light of the aforementioned legal principles, we shall first

venture to have a close look at the evidence, especially oral evidence,

adduced to substantiate the prosecution case that accused 1 to 5 were

present in and around the crime scene on 24.12.2012 and also touching

their identity. At the outset, we may mention that the prosecution has

examined a few witnesses to establish that accused 1 to 5 came to

Thiruvananthapuram on 24.12.2012 and they were present in and around

"Omkar" immediately prior to and after the incident. Prosecution ventured

to establish that the accused escaped from the crime scene in different

vehicles to reach at Railway station, Thampanoor. Prosecution also wanted

to rely on mobile phone CDR details to fix the accused's location in the

precincts of the crime scene. True, the prosecution has to establish that the

phone numbers included in the CDRs were used by the accused persons.

This aspect we shall consider in the subsequent paragraphs. First of all, let

us deal with the oral evidence adduced by the chance witnesses to

establish presence of the accused persons in and around "Omkar".

54. Before dealing with evidence, we shall restate the principles

regarding appreciation of oral evidence adduced by chance witnesses.

Learned senior counsel for accused 3 to 5 relying on Suresh's case

(supra) contended that testimony of chance witnesses, viz. PWs 3 to 8, Crl.Appeal No.567 of 2014 and connected cases 56

should be rejected since the infirmities in their statements can never

inspire any confidence in the court's mind.

55. It can be stated as a general proposition that chance

witnesses, if explain their presence in the named location at the relevant

time, their testimony could be taken into account and due regard could be

given to their versions. However, if the chance witnesses failed to offer any

plausible explanation for their presence at the material time and place, the

courts would be slow in relying on them.

56. In Shankarlal v. State of Rajasthan ((2004) 10 SCC 632) it

has been clearly laid down that deposition of a chance witness whose

presence at the place of incident remains doubtful should be discarded. Referring to many other decisions in Suresh's case, the Supreme Court

held that generally the chance witnesses, who reasonably explain their

presence in the named location at the relevant time, may be taken into

consideration and should be given due regard, if their version inspires

confidence and the same is supported by attending circumstances.

Nevertheless, the evidence of chance witnesses requires a cautious and

close scrutiny.

57. PW3 Geethakumari resided in "Chandralayam", which is next

to "Omkar". Before and at the time of occurrence, "Omkar" was lying

vacant. PW3 closely knew the 6th accused and his family members.

According to her testimony, on 24.12.2012, she was present at her house.

Her husband is an advocate clerk. At about 8.45 a.m. on the said day, he Crl.Appeal No.567 of 2014 and connected cases 57

had gone to work. Around 10.00 a.m., PW3 went to her uncle's house

which is nearby and came back at 11.45 a.m. When she was stepping into

her house, she saw a white car in "Omkar" car porch. Thereafter, she came

out at 12.00 noon to go to her mother's house. She returned home at about

1.00 p.m. When she looked towards "Omkar", she found two persons

standing outside that house. She identified them in the dock as accused 1

and 4. When she was watching television and having lunch, at about 2.00

p.m., somebody rang up door bell. When she peeped through a window,

she found the 6th accused. PW3 opened the door. She asked him what was

the matter? He wanted to make a phone call. PW3 found him very nervous

and with trembling hands. She handed over a mobile phone with

no.9447254165 to the 6th accused. After making a call, he returned the

phone. He informed PW3 that some persons administered chloroform on

him and another person and robbed cash. When PW3 asked what was the

amount lost, the 6th accused went away without answering. After sometime,

PW70 came on a motor bike. Thereafter, a police jeep came to "Omkar"

and returned. Again the police jeep came back in a short time and 108

ambulance followed it. After ambulance had left, 6 th accused's wife

Ponnamma came in an autorickshaw and went inside "Omkar". After

sometime, she came to PW3's house and informed that Harihara Varma

was killed. PW3 had seen Varma from "Omkar" 2-3 times before. When

she saw the 6th accused and Varma in "Omkar" on an earlier occasion,

there were two youngsters and a lady with them. She identified accused 2 Crl.Appeal No.567 of 2014 and connected cases 58

and 3 as the persons who had come there earlier, along with a lady. She

testified that those accused whom she identified from the dock were

previously shown to her by the investigating team.

58. This witness was subjected to a lengthy cross-examination. It

is an admitted fact that PW3's husband Rajendran Nair's statement was

recorded in Ext.P23 inquest report. He was not examined before the court.

In the cross-examination on behalf of the 1 st accused, it was suggested to

this witness that she was present in the court on the previous day of her

examination and she had enough opportunity to see all the accused

persons. To this suggestion, she answered that the accused persons had

covered their faces when they left the court room. It is evident, the attempt

made by the defence counsel was to show that PW3 identified the accused

only from the court and in order to unduly help prosecution, despite she

had no previous occasion to see the accused, that too in the absence of a

test identification parade conducted at the time of investigation, she falsely

deposed about their identity. But, this case of the defence is stoutly denied

by PW3, emphatically saying that she found the accused 1 and 4 on the

date of occurrence in front of "Omkar" and accused 2 and 3 along with a

lady in the said house on a previous occasion.

59. Another suggestion made to this witness is that since her

husband was an advocate clerk attached to a criminal lawyer, he had

acquaintance with police officers. And in order to unjustly support the

prosecution case, she testified falsehood regarding identity of the accused. Crl.Appeal No.567 of 2014 and connected cases 59

This case is also strongly denied by this witness. PW3, in cross-

examination, stated that two weeks after the incident, she had seen the

accused when PW71 brought them to her house for identification. It is her

case that prior to and after identifying the accused, she had given

statements to police. On 09.01.2013 and 26.03.2013 she gave additional

statements to the investigating officer. Admittedly, none of the accused

were known to her previously.

60. When PW3 was cross-examined by the counsel for 3 rd

accused, she deposed that she knew the 6th accused and his family

members. It has come out in evidence through records that the house

"Omkar" is situated on the immediate north of PW3's house, sharing a

common boundary. PW3 admitted in cross-examination that she did not

inform the age, complexion or other details touching the accused persons'

identity. She could not say as to who was the girl seen with accused 2 and

3 prior to the incident in "Omkar". PW3's evidence in this regard gets

support from the testimony of PW10, the lady who stated to have visited

"Omkar" in the company of accused 2 and 3 on an earlier occasion.

Definite case put forwarded by the defence counsel that police had pointed

out all the accused by their names and ranks and that was why PW3

identified them in court has been denied by her saying that she had ample

opportunity to see the accused before and on the date of incident.

61. PW3 deposed in cross-examination that her uncle was laid up

and on the date of occurrence, she had spent one hour with him. Crl.Appeal No.567 of 2014 and connected cases 60

Thereafter, she came back to her house. At that time, nobody was present

in her house, as her husband had gone for work. At about 11.45 a.m., she

came back after meeting her uncle and at about 12 o' clock, she again

went out to meet her mother. She returned at about 1.00 p.m. and at that

time, she saw accused 1 and 4 in front of "Omkar". This version remains

credible despite strict cross-examination. When it was suggested to PW3

that she could not have seen accused 1 and 4 in front of "Omkar", she

stated that her house is in a higher level than "Omkar". She testified that

"Omkar" could be clearly seen from her courtyard. Possibility of PW3

seeing two persons standing in front of "Omkar" remains believable despite

a tough cross-examination. Reasons stated by PW3 for remembering the

accused were seriously challenged. Her versions that she saw accused 1

and 4 on the date of occurrence and accused 2 and 3, on an occasion prior

to the incident are disputed by saying that she had no special reason to

remember them. Still, PW3 adhered to her version that she vividly

remembered the physical appearance of the accused.

62. In the cross-examination by counsel for the 5th accused, PW3

deposed that on 24.12.2012 night she gave her first statement to police.

PW3 definitely answered that two persons (accused 1 and 4) were not

seen by the side of the gate, but they were standing in the courtyard, right

in front of "Omkar". We find no reason per se to disbelieve PW3's version

regarding identification of accused 1 to 4.

63. PW4 Anilkumar @ Sabu is an autorickshaw driver. His Crl.Appeal No.567 of 2014 and connected cases 61

autorickshaw bears no.KL 01 BE 3128. He used to park his vehicle in the

auto stand at Sasthamangalam. He spoke about the trips undertaken on

24.12.2012. According to his chief-examination, he had trips to

Vazhuthakadu, Thampanoor, Vellayambalam and Vattiyoorkavu. He had

gone to Railway station, Thampanoor at about 1.30 hours in the noon. He

reached there by 2 o' clock. He transported three youngsters from Kerala

Nagar, Puthoorknonam to Railway station, Thampanoor. It is his version

that there were five youngsters, out of which three boarded his

autorickshaw. All the five accused were identified by this witness. The

persons, who travelled in his autorickshaw, have been specifically

identified by PW4 as accused 1, 4 and 5. PW4 deposed that since he

could not carry five passengers in autorickshaw, he took only three

persons. He demanded `80/- as hire charges and they gave him `100/-.

He had given Ext.P2 statement before the learned Magistrate concerned

under Section 164 Cr.P.C.

64. This witness was cross-examined at great length by all the

counsel. The defence counsel wanted to establish that he was unjustly

obliging police officers since he, being an autorickshaw driver by

profession, always wanted help from police. This suggestion is denied by

him. Learned counsel for the accused persons strenuously attempted to

bring out that none of the accused persons travelled in PW4's

autorickshaw on the date of occurrence. In order to establish their

contention, various questions relating to his parking place and availability Crl.Appeal No.567 of 2014 and connected cases 62

of other autorickshaws in the area were put. He answered those questions

by saying that it was only by chance he carried three persons in his

autorickshaw to Railway station, Thampanoor. According to his testimony,

he used to get trips to Puthoorkonam Kerala Nagar a couple of times in a

month. It has come out in evidence that PW4 did not inform anyone, on the

date of occurrence, that he had taken three persons from Kerala Nagar to

Railway station, Thampanoor. It is his version that he did not attach any

importance to that fact even when he came to know about Varma's death.

PW4 admitted that when he saw the photographs of the accused persons

through media, about 10-12 days after the incident, he could identify the

persons who travelled in his autorickshaw.

65. When cross-examined, PW4 deposed that police had shown

group photos and single photos of the accused persons and questioned

whether they had travelled in his autorickshaw. He could identify them. This

witness also stated in cross-examination that the accused had gone out

from the court with covered faces. PW4 further deposed that the

passengers boarded his autorickshaw, on the date of occurrence, were in a

hurry to reach Railway station.

66. When cross-examined by the 5th accused's counsel, it is

brought out that PW4 is also known as Sabu. He admitted that he has no

documents to show his name Sabu. Contention raised by the accused that

he is a henchman of police is denied by him. Despite very lengthy cross-

examination on this witness, we find no reason to disbelieve his version Crl.Appeal No.567 of 2014 and connected cases 63

that he had carried accused 1, 4 and 5 from Puthoorkonam Kerala Nagar

to Railway station, Thampanoor after 1.00 p.m. on the date of occurrence.

67. PW5 Renjith is another autorickshaw driver. He was driving

autorickshaw bearing no.KL-01 AV 9504, belonged to him. He used to park

his autorickshaw at Nettayam. In the course of investigation, police officers

questioned various autorickshaw drivers in order to find out who travelled

through Kerala Nagar on 24.12.2012 in the noon. He was asked to come to

police station in connection with the investigation. PW5 had a trip at about

12 o' clock in the noon on 24.12.2012. It was to Veterinary Hospital,

Nettayam. He went to the hospital to bring a veterinary doctor and helper

to the house of a person known to him. While he was transporting said

persons, he found two youngsters on the road turning back, on hearing

sound of his autorickshaw. But, they did not show any signal for lift

because they found passengers in his autorickshaw. After dropping

veterinary doctor and helper in the hospital, he came back through the

same road. While PW5 was coming back, the same youngsters, each one

carrying a bag and one holding a plastic cover in hand, showed stop

signal. PW5 stopped his vehicle and enquired as to where they wanted to

go. They wanted to go to Railway station, Thampanoor. PW5 deposed that

he was unwilling to take the trip since Thampanoor was slightly away. As

he then was taking medicines for diabetes and cholesterol and if he

delayed the medicines and food, he used to experience a shivering. He

told them that he could not take them to Thampanoor, but could drop them Crl.Appeal No.567 of 2014 and connected cases 64

in a nearby bus stop. Nearest bus stop was Mannurkonam junction. They

insisted to go to Thampanoor and wanted to reach the Railway station

within 20 minutes. PW5 informed that within 20 minutes he could not take

them to Railway station. Then they wanted to be dropped in a nearby taxi

stand. PW5 therefore dropped them in Vattiyoorkavu taxi stand. Time then

was about 1.40 p.m. They went in a taxi from the stand. He identified the

two persons travelled in his autorickshaw as accused 2 and 3.

68. In the cross-examination done by the 3rd accused's counsel,

this witness deposed that each one of them carried a bag and one held a

plastic carry bag. Lot of questions were asked regarding the distance

between Veterinary Hospital and the place where he allegedly met

accused 2 and 3. It was suggested to this witness that the investigating

officer falsely planted him and he unduly obliged police fearing difficulties

likely to be caused by them in his job as auto driver. All these suggestions

are denied by this witness. PW5 also deposed in cross-examination that

photographs of the accused were seen in newspapers and television.

When it was suggested to this witness that he identified accused 2 and 3

from the dock as pointed out by police and also on seeing them through

media, he denied the suggestion stating that he had clearly seen them on

the date of occurrence. Testimony of this witness cannot be discarded in

the matter of identification of accused 2 and 3, despite extensive cross-

examination.

69. There is a clear linkage between the testimony of PW5 and Crl.Appeal No.567 of 2014 and connected cases 65

PW6 Jahangeer. PW6 was driving his own taxi bearing no.KL 01 AY 8754.

He used to park his vehicle in Vattiyoorkavu taxi stand. Drivers undertake

trips on turn basis. PW6 deposed that between 1.30 - 1.45 p.m. on

24.12.2012 he had travelled from Vattiyoorkavu to Railway station,

Thampanoor. According to him, an autorickshaw came and stopped in front

of his car. It was his turn to take passengers from the stand. Two persons

alighted from the autorickshaw asked PW6 if he could transport them to

Railway station, Thampanoor. PW6 agreed. Both persons were having

separate bags and one was holding a plastic cover. Both of them sat in the

back seat. After sometime they asked PW6 to hurry up as they wanted to

reach the railway station to catch a train. When they were proceeding, after

Edapazhanji, PW6 heard them saying that juice bottles in the cover were

spilling. PW6 turned back and told them not to spill juice inside the car.

When they reached near a bus stop opposite to the Cotton Hill L.P. School

and Teachers Training School, PW6 stopped the vehicle. One person got

down and kept the plastic cover by the side of bus stop. Then he came

back and they resumed journey. At about 2.00 - 2.10 p.m. they reached at

Railway station, Thampanoor. PW6 demanded `400/- as hire charges.

They gave a currency note for `500/-. When PW6 told them that he would

get change and give back `100/-, they said it was not required. He

identified the passengers as accused 2 and 3 present in court. On the date

of occurrence itself police had questioned him and his statement was

recorded for the first time on 24.12.2012. Thereafter, on 26.12.2012 also Crl.Appeal No.567 of 2014 and connected cases 66

he was questioned. On that day, at about 10.30 a.m., PW6 was asked to

produce his car. A mahazar was prepared. Thereafter he went along with

police officers to the bus stop opposite to Cotton Hill L.P. School and

Teachers Training School. PW6 had shown the place where the accused 2

and 3 had abandoned the cover. PW6 took out the cover and handed over

to police. Ext.P25 is the mahazar dated 26.12.2012. PW18 is the witness

to the seizure mahazar. That plastic cover is marked as MO11. Three

Tropicana juice paper cans and a juice bottle of another brand were kept in

the cover. MOs 12 to 14 are identified. In the plastic cover, a pair of gloves

and a towel (thorth) with violet border were also kept. MOs 15 and 16 are

the towel and gloves. Cashew nut box is MO17. A green bottle kept in the

cover is MO18. Ext.P3 is the kaichit executed by PW6 for receiving back

his car from police custody.

70. After ten days PW6 was called again to Peroorkada police

station. He was called to identify the passengers travelled in his car on

24.12.2012. Two persons (accused 2 and 3) were identified from among 10

persons lined up in police station.

71. Learned counsel for the 2nd accused extensively cross-

examined this witness. During cross-examination, PW6 answered that

accused 2 and 3 wanted to reach railway station before 2.10 p.m. as their

train was scheduled to leave at that time.

72. Learned counsel for the 3rd accused also cross-examined this

witness. PW6 deposed that trip sheet would be given to those passengers Crl.Appeal No.567 of 2014 and connected cases 67

who insisted for it. Since these accused persons did not insist, PW6 did not

prepare the same. Defence case suggested to this witness is that he did

not take out any cover allegedly jettisoned by accused 2 and 3 and if at all

they had kept any cover by the side of a bus stop in a prominent part of

Thiruvananthapuram city, it would have been removed by Municipal

Corporation employees engaged in waste disposal. PW6 definitely

answered that till 26.12.2012 it was not removed and the cover was

available in the same place where it was placed on 24.12.2012. When it

was suggested that there was waste clearance on all days, PW6 stated

that waste removal was not done on a regular basis. All the accused have

a case that this witness is also a henchman of police officers as he wanted

support from them as taxi driver. This suggestion is stoutly denied by this

witness.

73. In the cross-examination, PW6 affirmatively stated that he did

not identify accused 2 and 3 merely by seeing their photographs in media,

but he had spent considerable time with them and had occasion to talk to

them.

74. Specific case of PW6 is that he dropped accused 2 and 3 right

in front of Railway station, Thampanoor. He admitted that CCTV

installations were there in front of the railway station. Besides, CCTV were

available at Vazhuthacadu and Edappazhanji. There was no CCTV facility

at Vattiyoorkavu. PW6 deposed in cross-examination that the investigating

officer had taken him to the Police Control Room. From there he had Crl.Appeal No.567 of 2014 and connected cases 68

shown his vehicle, stopping in front of the Railway station on 24.12.2012.

He was taken to the Police Control Room on 26.12.2012 at about 6.00

p.m. He clearly showed two persons alighting from his car in front of

Railway station, Thampanoor.

75. Testimony of this witness gets considerable support from that

of PW5 since both in unison stated that accused 2 and 3 initially travelled

in PW5's autorickshaw and he dropped them at Vattiyoorkavu taxi stand.

From there PW6 picked them up and dropped at Railway station,

Thampanoor. Despite lengthy cross-examination, credibility of this witness

was not shaken effectively.

76. PW7 Mohankumar was an employee in the Border Security

Force (BSF) who had taken voluntary retirement. At the time of

examination, he was an agriculturist. He knew deceased Varma. PW7 had

occasion to see deceased Varma on 24.12.2012 when he went to

Kanjirampara post office for buying postal stamps to send new year

greeting cards. PW7 purchased fish from a vendor in the local market and

when he turned back, he found deceased Varma coming on foot with a

suitcase in his hand. Thereafter, he went to the opposite side of road and

boarded the car belonging to 6th accused. He identified the vehicle as

Honda City car. It was about 11.00 a.m. on 24.12.2012, because he had

started to Kanjirampara from his house at 10.30 a.m. He knew the 6 th

accused as well and identified him from the dock. MO10 suit case is also

identified by this witness.

Crl.Appeal No.567 of 2014 and connected cases 69

77. During cross-examination by the 4th accused's counsel, PW7

deposed that between 2003 and 2012 he had developed acquaintance

with deceased Varma. Both of them used to go for morning walk. PW7

knew the house where deceased Varma stayed on rent. PW7 did not know

the native place of deceased Varma. In cross-examination, PW7 gave

definite answers touching his acquaintance with deceased Varma. Attempt

made by the defence counsel that he did not know the area where

deceased Varma stayed and he had no familiarity with the deceased are

denied by this witness.

78. When counsel for the 5th accused cross-examined, PW7

denied the suggestion that he was uttering lies to help the investigating

officer. In spite of cross-examination on this witness, we find no reason to

disbelieve his version that he had familiarity with deceased Varma and on

the fateful day, he had seen deceased Varma travelling in 6th accused's car.

79. PW8 Sudarshan was helping an electrician. On 24.12.2012 he

saw deceased Varma. He had gone to Kerala State Electricity Board

(KSEB) office, Vattiyoorkavu to get an application form. After collecting the

form, he came out of the office compound. Then three persons alighted

from an autorickshaw in front of KSEB office. They went towards a car

parked by the side. They were carrying three bags. They talked to

deceased Varma and all of them proceeded in the same car. The car

belonged to the 6th accused. He mentioned registration number of the

vehicle. Accused 2, 3 and 5 were identified as the persons who came in Crl.Appeal No.567 of 2014 and connected cases 70

the autorickshaw and boarded 6th accused's car. His testimony is relied on

to prove the case of last seen together theory.

80. When 1st accused's counsel cross-examined, PW8 deposed

that he was working under one Babuji. He tried to elicit from PW8 that

there was no reason for procuring any form from KSEB office in connection

with his job, to which he answered that he went there as instructed by

Babuji. PW8 deposed that for getting service connection an application

form is necessary and also for changing an electric meter. PW8 deposed

that he knew the 6th accused since he had seen him at Kanjirampara. PW8

admitted that he never knew that the 6 th accused is an advocate and he

was unaware of his phone number. PW8 further deposed that he had seen

the 6th accused's son.

81. It is the admission of this witness that he had no previous

acquaintance with the three accused persons whom he identified from the

dock. He had seen photographs of the accused persons in newspapers

prior to his examination. PW8 stated that he had no special reason to

notice the autorickshaw or the 6th accused's car. He had acquaintance with

the 6th accused three years prior to the incident. According to his testimony,

out of curiosity, he watched movements of the 6th accused and others on

that particular date.

82. In the cross-examination, it is brought out from this witness

that he used to go to a temple usually at about 7.00 a.m. At that time,

deceased Varma also used to come there. Testimony of this witness Crl.Appeal No.567 of 2014 and connected cases 71

relating to the presence of accused 2, 3 and 5 in the company of 6 th

accused and the deceased could not be effectively discredited.

83. From the evidence given by the above witnesses, it will be

clear that deceased Varma had boarded the car driven by 6 th accused at

Kanjirampara. Later, from the front side of KSEB office, Vattiyoorkavu,

accused 2, 3 and 5 also boarded the same car and they proceeded to

"Omkar". After the incident, accused 2 and 3 initially got into PW5's

autorickshaw from Puthoorkonam Kerala Nagar to Vattiyoorkavu and from

there in PW6's car to Railway station, Thampanoor. Likewise, PW4 testified

that in the noon on the fateful day, he had carried accused 1, 4 and 5 from

Puthoorkonam Kerala Nagar to Railway station, Thampanoor in his

autorickshaw. In spite of lengthy and drawn out cross-examination on

these witnesses, we find no good reason to reject their testimony. Defence

case that they testified to oblige the investigating officer's whims and

fancies could not be established.

84. Learned senior counsel appearing for accused 3 to 5 and

learned counsel for accused 1 and 2 seriously attacked the evidence

relating to identification of the accused persons through the

aforementioned witness. According to them, all the above witnesses are

chance witness and their testimony regarding identification of the accused

persons can never be believed. Some of the witnesses are henchmen of

police officers and their testimonies are unreliable. Further, there is a long

delay in questioning some of the witnesses during the course of Crl.Appeal No.567 of 2014 and connected cases 72

investigation. Planting witnesses to suit the prosecution case cannot be

ruled out. Per contra, learned prosecutor contended that all the

aforementioned witnesses are reliable witnesses though they happened to

meet the accused persons at different places before and after the incident

only by coincidence. Besides, it was only after a long drawn and spread

out investigation the probable persons, who could have had knowledge

about the accused were traced out. Hence, delay in questioning them is

well explained. Learned prosecutor further contended that the court below

rightly placed reliance on their testimony finding that despite interminable

cross-examination by all the defence counsel, no worthwhile material could

be elicited from them to brush aside their credible testimony.

85. It is strongly argued by the learned counsel for the accused

that not conducting a Test Identification Parade (TI parade) is a serious

flaw in this case, especially when the witnesses plainly admitted that they

had no previous acquaintance with the accused persons. To support their

contentions, learned senior counsel for the accused relied on Laxmipat

Choraria and others v. State of Maharashtra (AIR 1968 SC 938), Mohd.

Abdul Hafeez v. State of Andhra Pradesh (1983 SCC (Cri) 139), Ganpat

Singh and others v. State of Rajasthan (1998 SCC (Cri) 201) and Ravi

@ Ravichandran v. State rep. by Inspector of Police (AIR 2007 SC

1729). Learned counsel for the 2nd accused cited Mohanlal Gangaram

Gehani v. State of Maharashtra (AIR 1982 SC 839), State of M.P. v.

Chamru @ Bhagwandas and others (AIR 2007 SC 2400) and State v. Crl.Appeal No.567 of 2014 and connected cases 73

Sait @ Krishnakumar ((2008) 15 SCC 440) and a division bench decision

of this Court in Suresh v. State (2003 KHC 216).

86. Apex Court in Laxmipat Choraria's case considered an issue

relating to Sea Customs Act, 1878 and IPC, where the facts would show

that the accused persons indulged in a criminal conspiracy among

themselves to smuggle gold into India. While dealing with various

questions, it is observed that ability of witness to identify an accused

should be tested without showing him the suspect or his photograph or

furnishing him any data for identification. Showing photograph prior to

identification makes the identification worthless. That observation was

made in the light of Section 9 of the Evidence Act, 1872 (in short,

"Evidence Act"). Admittedly in our case, no identification parade was

conducted. Therefore, the principles in the above decision have no

application here.

87. In Mohd. Abdul Hafeez's case, the decision is to the effect

that when no description of the accused was provided by the witnesses at

the time of investigation, it would be essential to conduct a TI parade after

arrest of the accused. In the facts and circumstances of the case, the

Supreme Court found that non-conduct of a TI parade was fatal to the

case. This decision can be easily distinguished on facts.

88. In Ganpat Singh's case it was held that TI parade conducted

at the time of investigation after showing the accused from police station

has no significance. This decision also does not apply to the facts in this Crl.Appeal No.567 of 2014 and connected cases 74

case.

89. In Ravi @ Ravichandran's case, the Supreme Court

observed that when a case is registered against an unknown person,

identification parade should be held as early as possible. There cannot be

any dispute to this proposition. But, in this case the accused were arrested

only on 05.01.2013, ie., 12 days after the incident. It is alleged that the

accused were paraded before media. For the above reason no purpose

could have served by conducting a TI parade after this, contended learned

counsel. But DW6, the ADGP, who held the press meet denied the defence

case that the accused were exhibited to media glare. In this context, it is

relevant to note the prosecution case that they arrested the accused only

after confirming their identity through the witnesses who had occasion to

spot them immediately before and after the incident. We shall examine

propriety of the press meet at the appropriate place.

90. We may refer to the decisions cited by the learned counsel for

the 2nd accused. In Mohanlal Gangaram Gehani, the principle is that

when the victim did not know the accused prior to the occurrence and

accused was shown to victim by police before trial, then an identification

parade conducted later cannot be relied upon. This principle is indubitable.

However, it does not apply to the case on hand since there was no TI

parade at all.

91. Another decision cited by the learned counsel for 2nd accused,

State of M.P. v. Chamru @ Bhagwandas, laid down the same principle Crl.Appeal No.567 of 2014 and connected cases 75

that after showing a photograph of the accused, no purpose will be served

by conducting TI parade. The same principle was considered in State v.

Sait @ Krishnakumar.

92. A division bench of this Court in Suresh's case held that when

no TI parade was conducted and when the accused was identified by

witnesses for the first time in court, the identification will have to be

corroborated by other evidence.

93. Learned prosecutor relying on D.Gopalakrishnan v.

Sadanand Naik and others (AIR 2004 SC 4965) contended that showing

photographs to witnesses for the purpose of identification and witnesses

giving identifying features of assailants during the course of investigation is

permissible. The following observations are heavily relied on:

"There are no statutory guidelines in the matter of showing photographs to the witness during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction."

But, in the above case the Supreme Court did not accept the identification,

since the investigating officer had procured an album containing the

photographs with names of the accused written and showed the album to

eye witnesses to record their statements under Section 161 Cr.P.C. Apex

Court observed that the procedure adopted by police was not justifiable

under law as it affected a fair and proper investigation. However, authority

of the police officers to show photographs of the suspects to probable Crl.Appeal No.567 of 2014 and connected cases 76

witnesses to verify whether the investigation proceeded in the correct line

has been approved by the Supreme Court.

94. Learned prosecutor placed reliance on Saji and others v.

State of Kerala (2007 (2) KHC 595) to contend that even after publication

of photographs of the accused in newspapers, the veracity of TI parade will

not be lost. The decision may not apply to the facts in our case as there

was no TI parade conducted.

95. To conclude this debate, we hold that in a case where the

accused were not known to the witnesses previously, it is always safe to

conduct a TI parade to ensure that the investigation is proceeding in the

right path. It is well settled that TI parade is in the realm of investigation. If

a witness identifies an accused at the time of TI parade and fails to identify

him at the time of trial, then no earthly purpose will be served by the

parade because the legal proposition, that identification of an accused from

court at the time of trial is the substantive evidence, is indisputable.

Nonetheless, if a witness, who failed to identify an accused at the time of TI

parade, identifies him for the first time in court, then probative value of his

evidence in relation to the identity of the accused will be very less. To lend

credibility to the prosecution case regarding identity of the accused, who is

not known to the witnesses previously, it is always better to conduct a TI

parade to ensure correct identity of the real person(s) involved in the

offence. In this case, only after about two weeks, the investigating officer

could zero in on the accused. Evidence shows that the accused were Crl.Appeal No.567 of 2014 and connected cases 77

shown to material witnesses before recording their arrest. Hence, chance

of holding a TI parade was lost.

96. Yet, we find absolutely no reason to hold that all the above

witnesses falsely testified in court to unduly support the prosecution by

implicating innocent unknown accused in the crime. True, no evidence has

been brought out to show that any of the witnesses had furnished

identifying features of the accused before hand. However, the investigating

officers, viz., PWs 71 and 72, deposed that only after thoroughly

questioning the suspects and unearthing relevant incriminating evidence

and also on getting them identified through some of these witnesses, they

were booked. This is a case where conducting a TI parade would have

become a futile act since identity of the accused were revealed

immediately before their arrest. Ideally, the investigating officers could have

conducted a TI parade in this case. But, the question is: Did the accused

suffer any prejudice on account of non-conduct of a TI parade? On a

meticulous analysis of the reliable testimony adduced by these witnesses,

we do not find any reason to hold that they falsely implicated the accused

in the crime. Nobody has a case that any of these witnesses had an ill-will

or animosity towards any of the accused. We find no prejudice caused to

the accused by non-conduct of a TI parade.

97. In our view, the witnesses referred to above have given a

reliable account of the presence of accused persons on 24.12.2012 prior to

and subsequent to the incident. They also convincingly spoke about Crl.Appeal No.567 of 2014 and connected cases 78

identity of the accused. Although we find no legal or factual reason to

discard their testimonies, we are of the opinion that other aspects in the

prosecution case also have to be looked into for arriving at a finding of

guilt.

98. Another strong circumstance relied on by learned prosecutor

to establish guilt of the accused is the recovery of gems and precious

stones from the possession of accused 1 to 4, which, according to him, the

accused failed to explain how they happened to get the same. We use the

expression "recovery" in a broader sense to include the discovery of a

relevant fact (here, possession of the gems and precious stones) as per

the information received from an accused in custody referable to Section

27 of the Evidence Act as well as seizure of the articles at the time of arrest

of the accused. Of course, the accused 2 to 4 denied the factum of

recovery of gems from them and the 1st accused tried to explain it away. It

is pertinent to note that prosecution has no case of recovery of any

valuable articles from the possession of 5th accused. In this context, we feel

it apposite to mention the relevant aspects in the deposition of PWs 11, 19,

20, 26 and 28 relating to recovery of gems and stones from accused 1 to 4.

99. PW11 Jayamol @ Pooja is a friend of PW10 Archa and they

came down from Bangalore in search of a job at Ernakulam and resided in

a house, "Smayana" at Eroor along with some of the accused. Testimony of

this witness is strongly relied on by the prosecution to prove the alleged

conspiracy, which we shall discuss later. For the purpose of this point, we Crl.Appeal No.567 of 2014 and connected cases 79

may refer to her evidence relating to transportation of some gems at the

instance of the 2nd accused. According to her chief-examination, she, along

with PW10, came to Ernakulam in search of job. As instructed by the 2 nd

accused, this witness and PW10 stayed in a house "Smayana", taken on

rent by the 1st accused, wherein accused 2 and 3 too resided. PWs 10 and

11 stayed for a couple of weeks in the house. When they got reliable

information that two other persons would be coming to stay in the house,

they shifted to a ladies hostel at Ernakulam. PW11 deposed that on

25.12.2012, the 2nd accused met her from ladies hostel and entrusted a

bag for safe keeping. He wanted the bag to be kept there for some time as

he intended to take a bus ticket to Bangalore. After two days, the 2 nd

accused called PW11 over phone and requested her to bring the bag to

Bangalore urgently. When PW11 informed that she had no money to

undertake a journey to Bangalore, 2 nd accused deposited `1,500/- in her

account. After withdrawing money from her account, PW11 went to

Bangalore carrying the bag entrusted by the 2nd accused. He was waiting

for her in a bus stop at Madiwala. After handing over MO23 bag to the 2 nd

accused, she went to the ladies hostel where she had been staying while

in Bangalore. It has come out in cross-examination that PW11 had

occasion to see the gems kept in the bag, which she identified from court.

Prosecution case is that the gems kept in the 2nd accused's bag were

seized at the time of his arrest on 05.01.2013. Despite a tough cross-

examination on this witness to show that she did not transport MO23 bag Crl.Appeal No.567 of 2014 and connected cases 80

to Bangalore as instructed by the 2nd accused and no gems were secreted

in it, PW11 stuck to her version unflinchingly.

100. PW19 Vijayakumar has a case that on 29.12.2012, his friend

Lithin (PW29) and accused 2 to 4 met him at his work site and had shown

some gems. They requested PW19 to make arrangements to sell them

through someone. Since PW19 was having no previous experience in gem

trade, he returned the articles. On the next day (30.12.2012) all the above

persons again met PW19 and wanted `1,00,000/- urgently for some

business purpose of the 2nd accused. He paid `60,000/- which he was

having in possession and `30,000/- borrowed from a friend. By way of

security for the money, the accused 2 to 4 handed over 12 gems to him.

After a couple of days, police came and recovered the gems from him.

MO29 series and MO30 series gems are proved by this witness in court.

Albeit a searching cross-examination, we find no reason to disbelieve the

testimony of PW19 that the 2nd accused handed over MO29 series and

MO30 series gems to him as security for `90,000/- borrowed from him in

the presence of accused 3 and 4 and also PW29.

101. In this context, we may mention that the testimonies of PWs 11

and 19 are required to be analysed in detail for the purpose of considering

the prosecution case relating to conspiracy as well, which we shall do in

the succeeding paragraphs.

102. Evidence tendered by PW20 Jayaprakash is also relevant

here. He is the brother of PW19. He is a witness to Ext.P26 seizure Crl.Appeal No.567 of 2014 and connected cases 81

mahazar prepared at the time of recovery of 12 gems from the possession

of PW19. We find no dent on the credibility of this witness in spite of cross-

examination.

103. PW26 Chandu is the key witness for the prosecution to prove

seizure of material objects from accused 2 to 4 on the date of arrest. In the

chief-examination, he deposed clearly about the seizure of material objects

from the accused and he witnessed it from Police Circle Office,

Peroorkada. According to his testimony, he saw the seizure on 05.01.2013.

Further, the seizure was from accused 2 to 4. He identified the said

accused from the dock. It is his version that the 2nd accused had MO23 bag

in his possession. 2nd accused, as directed by police officers, opened the

bag and took out articles kept therein. Apart from his dress materials, purse

and mobile phone, he took out two jewel boxes in white and rose colours.

White jewel box is marked as MO36. In MO36, 35 gems were kept. Those

35 gem stones are marked as MO37 series. Rose jewel box seized from

MO23 bag belonging to the 2nd accused is marked as MO38. In MO38

jewel box, there were 37 gems. They have been identified by this witness

as MO39 series. In addition to the precious stones, his dress materials,

mobile phone, purse, etc, are also identified by this witness. All the

personal belongings of the 2nd accused are proved through this witness.

Ext.P35 mahazar evidences the seizure of articles from 2 nd accused, in

which he is a signatory.

104. Thereafter, PW71 examined the bag belonging to the 3rd Crl.Appeal No.567 of 2014 and connected cases 82

accused. His bag identified by PW26 is marked as MO43. He deposed that

3rd accused opened the bag which contained dress materials and two jewel

boxes along with his purse, mobile phone, etc. All the items seized from

MO43 bag are identified by PW26. Out of the two jewel boxes, one was in

a round shape and the other rectangular. Rectangular box was white in

colour and round box in meroon. Meroon jewel box is marked as MO47. In

MO47, one precious stone was kept. That is marked as MO48. White jewel

box is marked as MO49. In MO49, 170 stones of three different types, viz.,

white, ash and transparent, were kept. The stones found in MO49 box are

marked as MO50 series. In the list of the personal belongings of this

accused, his driving licence, ATM cards, etc. are also included. Ext.P39 is

the mahazar evidencing the seizure in which PW26 had signed.

105. Thereafter PW71 examined the bag belonging to the 4 th

accused. PW26 identified the bag marked as MO53. PW71 caused the bag

to be opened by the 4th accused. It contained his dress materials, two jewel

boxes, mobile phone, purse, etc. PW26 identified wearing apparels seized

from 4th accused's bag and they were separately marked. Likewise, ATM

cards, cash, etc. are also marked. Thereafter he proved seizure of two

jewel boxes and the contents therein. A rectangular jewel box seized from

the bag of 4th accused is marked as MO60. In MO60 jewel box, there were

white and colourless stones, altogether 42 in number. They are proved

through this witness as MO61 series. Meroon colour jewel box seized from

the 4th accused is marked as MO62. In MO62 jewel box, 16 stones having Crl.Appeal No.567 of 2014 and connected cases 83

three colours, viz., white, ash and transparent, were kept. The stones are

marked as MO63 series. Mahazar prepared for effecting seizure of these

items is marked Ext.P42. It is proved through PW26 and he deposed that it

contained his signature.

106. This witness was extensively cross-examined by the learned

counsel for the 4th accused. There is no cross-examination on him done by

other accused. PW26 studied upto 10th standard. In cross-examination,

marks secured by him in various subjects for SSLC examination have been

elicited to test his ability to remember facts. He answered coherently all

such questions. It was attempted to be proved that this witness was unduly

helping the investigating agency for his personal gains, which he stoutly

denied. Regarding the contradiction in mentioning his date of birth in the

final report, he was cross-examined at length to show that his version of

passing SSLC examination was a falsehood as going by his age, he would

have passed the exam at the age of 10. He explained the incongruities

regarding his address and age by saying that the informations therein were

not furnished by him.

107. Clear suggestion put to this witness is that Exts.P35, P39 and

P42 mahazars were signed by him without seeing any seizure and without

reading them out. This suggestion is strongly denied by him. Suggestions

that he was tutored by police and he was reproducing a parrot like version

are also denied by him.

108. PW26 deposed that he happened to go to police station for Crl.Appeal No.567 of 2014 and connected cases 84

receiving back a registration certificate in respect of an Omni Car bearing

no.KL 01 AL 582 belonging to his elder brother Subash. PW26 was running

a catering service at that time. Police took the vehicle in custody since

PW26's brother drove it without due licence. PW26 deposed that the

vehicle was carrying food items prepared in his catering service and that

was why he had gone to police station. He accidently saw seizure of the

articles and signed on mahazars. According to his version, he was called to

PW71's office after 3 o' clock on 05.01.2013. In cross-examination, he

deposed that police officers specifically showed him the bags belonging to

each accused. Despite tough cross-examination, he adhered to the facts

mentioned in his chief-examination. To a specific question as to who placed

the gems in the bags belonging to the accused, he answered that he was

not aware. It is pertinent to note, the defence has no case that either police

officers or somebody else might have planted this much quantity of gems

in the bags belonging to the accused persons. We cannot discard the

testimony of PW26 as his credibility has not been affected at all in the

cross-examination.

109. PW28 Praveen closely knew deceased Varma. It is his case

that he came into contact with deceased Varma through CW35 Baiju.

PW28's acquaintance with Varma has been spoken to by the 1st accused

himself when he was examined as DW2. Similarly, PW12 also spoke about

the closeness between deceased Varma and PW28.

110. PW28 also assisted deceased Varma to make arrangements Crl.Appeal No.567 of 2014 and connected cases 85

for the sale of gems and stones. PW28 had met deceased Varma in the

company of his friends Rajendran, Vassim, Vinod, Ravi and Baiju. Their

meeting was at Jas Hotel, Thiruvananthapuram. Deceased Varma had

shown the gems to PW28 and his friends. Thereafter, on another occasion,

he saw the stones and gems in the presence of Sammad, a native of

Nilambur, Kunhippa Hajiyar, hailing from Malappuram and the 1st accused.

He identified 1st accused from the dock. At that time, the 6 th accused was

present along with deceased Varma. 6th accused was introduced as

deceased Varma's elder brother. He identified the 6 th accused from the

dock. He deposed that the intended sale did not materialise. He is a

witness to recovery of gems, stones, Ganesh figurines, stone bar, etc. from

the house of the 1st accused at Deshabhimani Road, Ernakulam. The

recovery was on 15.01.2013. As directed by PW71, this witness came to

the 1st accused's house. According to PW28, aforementioned valuable

articles were kept by the 1 st accused in a bag concealed in an almirah.

When police brought the 1st accused to his house, he took out a bag from

the almirah and opened it. A box, white in colour, was taken out from the

bag. It was marked as 'I'. Bag handed over by the 1 st accused is marked

as MO64. When white coloured box was opened, four covers were found

inside. 413 stones contained in the first cover in the white box are marked

as MO65 series. The cover was given a separate marking. Thereafter,

another cover was taken out. It is also marked. In the second cover, 184

stones were kept. They are marked as MO66 series. Third cover taken out Crl.Appeal No.567 of 2014 and connected cases 86

from the white box was also given a mark. 18 stones recovered therefrom

are marked as MO67 series. In the fourth cover, which was marked

separately, 84 stones were recovered and they are marked as MO68

series. The articles were properly packed and sealed by the investigating

officer.

111. Then another box, meroon in colour, was taken out from MO64

bag. It was marked as 'II'. That box is marked as MO69. In MO69, four

plastic covers were placed. In the first cover, a marking was given and on

opening, a chain, made with green coloured gems, was found. 65 beads

are in the chain. It is marked as MO70. Thereafter the investigating officer

(PW71) took out another cover from MO69 box and gave a marking. 10

stones recovered therefrom are marked as MO71 series. Later, 3rd cover

was taken out and after marking, it was opened. In that cover, 52 stones

were placed which are marked as MO72 series. Then, fourth cover in the

box was given a marking. It was found that 20 stones marked as MO73

series were placed in that cover.

112. After putting all the covers back in the box and properly

sealing it, the investigating officer took out another box in white colour and

marked as 'III'. There were five plastic covers in box 'III'. That box is

marked as MO74. In the first cover taken out from MO74, 16 stones,

marked as MO75 series, could be found. In the second cover, 60 stones

stones marked as MO76 series were placed. Third cover contained MO77

series gems (96 numbers). Fourth cover in the box was having 80 stones, Crl.Appeal No.567 of 2014 and connected cases 87

marked as MO78 series. After marking the fifth cover, it was opened. It

contained 170 stones marked as MO79 series. After properly sealing the

covers, they were put in the box and it was again sealed.

113. Thereafter, another box was taken out from the bag. It was

marked as 'IV'. This box also contained five plastic covers. This box is

marked as MO80. From MO80, first cover was taken out. After marking the

cover, 29 stones marked as MO81 series were found inside. In the second

cover taken out from MO80 box, 52 stones marked as MO82 series are

recovered. From the third cover, MO83 series (19 gems) are recovered.

Fourth cover was having 9 gems inside and they are marked as MO84

series. Lastly, fifth cover found to contain 90 stones marked as MO85

series.

114. Afterwards, PW71 took out another box, white in colour. It also

contained five plastic covers. In the first cover, 75 stones marked as MO87

series were placed. Second cover when opened, found to contain 52

stones marked as MO88 series. In the third cover, 75 stones were kept,

marked as MO89 series. In the fourth cover,70 stones marked as MO90

were placed. Fifth cover, when opened, found to contain 23 gems, marked

as MO91 series. All the covers were properly packed and sealed.

115. Thereafter PW71 took out a white coloured box from the bag

which is marked as MO92. It contained six plastic covers. From the first

cover in MO92, 520 stones were found out, which are marked as MO93

series. In the second cover, three stones marked as MO94 series could be Crl.Appeal No.567 of 2014 and connected cases 88

found. Third cover, when opened, found to contain 7 stones marked as

MO95 series. MO96 series (27 gem stones) were kept in the fourth cover.

8 stones, marked as MO97 series, were found in the fifth cover. In the last

cover, 6 stones were placed, marked as MO98 series. All the items were

properly packed and sealed by the investigating officer.

116. From MO64 bag, a rose coloured box was taken out which is

marked as MO99. In MO99, five plastic covers were placed. From the first

cover, MO100 series stones were recovered. In the second cover, 28

stones were kept, in three packets, which are marked as MO101 series. In

the third cover, 8 stones were placed, marked as MO102 series. When

fourth cover was examined, 2 stones marked as MO103 series could be

found. Fifth cover taken out from the box found to contain MO104 series

gems. All the material objects were properly covered and sealed.

Thereafter a navy blue box was taken out which is marked as MO105. In

that box, two plastic covers were placed. In the first cover, 410 stones were

placed which are marked as MO106 series. Second cover found to contain

40 stones which are marked as MO107 series. As done earlier, the covers

were placed in the same box, secured and sealed.

117. Thereafter from the 1st accused's bag a meroon coloured box

was taken out which is marked as MO108. When it was opened, two

covers were found. In the first cover, 214 stones were placed which are

marked as MO109 series. On opening the second cover, it was found to

contain 52 stones marked as MO110 series. Those two covers were placed Crl.Appeal No.567 of 2014 and connected cases 89

in the same box, packed and sealed.

118. From MO64 bag, another plastic cover was taken out. Inside

that cover, five small covers were placed. First small cover, when opened,

found to contain MO115 series gems. In the second cover, MO116 series

gems could be found. From the next cover, MO117 series gems were

recovered. Yet another cover found to contain MO118 series. Fifth cover

contained gems marked as MO119 series. All the five covers were placed

in the plastic cover and it was wrapped in brown paper. Then it was

properly sealed. PW71 then took out another plastic cover from MO64 bag.

It contained two covers. First cover contained a stone bar which is marked

as MO20. Yet another cover was also there, in which three small Ganesh

statuettes (figurines) were placed. They are marked as MO19 series.

119. Next box, meroon in colour (MO120), when opened found to

contain old coins and metal bars. They are marked as MO121 series and

MO122 series. A meroon coloured box (MO123) was also taken out from

MO64 bag which contained an antique watch marked as MO21. After

recovering all these items at the instance of the 1 st accused while in

custody, a mahazar was prepared. It is also deposed to by this witness that

all the recovered items were properly wrapped up and sealed. PW28

deposed that the mahazar was read out and thereafter he signed. That

mahazar is marked as Ext.P75. Lease agreement pertaining to "Smayana"

taken on lease by the 1st accused is marked as Ext.P76 and it was

recovered as per Ext.P78 mahazar. PW28 was questioned by police and Crl.Appeal No.567 of 2014 and connected cases 90

his statement under Section 164 Cr.P.C. was also caused to be recorded,

which is marked as Ext.P77.

120. This witness was subjected to cross-examination ad nauseam

by the counsel for accused. In cross-examination by the learned counsel

for the 1st accused, PW28 deposed that he, for the first time, met deceased

Varma in February 2012 and he was introduced to deceased Varma by

CW35 Baiju. PW28 is a B.Sc. (Physics) graduate and during February

2012, he was working as computer mechanic. He was doing business at

Kodungallur, which he closed down in 2011. He knew deceased Varma's

phone number. PW28 too believed that he and CW35 Baiju could get

commission, if the gems and stones were sold. In cross-examination,

PW28 emphatically stated that he had shown the gems possessed by

deceased Varma 2-3 times to various persons who came to

Thiruvananthapuram for a deal. This witness also deposed that deceased

Varma made them believe that he belonged to a royal family and the gems

in his possession were very costly. When cross-examined, PW28 deposed

that one Ganeshan and PW12 examined the stones and found that they

were not as costly as projected by deceased Varma. Many persons had

seen the gems from Jas Hotel, Thiruvananthapuram. PW28 deposed that

one Rajendran and Vassim came from Bombay and examined the stones,

but they did not turn up later. It has come out in evidence that at the

instance of PW28 many persons had shown interest in the deal. Nowhere

in the cross-examination it was suggested to PW28 that he had no Crl.Appeal No.567 of 2014 and connected cases 91

connection with the intended gem trade and no previous occasion to find

the gems, now identified by him, kept in the possession of deceased

Varma. Instead, what we find from cross-examination is that he also tried to

dupe the prospective customers with inferior quality gems, which he

denied. Suggestions that he did not witness recovery of the gems and

precious stones as pointed out by the 1st accused while in custody and he

was not present when Exts.P75 and P78 mahazars were prepared are

strongly denied by him.

121. To a specific question, he answered that he witnessed

recovery of the gems from the 1st accused and saw preparation of Ext.P77

mahazar from latter's house at Poneth Lane, Ernakulam. 1 st accused was

residing in that house is an undisputed case as he himself admitted the

same as DW2.

122. When cross-examined by counsel for the 4th accused, PW28

deposed that he came to Ernakulam on 15.01.2013 for watching a cricket

match at International Stadium, Kaloor. He could not get a ticket for the

one day cricket match between India and England. It is his case that he

came to the 1st accused's house because PW71 had called him for

identifying the gems. PW28 deposed that he identified the gems and

stones belonging to deceased Varma for the first time in front of PW71.

Thereafter, he gave a statement on 15.01.2013. Later, his statement under

Section 164 Cr.P.C. was recorded by a Magistrate. He was again

questioned by police. When the defence counsel suggested that PW28 Crl.Appeal No.567 of 2014 and connected cases 92

falsely deposed before court in respect of matters not seen by him, he

asserted that he saw the recovery of huge quantity of gems and stones

from the 1st accused's house. In spite of searching cross-examination, we

find no tangible reason to discard PW28's testimony with regard to

recovery of the gems and precious stones kept in MO64 bag secreted in

an almirah in the house, wherein admittedly the 1st accused resided at the

material time.

123. In this regard we may mention about the evidence of PW33

Mohammed Shah, who was the manager of Jas Hotel,

Thiruvananthapuram. He knew deceased Varma because since five years

before his death he used to visit the hotel frequently. He used to check in

the hotel for meeting prospective customers in the gem trade. He used to

carry a briefcase always. This witness identified MO10 briefcase as that of

deceased Varma's. Testimony of this witness fortifies the deposition of

PW28 that deceased Varma used to meet customers from the said hotel.

PW33 further deposed that usually Varma was accompanied by 2-3

persons.

124. PW34 Krishnaprasad worked as the receptionist in Dubai

International Hotel, Thiruvananthapuram. He produced guest registration

card and room bills before police. He is a witness to Ext.P53 mahazar

evidencing recovery of records from the hotel to show that deceased

Varma used to stay there. His testimony also renders support to the

prosecution case that there were lot of customers fancied by the gem deal. Crl.Appeal No.567 of 2014 and connected cases 93

125. On an over all assessment of the testimony of PW26, it will be

convincingly clear that at the time of arresting accused 2 to 4, police had

seized gems and stones from their bags. Pertinent aspect is that they

offered no explanation with regard to their possession of the gems and

stones. Testimony of PW28 clearly shows recovery of large number of

gems and stones from MO64 bag, handed over to police by the 1 st

accused, while in custody, and the articles recovered therefrom. The bag

was kept in an almirah in the 1st accused's house. PW28 proved that the

gems and stones, recovered from the 1 st accused under Section 27 of the

Evidence Act, belonged to deceased Varma. The testimony of these

witnesses remain credible and believable despite lengthy cross-

examination.

126. Needless to expatiate the principles regarding how much

information received from an accused may be proved under Section 27 of

the Evidence Act as they are well covered by a catena of decisions. Still,

we may make a passing reference to the relevant provisions for the sake of

completion. Absolute prohibition contained in Section 25 of the Evidence

Act against proving any confession made to a police officer is whittled

down under two circumstances mentioned in Sections 26 and 27 of the

Evidence Act. Section 26 of the Evidence Act says that a confession made

by a person to a police officer, while in custody, shall be proved against

him, if it is made in the immediate presence of a Magistrate. Section 27

would clearly show that it is a proviso to Sections 25 and 26 of the Crl.Appeal No.567 of 2014 and connected cases 94 Evidence Act and it provides an exception to the rule enacted in the

aforementioned Sections. Section 27 is intended to govern both Sections

25 and 26 of the Evidence and to have a general application to information

received from an accused person in custody of the police and to allow

proof of information amounting to a confession received from such a

person, whether given to a police officer or not. When any fact is deposed

to as discovered in consequence of an information received from a person

accused of any offence, in the custody of a police officer, so much of the

information, whether it amounts to a confession or not, as relates distinctly

to facts thereby discovered, may be proved under Section 27 of the

Evidence Act.

127. In order to prove recovery of large quantity of gems and

stones from a bag kept in the 1 st accused's house, prosecution relied on

the testimony of PWs 28 and 71. As mentioned above, PW28, despite a

tough cross-examination, adhered to his versions that he witnessed

recovery of the gems and stones, involved in the crime, as pointed out by

the 1st accused while he was in the custody of police. Besides, PW71 at

the time of examination clearly proved Ext.P75 mahazar relating to

recovery of the aforementioned articles and he also proved Ext.P75(a)

confession by the 1st accused, made while in custody, which led to

recovery of the articles. Facts that the 1 st accused was aware about

secreting the gems and stones involved in the crime at a particular place

and it was recovered as pointed out by him while in custody, have been Crl.Appeal No.567 of 2014 and connected cases 95

deposed to by PWs 28 and 71 with certainty. In spite of searching cross-

examination, their versions remain believable. Therefore, we find no

infirmity in proving this case by the prosecution against the 1st accused.

128. We may also refer to the case set up by the 1 st accused

regarding the manner in which he came into possession of a sizeable

chunk of the gems and stones. When examined as DW2, he deposed that

PW12 started pestering him for money, which he had spent anticipating

furtherance of the deal. PW12, when came to know that the gems

possessed by deceased Varma were fake, called the 1st accused to his

house and manhandled. Thereafter, the 1st accused went to deceased

Varma's house at Thiruvananthapuram and questioned him. According to

DW2, he even assaulted Varma for attempting to dupe him. When the 1 st

accused threatened Varma of resorting to a criminal action, latter

dissuaded him by handing over some gems and stones and advised him to

sell them out to some buyers for realising money. We find it very hard to

believe this version of the 1st accused. In our view, he failed to offer a

believable explanation for possessing large quantity of gems, stones,

figurines, etc. which are proved to be once possessed by deceased Varma.

Going by the evidence of PW28 and the mahazars, we find that a lion's

share of gems and stones should have been handed over by Varma to the

1st accused for securing a sum around `5,00,000/-, which we think, highly

improbable and unrealistic. It is the case of the 1st accused himself that

deceased Varma had projected his possession of gems worth crores. No Crl.Appeal No.567 of 2014 and connected cases 96

sensible man would have handed over a sizeable quantity of his assets

merely if someone threatened him to file a case for attempting to cheat.

Story put forward by the 1st accused for possessing this much quantity of

gems and stones from deceased Varma's collection on mere threatening is

quite unnatural and unbelievable.

129. Insofar as seizure of the gems and stones from accused 2 to 4

is concerned, learned senior counsel for the accused 3 to 5 and learned

counsel for the 2nd accused raised a contention that the alleged seizure is

highly artificial. To appreciate this contention, we may refer to the testimony

of PW27 Chadrakala too, besides the testimony of PW26 which we had

already mentioned. Prosecution case is that in search of the 1 st accused,

PW71 went to Bangalore with police party. On enquiry, it was revealed that

the 1st accused was staying in Susheela Paying Guest Accommodation.

PW27 Chandrakala was running the paying guest accommodation at

Bangalore. When PW71 and party reached in the paying guest

accommodation, they found accused 1 to 5 together in room no.116. After

questioning them, they were brought down to Thiruvananthapuram from

Bangalore on 04.01.2013. It is the prosecution case that when they were

taken from Bangalore for questioning, accused 2 to 4 took their bags with

them. On 05.01.2013, after reaching at PW71's office at

Thiruvananthapuram and after identifying the accused persons through

some witnesses, their arrest was recorded at 3.55 p.m. and their bodies

and personal belongings were searched. Prosecution rightly has no case Crl.Appeal No.567 of 2014 and connected cases 97

that the seizure of articles from accused 2 to 4 could be regarded as a

recovery under Section 27 of the Evidence Act.

130. PW27 deposed in chief-examination that she had handed over

Ext.P43 admission register and Ext.P44 receipt book. In Ext.P43 (at page

no.18), sl.nos.149 to 151 are the entries pertaining to accused 2 to 4,

showing that they were staying in Susheela Paying Guest Accommodation

in room no.116. It is also entered in it that they had paid `6,500/- towards

the rental charges. PW27 identified accused 2 to 4 at the time of trial.

Ext.P44 is a receipt book. Receipt no.580 was issued in the name of 3 rd

accused. Receipt for `13,000/- was given and PW27 deposed that `6,500/-

was the rent for a month and `6,500/- was advance payment. That is

marked as Ext.P44(a). Receipt no.581 was issued in the name of the 4 th

accused. Exts.P44(b) and P44(c) were also marked. Ext.P45 mahazar

prepared at the time of recovery of Exts.P43 and P44 also contain her

signature. She affirmed her signature on Ext.P45. It is the case of PW27

that five persons were found in the room when police came to seize the

records. She identified them from the dock.

131. PW27 was subjected to a penetrating cross-examination by

the counsel for 4th accused. It was suggested in cross-examination that

PW27 had given accommodation to accused 2 to 4 in the fourth floor. This

fact is admitted by the witness. She further deposed that anybody going to

room no.116, allotted to accused 2 to 4, only could have passed through

the front desk of her office in the ground floor. Susheela Paying Guest Crl.Appeal No.567 of 2014 and connected cases 98

Accommodation has a capacity to board 80 persons. When suggested to

PW27 that other two persons found out by police along with accused 2 to 4

could have been brought by police themselves, she denied it. It is PW27's

version that along with police party, she came and opened the door to find

five persons inside the room and she became perplexed on finding some

strangers. Defence case that police brought accused 1 and 5 to the room

is stoutly denied by this witness. When the defence counsel asked whether

police had taken all the five persons in custody, this witness deposed that

since police wanted to question them, they were asked to accompany the

police.

132. In this context, it is relevant to note the accused's case that if

police had zeroed in on five persons from PW27's paying guest

accommodation, they could have arrested the accused then and there.

Prosecution has no case that PW71 effected arrest of the accused 1 to 5

from Bangalore, nor did the police produce them before any Magistrate at

Bangalore. It is the version of PW71 that they brought the accused 1 to 5

along with them to Thiruvananthapuram for questioning. PW71 deposed

that they were arrested only after thorough questioning, identifying them

through witnesses and ascertaining their complicity in the crime.

133. Chapter V of the Cr.P.C., containing Sections 41 to 60A, deal

with arrest of persons. Arrest without warrant is an extreme step to be

taken by police in a case only when they gather reliable materials

indicating the complicity of a person in a cognizable offence. Spirit of the Crl.Appeal No.567 of 2014 and connected cases 99

law in Section 60A Cr.P.C. is that no arrest shall be made except in

accordance with the provisions of the Code or any other law for the time

being in force providing for an arrest. Arrest of a person is an invasion of

freedom guaranteed under Article 21 of the Constitution of India. Therefore,

the accused cannot be heard to say that PW71 should have arrested them

immediately when he found them in room no.116 of PW27's paying guest

accommodation. We are satisfied, on going through the evidence adduced

by the investigating officer, that the police officers, who went to Bangalore,

had sufficient reasons to verify facts and figures to ascertain involvement of

the five persons to find out whether they had any role in the crime.

134. PW27 answered that when police took them to Kerala, she did

not return the advance money paid by the accused and it was handed over

to the 2nd accused in the presence of police on another occasion. PW27

deposed in cross-examination that when police asked accused 2 to 4 to

accompany them, the room was locked and key was handed over to PW27

for safe custody. Regarding preparation of Ext.P45 mahazar, PW27

deposed that it was prepared in her presence and the same was read over

to her before signing. On an over all assessment of the testimony of

PW27, it will be clear that all the five persons involved in the crime were

seen together in room no.116 of Susheela Paying Guest Accommodation

and PW71 and party brought them down to Thiruvananthapuram with their

luggages. We agree with the defence case that what was found out from

the possession of accused 2 to 4 cannot be qualified as a recovery Crl.Appeal No.567 of 2014 and connected cases 100

referable to Section 27 of the Evidence Act. However, seizures effected

from accused 2 to 4 as proved by PWs 26 and 71 and probabilised by

PW27's evidence remain unshaken despite a searching cross-examination.

It is all the more important for the reason that no believable explanation

could be given by accused 2 to 4 for keeping gems and stones in their

bags. Testimony of PW11 is also relevant in this regard insofar as it relates

to the 2nd accused. In short, we find that the court below is justified in

relying on the recovery and seizure of gems and stones from accused 1 to

4 as a clinching circumstance against them.

135. Learned counsel for the accused 1 and 2 and also the learned

senior counsel appearing for accused 3 to 5 vehementally contended that

the accused persons would not have ventured to rob gems and stones

from the custody of deceased Varma because the 1 st accused, even

according to the prosecution, came to know much prior to the incident that

those items are worthless. It is therefore contended that no sensible

person would have attempted to snatch away fictitious stones from Varma.

So much so, nobody would have plotted to kill Varma. 1 st accused when

tendered evidence as DW2 asserted that persons came down from Delhi,

at the instance of PW12, had verified the gems and opined that they were

fake. Knowing that fact PW12 and his men manhandled the 1 st accused

for which he raised a protest against Varma. At that time, it is said, Varma

handed over certain gems and stones to 1st accused and they were

recovered from his possession by PW71. We have already found that his Crl.Appeal No.567 of 2014 and connected cases 101

plea regarding handing over of huge quantity of gems and stones by

deceased Varma to the 1st accused is highly improbable and not

believable. However, learned counsel argued that when 1 st accused knew

that the gems and stones were worthless, he would not have tried to grab

them by taking recourse to an extreme step of killing Varma. If that be so,

other accused also might not have had any role.

136. In this context, we may refer to the testimony of PW12, who

said that what he meant by "fake" about the gems did not mean they were

spurious or worthless, but articles of lesser value. PW28 deposed that the

gems were found to be of an inferior quality than claimed by deceased

Varma. These witnesses did not testify that the material objects exhibited in

this case (gems and stones) were totally worthless.

137. Let us now consider the evidence relevant in this context

tendered by PW35 Priya Mohan and PW36 Balaraman.

138. Learned counsel appearing for the accused raised a serious

contention that prosecution did not take any step to send the recovered

gems and stones to a Gemmologist to determine its purity, clarity and

worth; instead the articles were sent to Mineralogy and Gem Testing

Laboratory, Thiruvananthapuram under the Mining and Geology

Department of the State of Kerala. All the learned counsel challenged the

competence and know-how of PWs 35 and 36 to assess value of the

gems. Per contra, learned prosecutor would contend that they have

sufficient expertise in examining and finding out inherent quality of the Crl.Appeal No.567 of 2014 and connected cases 102

gems. Further, they are the Government agency authorised to examine

such articles.

139. PW35 Priya Mohan was the Geologist in-charge of Mineralogy

and Gem Testing Laboratory, Thiruvananthapuram. She closely examined

the gems and stones sent for analysis by the investigating officer in this

case. She issued a consolidated report after examining 3647 stones,

seized during the course of investigation, along with one elongated stone

bar and three figurines (statuettes) of Lord Ganesha. In her consolidated

report, 17 test reports were also appended. Reports pertaining to each

bunch of the gem stones sent for analysis have been separately marked as

Exts.P56 to P72 series. Material objects referred to above were identified

by PW35 from court at the time of her examination. She deposed that

Corals, Natural Emerald, Ruby, Sapphire, Yellow Sapphire, Pearl, etc. were

included in the items scrutinized by her.

140. From the reports annexed to Ext.P55, it can be seen that

Kyanite, Synthetic Star Sapphire, Pearl (probably cultured), Aquamarine,

Moonstone, Lolite, Corundum, Zircon, Grossular Garnet, Glass Filled Ruby,

Synthetic Ruby, Natural Ruby, Natural Sapphire, Aventurine Quartz,

Chrysoberyl Cat's eye, Malachite, Artificially coloured Yellow Sapphire,

Natural Quartz, Natural Spinel, Peridot, Sphene, Glass, Natural Amethyst

(Quartz), Diopside Cat's Eye, Chalcedony, Synthetic White Sapphire, etc.

were present in the articles forwarded for analysis. All the items are

specifically identified by this witness at the trial. Crl.Appeal No.567 of 2014 and connected cases 103

141. When cross-examined by learned counsel for the 1st accused,

PW35 deposed that she was not competent to decisively mention the

price of each item. Defence case is that the articles examined by PW35

are ordinary stones, commonly available at a cheap rate in Indian markets.

When suggested by the defence counsel that these stones are usually

used for decorating inside the aquariums, PW35 answered that Moon

Stones are treated as gems. She also deposed that there are different

varieties of Moon Stones having varied prices. PW35 admitted that cost of

the gems could be determined only by an expert gem appraiser. She

asserted that there was no qualified gem appraiser working in the

Government service. To a specific question put by the counsel for 1 st

accused, PW35 answered that in gem trade, there is a possibility of

committing cheating on a buyer. It is her version that whether a man could

be duped or misled will depend upon his intellectual capacity and common

sense.

142. When PW35 was cross-examined by the learned counsel for

accused 2 and 4, she answered that she had prepared a worksheet at the

time of examination. It is contended that non-production of the worksheet

will weaken PW35's evidence. We are unable to accept this defence

contention in the light of her reliable testimony based on scientific data

furnished in the reports. She stated that Refracto Meter, Polariscope, UV

Lamp, Geological Microscope, Prism Spectroscope, etc. were used for

examining each of the stones. Despite a searching cross-examination on Crl.Appeal No.567 of 2014 and connected cases 104

this witness, we do not find any aspect to infer that her examination was

either unscientific or imperfect. At the time of cross-examination, she

asserted that she was appointed by the Government as Geologist and she

was given an additional charge of the Gem Testing Department under the

Mining and Geology Department.

143. In the re-examination, difference between Gemmologist and

Geologist is brought out. According to PW35, a Geologist is a person who

studies about various earth progress, which includes formation of minerals

and their identification. Branch of Geology deals with formation of minerals;

their identification is Mineralogy. All gem stones are minerals. Gemmology

is just a branch of Mineralogy. On an evaluation of evidence tendered by

PW35, we are convinced that she was competent to examine the materials

sent up for analysis and to find out the nature and character of the gems

and stones. However, she has no case that she had any expertise in fixing

value for the gems and precious stones.

144. PW36 Balaraman was the Director, Mining and Geology

Department. During his tenure, Deputy Director was Shri D.P.Sreekumar

and Additional Director was Shri Prabhakumar. As Director, PW36 sent

reports to the police officers. He identified his signatures on Exts.P55 to

P71. He identified the signatures of Shri D.P.Sreekumar and Shri

Prabhakumar. Forwarding letters signed by these officers are included in

Ext.P72 series (15 nos.). PW36 deposed that he did not conduct any test.

According to his testimony, Gemmology is a specialised branch of science Crl.Appeal No.567 of 2014 and connected cases 105

dealing with identification and categorisation of stones. He stated that the

Department had no official valuer. PW36's testimony supports the version

of PW35.

145. When the evidence given by PWs 35 and 36 are considered

together, it will be clear that the articles recovered and seized from the

accused were properly analysed and they are not worthless glass pieces

as contended by the accused. This also weakens the defence case that the

1st accused would not have ventured to plunder them. It has come out in

evidence that accused 2 to 4 were possessing quite a number of gems and

stones, which were in the custody of deceased Varma. To sum up,

recovery and seizure of the material objects from the possession of

accused 1 to 4 are properly proved. Besides, the defence case that the

gems and stones exhibited in this case are completely worthless is also

rendered unacceptable by the testimony of aforementioned witnesses.

146. Another important circumstance against the accused pointed

out by the learned prosecutor is obtainment of finger impressions of

accused 2 and 3 from the crime scene. PW71, during examination-in-chief,

deposed that at about 4.00 p.m. on 24.12.2012 he brought the Scientific

Assistant, FSL, the Scientific Assistant, DCRB, Thiruvananthapuram

(PW48) and the Finger Print Expert (PW38) to the crime scene. Besides, a

police photographer (PW39) was also arranged.

147. PW38 Shri L.S.Lohi was the Finger Print Expert in the Single

Digit Finger Print Bureau, Thiruvananthapuram City. He deposed that on Crl.Appeal No.567 of 2014 and connected cases 106

24.12.2012 he visited the crime scene and developed 30 chance prints

from the scene of occurrence. PW65 Shri S.Anil, Tester Inspector in the

Bureau gave Ext.P79 preliminary report to the investigating officer. That

was produced before the Magistrate concerned on 10.01.2013. In Ext.P79,

PW65 has mentioned that PW38, Shri Shiburaj (Finger Print Expert) and

Shri V.V.Vivekanandan (Finger Print Searcher) of the Single Digit Finger

Print Bureau, Thiruvananthapuram City had inspected the crime scene and

developed 30 chance prints. Ext.P79 would show that out of 30 chance

prints obtained, 15 prints were found unfit for comparison. From the

remaining 15 chance prints, four were found identical with the finger

impressions of Rakhil (3rd accused) and one chance print was found

identical with the right index finger print impression of Ajeesh (2nd accused).

Ext.P79 shows that the 3rd accused's left middle finger impression, left ring

finger impression and left thumb impression were found matching with the

four chance prints taken from the crime scene. Nobody can dispute that

analysis of finger print is a well developed science.

148. Learned counsel appearing for the accused strongly objected

to Ext.P79 report saying that it was not properly proved. It appears from

the deposition that the same contention was taken at the time of trial as

well. But, that may not hold good. Author of Ext.P79 was examined as

PW65 to prove the same. Apart from that PW38 testified that Shri S.Anil

(PW65) was working in his team and he knew his signature.

149. We may now refer to the Kerala Identification of Prisoners Act, Crl.Appeal No.567 of 2014 and connected cases 107

1963 (in short, "Act of 1963"). Section 3 speaks about taking

measurements, etc. of convicted persons. No doubt, this Act applies to

persons apprehended at the crime stage as well. "Measurements"

according to Section 2(a) of the Act of 1963 includes finger impressions

and foot print impressions. Section 4 may be relevant for our purpose,

which reads as follows:

"Taking of measurements, etc. of non-convicted persons.- Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner."

150. After apprehending the accused persons on 05.01.2013,

during the course of investigation, their finger impressions were taken.

Ext.P80 letter issued by PW38 to the Assistant Commissioner of Police,

Crime Detachment, Thiruvananthapuram City dated 15.03.2013 would

show that he inspected the crime scene along with other persons named

above and developed 30 chance prints from various articles likely to have

been handled by the culprits, which includes plastic water bottles, plates,

glasses, tables, chairs, briefcase, doors, windows, car found parked in the

porch, etc. It is mentioned in Ext.P80 that police photographer had

photographed the chance prints on the same day. Further, the finger

impressions of accused 2 and 3, taken after their arrest and provided in the

finger print slips, were found matching with some of the 15 chance prints

identified from the crime scene. What is mentioned in Ext.P79 has been Crl.Appeal No.567 of 2014 and connected cases 108

reproduced in Ext.P80 which was properly proved through PW38. In

Ext.P80, PW38 clearly mentioned the reasons for his opinion for matching

the chance prints with that of accused 2 and 3. Exts.P81 series and P82

series are the enlarged photo impressions of the finger prints subjected to

analysis. Ext.P83 is the submission of photographic enlargements by the

Tester Inspector to the Assistant Commissioner of Police,

Thiruvananthapuram City. These documents, coupled with the testimony of

PW38, would show that 15 chance prints, out of 30 obtained from the

crime scene, were found matching with that of the accused 2 and 3.

151. When cross-examined by counsel for the 1st accused, PW38

deposed that only five chance prints could be matched with that of accused

2 and 3. Stated precisely, four prints matched with the 2nd accused's

impressions and one with the 3rd accused. Lot of questions were asked

regarding remaining 10 chance prints. PW38 answered that remaining 10

chance prints did not tally with anyone. All the prints were compared with

the records kept in the Finger Print Bureau, but he could not find any of

them tallying with the recorded finger prints.

152. When cross-examined for the 5th accused, PW38 affirmed that

he had gone to the place of occurrence and he was very much involved in

the process of taking finger impressions. One of the main contentions

raised by the learned senior counsel for the accused 3 to 5 is that no

contemporaneous report was submitted by PW38 to show that he had

collected finger impressions on 24.12.2012 itself. It is pointed out that Crl.Appeal No.567 of 2014 and connected cases 109

Ext.P79 is dated 09.01.2013 and Ext.P80 is dated 15.03.2013. According

to the learned counsel, chance of the investigating officer manipulating

finger impressions after arresting the accused persons on 05.01.2013

cannot be ruled out. Such a possibility is multiplied for the reason that on

09.01.2013 the accused were in police custody. It has come out in

evidence that after apprehending the accused, they were taken to the

crime scene and to the nearby house of PW3. For these reasons, the

learned counsel argued, the chance prints said to have been obtained on

24.12.2012 should have been mentioned in a report promptly made and

absence of such a report would cast a serious doubt in the prosecution

case.

153. According to PW38, he received finger print slips of the

accused only on 09.01.2013. It is common knowledge that without taking

finger print of the suspect, the chance prints obtained from a crime scene

could not be compared. If we go by PW38's evidence, the chance prints

taken on 24.12.2012 could be analysed for the first time on 09.01.2013

because he received the finger print slips of the accused only on

09.01.2013. To a specific question, he repeated his stand that finger print

slips of the accused reached in the Finger Print Bureau only on

09.01.2013. Therefore, we cannot discard the testimony of PW38 and the

materials in Exts.P79 to P83 series for the reason that there is no

contemporaneous report to show that finger prints were collected from the

scene of occurrence on 24.12.2012 itself. This is all the more clear from Crl.Appeal No.567 of 2014 and connected cases 110

reliable testimony of PWs 71 and 38.

154. Another line of cross-examination is that the report did not

show from where the chance prints were obtained. According to PW38,

chance prints were taken from various parts inside the house and they did

not specifically state as to which chance print was taken from which

particular place. In our view, that may not be a reason to discard the

testimony of PW38 and contents of the reports which are found to be

reliable otherwise. Possibility of police officers manipulating finger prints of

the accused is also denied by this witness.

155. PW65 S.Anil is the Tester Inspector, Single Digit Finger Print

Bureau, Thiruvananthapuram City. He has no case that he inspected the

crime scene along with PW38, Shri Shiburaj (Finger Print Expert) and Shri

V.V.Vivekanandan (Finger Print Searcher). They collected 30 chance

prints and PW65 examined them. He prepared Ext.P79 preliminary report.

It bears his signature. He also deposed that 15 chance prints were found

unfit for comparison. PW65 agreed with the opinion of PW38. PW65

forwarded a report to the Assistant Commissioner of Police, Crime

Detachment, Thiruvananthapuram City. Ext.P83 is the report. Although the

chance prints were collected on 24.12.2012, their detection could be done

only after receipt of the finger prints of the suspects. Testimony of this

witness, along with that of PW38, would support the prosecution case that

15 out of 30 chance prints collected from the crime scene were closely

examined with the finger impressions of the accused persons obtained Crl.Appeal No.567 of 2014 and connected cases 111

after their arrest and the finger impressions reached the Finger Print

Bureau only on 09.01.2013. On the same day, PW65 submitted Ext.P79

report. Therefore, we find no infirmity in not submitting a contemporaneous

report any day before 09.01.2013 as contended by the defence. Presence

of the accused 2 and 3 in "Omkar" on the date of occurrence is fortified by

the testimony of these two witnesses and reports mentioned above. It is

true, the prosecution has a case that some of the accused persons had

visited "Omkar" on earlier occasions as well. However, the defence has no

such case. Accused 2 and 3 do not admit that they ever went to "Omkar".

In the light of these materials, we are not inclined to accept the arguments

that the chance prints might have developed at various places in "Omkar"

on account of the accused's previous visits. Therefore, presence of

accused 2 and 3 in the house on 24.12.2012 is largely probabilised by

recovery of the chance prints from the crime scene.

156. Learned senior counsel for the accused 3 to 5 drew our

attention to Kerala Police Circular No.15/99 (No.D12-13079/88 dated

11.07.1988) and Circular Memorandum issued from the Office of the

Additional Director General of Police, Modernisation, States Crime

Records Bureau, Thiruvananthapuram dated 05.06.1996. In Circular

No.15/88, details regarding functioning of Single Digit Finger Print Bureau

has been delineated. As per Clause 17, as and when a print is identified at

Single Digit Finger Print Bureau, a report of identification should be sent to

court immediately. This shall be followed by expert's opinion with Crl.Appeal No.567 of 2014 and connected cases 112

photographic enlargements of the relevant prints within a fortnight. In this

case, we have seen that the directions in Circular No.15/88 have been

complied with by PWs 38 and 65.

157. From Circular Memorandum dated 05.06.1996, it is pointed by

the learned senior counsel that if finger print impressions are not identical

the reasons for non-identity (difference in pattern, ridge characterisation,

etc.) should be noted in the written opinion. On this basis, it is argued that

no valid reason has been mentioned by the experts for discarding 10

chance prints out of 15 selected for examination. PWs 38 and 65 have

clearly mentioned that despite their earnest efforts, they could not unearth

identity of the maker of those prints. For these reasons we are not inclined

to accept the defence case relating to procedural violations in collecting

and examining the finger prints from the crime scene.

158. Now, we may move on to another important circumstance

brought out against the accused. Prosecution heavily relied on the CDRs

to connect the accused with the crime. Evidence tendered by the

prosecution witnesses in this regard was accepted by the trial court. In fact,

the prosecution has a case that accused 1 and 3 have made preparations

for committing the offences by forging documents to secure a mobile

phone connection bearing no.7411790579. Call data pertaining to this

number from 11.12.2012 to 31.12.2012 has been produced (Ext.P141). It is

duly certified under Section 65B of the Evidence Act. Ext.P142 series are

the reports showing call details in respect of the aforementioned phone Crl.Appeal No.567 of 2014 and connected cases 113

number. Ext.P114 is a mahazar prepared by PW71 for recovering call

details relating to mobile phone nos.9902827088, 7411790579 and

8891553507.

159. In view of Section 40 IPC, an attempt to commit an offence

constitutes an offence and in the absence of an express provision as to

punishment for attempt, it is punishable with the aid of Section 511 IPC.

But, preparation, except when it is a dacoity, simplicitor is not an offence.

Dividing line between preparation and attempt is really thin. It has to be

decided with reference to the facts and circumstances in each case

whether an act would amount to a mere preparation to commit an offence

or an attempt. Prosecution has a case that the accused had made lot of

preparations before committing the offence and securing a mobile number

by perpetrating forgery is one of the instances of preparation. Other

instances shall be dealt with in the succeeding paragraphs.

160. 1st accused plainly admitted that at the material time he was

using two mobile phones bearing nos.9946938127 and 9447952699. He

strongly denied any connection with mobile phone no.7411790579.

161. In order to prove that the 1st accused secured mobile

no.7411790579 through the help of the 3rd accused by perpetrating forgery,

prosecution examined PW9 Praveen, PW21 Viswanathan and PW30

Remesh M.K.

162. PW9 at the relevant time was residing in a house at Poneth

Lane, Near Deshabhimani Junction, Ernakulam. He was working as DTP Crl.Appeal No.567 of 2014 and connected cases 114

operator in an internet cafe by name "Net Master", Kaloor. Said business

concern used to undertake DTP works and other works relating to

scanning, printing, photostat, spiral binding, etc. There was facility for

sending e-mails as well. PW9 deposed that he had three mail IDs, viz.,

praveen2671981@gmail.com., praveenc.1981@gmail.com. and

praveenc.1981@yahoo.com. According to him,

praveen2671981@gmail.com. was created by him for his official purposes

and other two are his personal mail IDs. He was questioned by police as

he had acquaintance with the 1st accused prior to the incident. PW9

deposed that the 1st accused used to come to his internet cafe for sending

e-mails and photos of gems and diamonds. 1st accused used mobile

nos.9946938127 and 9447952699 to contact him. On one day, 1st accused

and another man came to his internet cafe with a driving licence and a

passport size photograph. Photo pasted on the driving licence was

indistinct and hazy so that holder of the licence was not identifiable. Hence

the 1st accused and the other person demanded PW9 to paste the passport

size photo in the place of the unclear photograph. According to PW9, the

1st accused told him that the blurred photo was that of the person seen in

the passport size photograph and he wanted to have a proper licence.

Believing his words, PW9 scanned the photograph and pasted it on the

driving licence. He created an image file by scanning the photograph and

imprinted date of birth shown in the driving licence and then it was sent to

an e-mail ID, viz., rekhilsurya@gmail.com., as instructed by the 1st Crl.Appeal No.567 of 2014 and connected cases 115

accused. Prosecution case is that the above e-mail ID is that of the 3 rd

accused. PW9 testified in the same manner before a Magistrate under

Section 164 Cr.P.C. which is marked as Ext.P4.

163. Later, police officers from Vattiyoorkavu Police station came to

his internet cafe, along with the 1st accused. The computer hard disk which

was used by PW9 was seized. A mahazar was prepared for that purpose

and his signature was obtained. PW9 was directed to appear for giving a

statement before Dy.S.P., Peroorkkada. On 06.03.2013 he appeared and

he was taken to an internet cafe by name "Megabite", Peroorkkada. At that

time, Dy.S.P. and Cyber Cell Officers were present. PW9's mail box was

opened by using password given by him and screen shots of the mails that

he had sent were taken. 14 pages were taken as screen shots. A mahazar

was prepared for seizing the screen shots. That mahazar is Ext.P5. 14

screen shots taken at the instance of PW9 as above is marked as Ext.P6

series. PW9 emphatically deposed that the photographs seen on

Exts.P6(a), P6(c) and P6(d) are the same as the photograph brought by

the 1st accused. Ext.P7 image file was also identified by this witness.

164. Learned counsel for the 1st accused extensively cross-

examined this witness. When suggested that police might have threatened

to arrest and detain him unlawfully, he denied the suggestion and said that

he had no fear of retribution by police. Defence case that PW9's conduct

amounted to forgery cannot be accepted when we consider his evidence in

its entirety. PW9 asserted that he was misled by the 1 st accused and he Crl.Appeal No.567 of 2014 and connected cases 116

never intended to create a false document. He has gone to the extent of

saying that he landed in trouble only because of the misrepresentations by

1st accused. Suggestion that PW9 is an accomplice to the alleged forgery

is stoutly denied by him.

165. When cross-examined by counsel for the 3rd accused, he

denied the suggestion that police threatened him to create a false

document and Ext.P6 series are falsely created by him. Despite lengthy

cross-examination, no material could be brought out to impeach his

credibility.

166. PW21 Viswanathan was a tractor driver hailing from

Karnataka. Prosecution case is that through some dubious means, the 3 rd

accused obtained a photocopy of PW21's driving licence and the accused

1 and 3 together pasted photo of K.N.Venugopalan, mentioned in Ext.P48,

to create a false ID proof. PW21 deposed that his date of birth is

18.05.1985. His driving licence was issued in the year 2009. It was issued

from Kolar District in Karnataka. He was questioned by Karnataka police

as well as Kerala police. PW21 stated that the person seen on the

photographs affixed on Exts.P6 series and P7 was not known to him. But,

address shown in those documents was that of PW21. Date of birth shown

in Ext.P7 did not tally with his.

167. In cross-examination, PW21 deposed that his original driving

licence was not lost and only a xerox copy of the original licence was found

missing. Since he was in possession of the original licence, he did not file Crl.Appeal No.567 of 2014 and connected cases 117

any complaint to police. PW21 deposed that his lost xerox copy of the

driving licence was having a black and white photo. In spite of tenacious

cross-examination, testimony of this witness remains credible and it shows

that the screen shots of driving licence included in Exts.P6 series and P7

did not belong to him though they showed his address. Prosecution has a

definite case that these false documents are used by the accused 1 and 3

for securing mobile phone no.7411790579.

168. PW30 is the Senior Manager, Canara Bank, Kannur. He was

cited to prove the account opening form pertaining to K.N.Venugopalan,

whose photograph was used by the accused 1 and 3 to forge a driving

licence in order to furnish as ID proof for taking a mobile phone connection.

PW30 proved Exts.P47 and P48. Account opening form and statement of

accounts including ID proof pertaining to K.N.Venugopalan were proved

through this witness. When Ext.P6 series were shown to this witness, he

deposed that the photographs in Exts.P47 to 49 looked similar to those in

Ext.P6 series.

169. Even though this witness was searchingly cross-examined, no

material could be elicited to discard his testimony.

170. PW41 Sujith is the son-in-law of K.N.Venugopalan, whose

photograph was seen affixed on Ext.P6 series. When Ext.P6 series were

shown to PW41, he identified K.N.Venugopalan's photo. PW41 further

deposed that his father-in-law was maintaining an account with Canara

Bank, Kannur. Photographs seen on Exts.P48 and P49 were also identified Crl.Appeal No.567 of 2014 and connected cases 118

by this witness as that of K.N.Venugopalan. As per Ext.P85 mahazar, a

ration card pertaining to K.N.Venugopalan was seized by the investigating

officer. In spite of cross-examination, credibility of this witness could not be

shaken.

171. Learned prosecutor relied on the testimony of these witnesses

and the documents referred to above to contend that there are clear

indications of perpetrating forgery by accused 1 and 3 for falsely creating

documents to secure a mobile connection. As mentioned above, despite

lengthy cross-examination, the allegations came out through these

witnesses, supported by documents, remain unshaken.

172. We may make a mention of Ext.P129 series and testimony of

PW54 for the sake of completion of this discussion. Ext.P129 series would

show that two sheets of questioned documents (Q1 to Q5) and 18 sheets

of standard documents (S1 to S18 and A1 to A6) were sent for examination

to the FSL, Thiruvananthapuram. PW54 Dr.Sumi Mitra S., who was

working as Scientific Assistant (Documents) submitted Ext.P129 report. It

is the prosecution case that the prepaid customer application form

submitted for obtaining mobile connection bearing no.7411790579 was

filled up in the handwriting of the 3 rd accused. Specimen standard writings

were obtained from him on 16.03.2013, while he was in custody, on

separate sheets marked as S1 to S18. Questioned handwritings on the

application form were also examined by PW54. Result of examination is

the following:

Crl.Appeal No.567 of 2014 and connected cases 119

"2. The person who wrote the blue enclosed standard writings stamped and marked S1 to S18 probably also wrote the red enclosed questioned writings similarly stamped and marked Q1 and is subject to the verification of the original writings.

3. It has not been possible to arrive at a conclusion regarding the nature of alteration on the red enclosed questioned item stamped and marked Q2 in comparison with that of the blue enclosed standard items similarly stamped and marked A1 & A2 although the date of birth appears as 18/05/1965 and valid till date appears as 10/03/2028 (NT) in the questioned item stamped and marked Q2 and is subject to the verification of the original questioned document.

4. It has not been possible to express any definite conclusion regarding the production of the red enclosed questioned item stamped and marked Q3 in comparison with that of the blue enclosed standard items similarly stamped and marked A3 & A4.

5. It has not been possible to arrive at any definite conclusion regarding whether the photographs in the red enclosed questioned items stamped and marked Q4 and Q5 and the blue enclosed standard items similarly stamped and marked A5 & A6 are of same person or not."

In the report, reasons for her findings are substantiated.

173. When PW54 was examined, she proved the report. When it

was suggested to PW54 in cross-examination that the writings on

Ext.P129(c) series and the sample writings S1 to S18 are different and Crl.Appeal No.567 of 2014 and connected cases 120

therefore they could not be by a common author, she answered that in the

standard writings, reasonable variations alone were noticed. True,

examination of handwriting cannot be said to be a perfect science.

Evidence tendered by this witness may not be conclusive, but it

probabilises the prosecution case.

174. Now, coming back to the question, whether the 1st accused

used mobile phone no.7411790579?. When examined, PW11 Jaimol @

Pooja deposed that her phone number at the material time was

9947134421. Mobile phone used by PW10 Archa was bearing

no.9656967625. PW67 Ramachandran worked as Nodal Officer, Idea

Cellular Ltd, Kerala Circle. He deposed after looking into the call details

pertaining to mobile phone no.9947134421 from 24.10.2012 to 31.12.2012.

ID proof given for securing this number by PW11 is marked as Ext.P10.

CDR is proved through this witness and marked as Ext.P163. He asserted

that the CDR has been certified under Section 65B of the Evidence Act

(Ext.P163(a)).

175. PW67 deposed that at the relevant time, Airtel mobile phone

subscribers had no 3G facilities because the company had no licence.

Therefore, 3G subscribers of Airtel used Idea net work. When Ext.P86(a)

was shown to this witness, he deposed that one Sajith had submitted an

application for Airtel prepaid connection. He was examined as PW42. At

the time of chief-examination, he deposed that he submitted Ext.P86 series

application along with a copy of driving licence as ID proof for getting an Crl.Appeal No.567 of 2014 and connected cases 121

Airtel connection. It is his case that 9995225462 was the mobile number

allotted to him as per Ext.P86 series. He used the said number only for a

short period. Thereafter he kept the sim card in his house. Later, it was

given to the 3rd accused. According to the prosecution, PW42 lost the sim

card and it was somehow obtained by the 3 rd accused. But, this

prosecution case was not supported by PW42.

176. PW67 proved Ext.P165 series showing the call details

pertaining to mobile no.9526752380.

177. Prosecution case that the 3rd accused used mobile no.

9995225462, subscribed by PW42, is probabilised by the testimony of

these witnesses and records.

178. It has come out through the testimony of PW67 that one Libin

George was the subscriber in respect of mobile phone no.9961930763.

Call details pertaining to this number from 11.10.2012 to 31.12.2012 is

produced and marked as Ext.P166. This call details had been certified

under Section 65B of the Evidence Act and marked as Ext.P166(a).

Ext.P14 is the application form for the mobile connection submitted by

Libin George to Idea Cellular Ltd. Prosecution case is that this number was

used by the 2nd accused. Libin George is examined as PW13. He admitted

that he had an Idea Cellular connection bearing no.9961930763. But, he

lost the sim card in respect of the above connection. He came to know of

that fact only when police questioned him on the Christmas day in 2012.

He made the last call from 9961930763 on 21.10.2012. Crl.Appeal No.567 of 2014 and connected cases 122

179. Prosecution wanted to establish that the said phone

connection subscribed by PW13 came into the hands of the 2nd accused.

180. PW67 proved further that mobile no.9656967625 was

subscribed by PW10 Archa. Ext.P167 series are the documents pertaining

to this phone number. PW67 deposed that mobile no.8606516539 stood in

the name of the 2nd accused Ajeesh. This fact is spoken to by PW10 as

well. Ext.P168 series are the documents pertaining to this phone number.

181. In the cross-examination, this witness, relying on the materials

produced, adhered to the versions spoken in the chief-examination and

therefore, we find no reason to disbelieve him.

182. PW16 Aji Mathew Varghese was questioned by police in

connection with this case. He was the room mate of the 5 th accused. In the

chief-examination, this witness testified that by using his ID card, 5 th

accused had taken an Airtel connection bearing no.9008446019. 5th

accused was using a Tata Docom mobile connection too. According to him,

the service provider charged the 5th accused exorbitantly and therefore he

decided to take another connection for which he obtained ID card from

PW16 since he had no document to prove his identity. This witness

identified the 5th accused from court. PW16 deposed that he met the 5 th

accused lastly 4-5 days before Christmas in 2012. When enquired, PW16

understood that the 5th accused had gone to his native place. PW16 knew

the accused 3 and 4 as they were his senior students. This witness also

gave a statement under Section 164 Cr.P.C. Despite cross-examination on Crl.Appeal No.567 of 2014 and connected cases 123

this witness, his testimony that the 5th accused was using mobile phone

no.9008446019 taken in his name could not be effectively challenged. This

case is supported by PW29 Lithin, who is said to be a friend of 5th accused.

183. PW45 Sanal was the Nodal Officer in Vodafone Cellular Ltd. at

the material time. He produced the call details and application form

including ID proof pertaining to mobile phone no.9946938127 (used by the

1st accused) and 9946349097(used by the 4th accused). These documents

relate to a period between 11.10.2012 to 31.12.2012. This witness proved

Ext.P90 series. Ext.P90 is a letter given by this witness to the District

Police Chief. The call details are also certified under Section 65B of the

Evidence Act which is marked as Ext.P90(a). PW45 deposed that

9946938127 is the number subscribed by the 1st accused. Application

form, identity form, subscription form, etc. are proved through this witness

and marked as Ext.P91 series. Mobile phone no.9946349097 was issued

to the 4th accused. Ext.P93 series are the customer application form and

other documents submitted by the 4th accused. Call details pertaining to the

4th accused's phone is marked as Ext.P94 series.

184. When asked, PW45 answered that in order to co-relate the cell

ID shown in Ext.P94 with tower name in Ext.P95, one will have to look into

the 15 digit code number indicating the tower location where the subscriber

was located at a given point of time. This witness answered that each

tower has a unique cell ID code. Those cell ID codes, decoded with

reference to the corresponding location, are shown in Ext.P95. During Crl.Appeal No.567 of 2014 and connected cases 124

examination he deposed that mobile phone no.9946938127 (used by the

1st accused), shown in Ext.P92, was at Eroor-Ernakulam on 17.10.2012

between 10.57 to 11.02 a.m. as per the cell ID location. To a specific

question, PW45 answered that mobile number used by the 1st accused

was at Eroor between 7.49 to 7.53 a.m. on 24.10.2012. Likewise, he

proved various entries in Exts.P94 and P95 pertaining to the mobile

number of the 1st accused to show that he was moving from one location to

another on various dates. Important answer elicited from this witness is

that on 24.12.2012, mobile phone used by the 1 st accused was moving

from one place to another covered by various towers. From 10.03 a.m. to

11.12 a.m. the 1st accused's mobile phone was moving from one place to

another in Thiruvananthapuram. At 10.03 a.m. on 24.12.2012, the 1 st

accused's phone no.9946938127 was within the area of a tower at Pettah,

Thiruvananthapuram. At 10.40 a.m. the phone reached within the range of

Capital tower. At 10.44 a.m. the phone was at General Hospital Junction,

Thiruvananthapuram. Again at 10.57 a.m. the mobile phone went to a

location near Capital towers, Thiruvananthapuram. From 10.59 a.m. to

11.12 a.m. the said phone, as per Ext.P95, was within Pulimoodu tower.

PW45 stated that in order to verify the IMEI number in a mobile phone and

IMEI number in the CDR, one has to refer to the 14 digits in the 15 digits

number and the last digit is irrelevant because it will always be zero.

185. This witness was subjected to strict cross-examination.

Learned counsel for the 1st accused elicited answers from this witness that Crl.Appeal No.567 of 2014 and connected cases 125

the 1st accused's mobile number was moving between

Thiruvananthapuram Airport, Veli, Mannarkonam, Kanjirampara and

M.G.Road, Thiruvananthapuram on 27.11.2012. This witness stated that

when commissioning each tower, 15 digit cell ID (mobile switching centre)

will be updated. As per Ext.P92, on 24.12.2012, the first outgoing call

emanated from the 1st accused's phone no.9946938127 was at 12.15 a.m.

(night) and it was dialled to 8606516539 (2nd accused's number). The call

was made from Jewel Plaza, Kochi. Various calls received and sent out of

this mobile number was put to this witness by the learned counsel for the

1st accused during cross-examination for which he gave satisfactory

answers explaining the location of the phone. At 7.03 p.m. on 24.12.2012

the 1st accused's mobile was within the range of Raiban, Alleppey. Defence

suggestion that certain calls received by the 1st accused during a long time

interval were intentionally omitted from listing is denied by this witness.

186. Learned counsel for the 4th accused also cross-examined this

witness to bring out a possibility that the entries in the above documents

could be wrong. But, after cross-examination, we find no material elicited

either to disbelieve him or to find the CDR undependable.

187. PW59, Marshal D'cunha was the Nodal Officer in Tata Tele

Service Ltd. He produced the call details pertaining to three mobile phones

bearing nos.9902827088, 7411790579 and 8891553707. It is pertinent to

note that 9902827088 was used by the 4th accused. 8891553707 was used

by PW15 Roshan. Documents pertaining to mobile no.9902827088 (used Crl.Appeal No.567 of 2014 and connected cases 126

by the 4th accused) are marked as Exts.P135 and P136 series. Ext.P137

series are the CDR pertaining to the above number used by the 4th

accused. Cell ID list relating to this phone is marked as Ext.P138. This

number was last used on 29.11.2012. It was seen that the number was

roaming in Kerala circle. Thereafter, the connection became live again on

26.12.2012. At that time, it was within Karnataka circle from where it was

issued. In Ext.P137, it is mentioned that when cell ID was decoded, the

said number used by the 4th accused was located at Kaloor, Ernakulam.

Same phone was found active on many days within Eroor-Ernakulam as

well. Said phone number could be located near Penta Menaka and

Jawahar Lal Nehru Stadium, Ernakulam. Phone used by PW15 bearing

no.8891553707 was issued to him as per the records produced. Those

documents are marked as Ext.P139. CDR relating to this phone is

Ext.P140. Customer application copy is Ext.P20. This witness certified the

CDR pertaining to mobile no.7411790579. That is marked as Ext.P141.

Ext.P142 series are the call details regarding phone no.7411790579.

188. This witness was cross-examined thoroughly by the defence

counsel. But, no material could be elicited to show that the documents

produced and explained by him are unreliable. Though questions were put

regarding his competence to certify the entries under Section 65B of the

Evidence Act, we find no reason to doubt his authority.

189. In this context, we may refer to the testimony of PW15. He

was working as salesman in Doha Mobiles, Penta Menaka, Ernakulam. Crl.Appeal No.567 of 2014 and connected cases 127

According to his testimony, they were dealing with cheap mobile phones,

viz., some brands of Nokia and some handsets manufactured in China. He

deposed that two persons purchased mobile phones from his shop in 2012

and they purchased two phones, one a base model manufactured by Nokia

and the other one manufactured in China. He identified accused 1 and 2

from the dock and deposed that they were the persons who purchased the

phones. According to him, he did not issue any bill for the purchase, but he

entered the details of sale in a note book. Ext.P19 is the mahazar

pertaining to seizure of this note book. This witness admitted that his

phone number, at the material time, was 8891553507 as stated by PW59.

190. When cross-examined, this witness mentioned that so many

customers used to come to his shop and he had no special reason to

remember accused 1 and 2. It would be impossible for him to identify all

the customers who purchased phones in November, 2012. As pointed out

by the learned counsel for the accused, it may be difficult to rely on his

testimony to find that the accused had purchased phones from him and he

remembered their identity even without any special reason. Even if we

discard his testimony, it may not affect the strength of prosecution case

relating to use of the mobile numbers referred to above.

191. PW60 worked as Deputy General Manager, BSNL during the

relevant period. While he was working as the Nodal Officer, as directed by

the District Police Chief, he produced certified CDRs pertaining to

9447254165 (subscriber - Rajesh Kumar and used by Geetha (PW3)), Crl.Appeal No.567 of 2014 and connected cases 128

9447952699 (subscriber - Sreejith and used by 1 st accused), 9447144431

(subscriber - Dr.Bharath Chandran and used by the 6 th accused) and

9447972718 (subscriber and user - deceased Harihara Varma).

Documents pertaining to mobile phone no.9447254165 is Ext.P143 series.

Certificate attached to CDR relating to mobile phone no.9447952699 (1st

accused's phone) is Ext.P144. CDR is Ext.P145 series. Certificate

pertaining to mobile no.9447972718 is Ext.P148 and CDR is Ext.P149

series. Despite cross-examination, nothing could be brought to discard his

oral and documentary evidence.

192. PW64 Vasudevan was Nodal Officer, Bharathy Airtel Ltd.,

Kerala Circle. As directed by the District Police Chief, he produced

subscribers details and CDR pertaining to three mobile phone

nos.9995225462 (subscriber - Sajith P.V. and user 3rd accused),

9633254448 (subscriber and user Haridas, 6th accused) and 9008446019

(subscriber - Aji Mathew Varghese and user 5 th accused). This witness also

proved Ext.P86 series in respect of mobile no.9995225462 used by the 3 rd

accused. The documents pertaining to this mobile phone are marked as

Ext.P154 series. Documents relating to mobile no.9633254448 are marked

as Ext.P155 series. Documents relating to mobile no.9008446019 are

Ext.P156 series. Call details in respect of this phone is marked as

Ext.P157. Certification under Section 65B of the Evidence Act attached

thereto is Ext.P158(a).

193. This witness was subjected to a tough cross-examination by Crl.Appeal No.567 of 2014 and connected cases 129

the counsel for the 5th accused. Even though it was attempted to bring out

from this witness that the 5th accused's phone was not covered by the

CDR, he denied the suggestion. Similarly, after cross-examination by the

accused 4 and 6 also, no reason could be brought out to discard his

testimony.

194. To buttress the prosecution case that CDRs and other

documents produced will reveal movements of the accused together days

before, on the date of incident and after the incident, the prosecution

heavily relied on the testimony of PW52 Manikantan. He was a Civil Police

Officer working in the Special Investigation Support Team constituted by

Thiruvananthapuram City Police. As directed by the investigating officer,

PW52 and CW91 prepared a mobile phone analysis report and produced it

before the investigating officer. At the time of trial, marking this report was

seriously opposed by the defence counsel. Nonetheless, the trial Judge,

after overruling the objections, marked the report as Ext.P127. It can be

seen from Ext.P127 that 14 phone numbers, including the controversial

no.7411790579, were analysed. PW52 deposed that call data records

pertaining to 14 phone numbers mentioned by the investigating officer

were closely examined. For preparing Ext.P127, the decoded tower

location was also verified. Ext.P145 series would show the tower locations

in respect of mobile no.9447952699 from 11.10.2012 to 31.12.2012. Tower

locations in respect of mobile no.9447144431 could be seen in Ext.P147

series. Tower locations relating to mobile no.9447972718 are contained in Crl.Appeal No.567 of 2014 and connected cases 130

Ext.P149 series. Similarly, Ext.P159 certificate issued would show the

tower locations in respect of Airtel mobile phone nos.9995225462 and

9633254448 and Karnataka mobile no.9008446019. These phone

numbers were issued in the names of Sajith P.V. (PW42), Haridas K. (6 th

accused) and Aji Mathew Varghese (PW16) respectively. Ext.P169 is the

decoded list relating to Idea Cellular Ltd. phone numbers.

195. According to this witness, he only compiled the data contained

in the documents and submitted it before the investigating officer.

196. Learned counsel for the accused strongly objected to this

document by contending that PW52 was neither an expert in cyber

forensics nor had the authority of an investigating officer. Refuting these

contentions, learned prosecutor, relying on Section 168 Cr.P.C., contended

that the investigating officer is empowered to direct any subordinate police

officer to do any act relating to the investigation under Chapter XII of the

Cr.P.C. and in that event, the subordinate officer shall report the result of

such investigation to the investigating officer. Viewing from this angle,

Ext.P127 cannot be said to be one prepared by PW52 without any

authority. When cross-examined, he deposed that he is a graduate in

Sociology and passed some computer courses. As part of police training,

he had undergone telecommunication training as well. He further deposed

that Ext.P127 is prepared in the computer installed in the Office of the

Circle Inspector, Peroorkada. True, prosecution has the responsibility to

prove the relevance of entries in Ext.127, but the investigating officer's Crl.Appeal No.567 of 2014 and connected cases 131

authority to entrust a portion of the investigation to PW52 and his

compilation of data from various records collected during the investigation

cannot be questioned.

197. PW52 deposed that Ext.P127 contains details pertaining to

locations of mobile phone nos.9008446019, 9633254448, 9995225462

(Bharati Airtel Ltd.), 9447952699, 9447972718 (BSNL), 8606516539,

9526752380, 9656967625, 9947134421, 9961930763 (Idea Cellular Ltd.),

7411790579 (Tata Tele Ltd.), 9946938127 and 9946349097 (Vodafone

Cellular Ltd.). Besides, he had examined the locations of phone

no.9995225462 which was drawing 3G service from Idea Cellular Ltd.

198. In chief-examination, this witness deposed that from Ext.P127

which are the phones found within the coverage area of a particular tower

at a given time could not be found out. One of the obvious reasons is that

call details scrutinised were in respect of various mobile phone services

provided by different companies. Secondly, at a particular area, there can

be signal overlapping from two adjacent towers. It is also argued for

prosecution that if signal from a particular tower was weak and the same

from a distant tower happened to be strong, then a phone might pick up

signal from the stronger tower and for that reason there could be

approximation in locating the position of a subscriber at a given point in

time.

199. Questions relating to locations of various phones at various

dates and times were put to this witness. What is most relevant is the Crl.Appeal No.567 of 2014 and connected cases 132

presence of the phones, said to have been used by the accused, together

on 24.12.2012 and whether they were present in the same area at a given

point of time. With reference to Ext.P127, PW52 deposed that on

17.10.2012 between 10.57 to 11.05 a.m. mobile nos.9946938127 (used by

the 1st accused) and 8606516539 (used by the 2nd accused) were within

Eroor tower location. On 24.10.2012 between 6.50 and 16.31 hours,

mobile phone numbers used by accused 1 and 2 along with 9656967625

(used by PW10 Archa) and 9947134421 (used by PW11 Jaimol @ Pooja)

were within Eroor tower location. This probabilises the evidence tendered

by PWs 10 and 11 that they resided in "Smayana" at Eroor, a house

admittedly taken on lease by the 1st accused.

200. Similarly, on 03.11.2012 between 11.07 and 17.25 hours, the

mobile phones of accused 1 and 2 and PWs 10 and 11 were also located

within Eroor tower. On 04.11.2012 between 21.51 and 23.49 hours, mobile

phone no.7411790579, 2nd accused's admitted number, PW10's number

and PW11's number were found within Eroor tower location. Prosecution

has a case that one of the places from where conspiracy to commit the

crime was brewed is the house by name "Smayana" at Eroor, Ernakulam.

Conspiracy angle of the case will be discussed separately.

201. Admitted mobile numbers of the 2nd accused and PW11, along

with mobile no.7411790579, were found within a tower at Pathirappally in

Alappuzha between 15.45 and 16.35 hours on 05.11.2012. Another

important evidence tendered by this witness is that on 07.11.2012 between Crl.Appeal No.567 of 2014 and connected cases 133

10.25 and 12.24 hours, mobile no.7411790579, 1st accused's admitted

mobile nos. Viz. 9447952699 and 9946938127, 2nd accused's admitted

mobile no.viz. 8606516539, PW10's admitted mobile no. viz. 9656967625

and PW11's admitted mobile no.viz. 9947134421 were again within Eroor

tower. PW52 deposed that the 1st accused's admitted mobile numbers and

the disputed mobile no. viz.7411790579, which the 1 st accused said to be

using, along with the mobile numbers of other accused could be seen on

various dates moving together under the same tower locations. In this

context, it is to be remembered that the witnesses mentioned above and

the documents referred to earlier would show that the accused 1 and 3

together secured mobile no.7411790579 by submitting forged documents.

Movements of mobile no.7411790579 along with the admitted numbers of

the 1st accused and other accused persons probabilise the prosecution

case that fraudulently obtained number was also used by the accused for

camouflaging their identity.

202. On 27.11.2012, between 8.03 and 9.16 hours, the disputed

no.7411790579 could be seen along with the admitted numbers of the

accused 1, 3 and 4, deceased Varma and that of PW10 Archa. At that time,

mobile no.9961930763 alleged to have been used by the 2nd accused was

also present under the tower locations at Kaniyapuram, Veli,

Sankumugham Beach, Vanchiyoor, Kochuveli and Thiruvananthapuram

Airport. On various dates, the mobile phone numbers used by the accused

persons were located within various parts of Thiruvananthapuram City, Crl.Appeal No.567 of 2014 and connected cases 134

according to the testimony of PW52.

203. PW52 stated that on 23.12.2012 between 11.20 and 19.14

hours, mobile nos.9961930763 (said to have been used by the 2nd

accused), 8606516539 (2nd accused's admitted number), 9946349097 (4th

accused's number), 9008446019 (5th accused's number) and 9526752380

(admitted number of PW29) were within Eroor tower location. This

probabilises testimony of PW29 asserting his presence at "Smayana" and

conspiracy contrived between the accused, which we shall deal with later.

204. On the above mentioned day, between 20.23 and 21.55 hours,

mobile no. viz. 9961930763 (said to have been used by the 2 nd accused),

admitted mobile number of the 1st accused, viz. 9946938127, admitted

mobile number of 2nd accused, viz. 8606516539, admitted mobile number

of 3rd accused, viz. 9995225462 and 9008446019 (5th accused's mobile

number) were found within the area of a tower at Kaloor, Ernakulam. On

24.12.2012 at 4.36 a.m., mobile no.7411790579 could be seen located

within Kaloor Stadium tower. On the same day between 10.17 and 11.13

hours, the aforementioned mobile number was located near Ayurveda

College Junction, Thiruvananthapuram and also at Vanchiyoor North,

Thiruvananthapuram. On 24.12.2012 between 8.55 and 10.44 hours, the

mobile number said to have been used by the 2 nd accused,

viz.9961930763 was located at Veli, Statue, Pulimoodu and Museum tower

at Thiruvananthapuram. On 24.12.2012 between 10.03 and 11.12 hours,

the 1st accused's admitted mobile no.9946938127 was found within Pettah, Crl.Appeal No.567 of 2014 and connected cases 135

Capital tower, General Hospital Junction and Pulimoodu at

Thiruvananthapuram. On the same day at 10.37 hours, the 3rd accused's

mobile no. viz, 9995225462 was within a tower at Statue,

Thiruvananthapuram. On that day, between 11.43 and 13.53 hours, mobile

no. viz, 7411790579 was found moving between Kanjirampara,

Vattiyoorkavu, Mannarkonam, Nettayam, Maruthamkuzhi and

Sasthamangalam, all places adjacent to Thiruvananthapuram City and

close to the crime scene.

205. Between 10.59 and 13.53 hours on the same day, the number

said to have been used by the 2nd accused, viz.9961930763 was travelling

from Mannarkonam, Nettayam and Kanjirampara. On that day, between

11.38 to 13.53 hours, admitted mobile number used by the 3rd accused,

viz.9995225462 was also found moving between Mannarkonam and

Kanjirampara. 5th accused's mobile no. viz., 9008446019 was found at

Vattiyoorkavu. 6th accused's mobile no. viz., 9447144431 was found

between 9.04 and 9.52 hours at Kanjirampara. On 24.12.2012 between

9.04 and 12.23 hours, the phone number used by deceased Varma,

viz.9447972718 was found moving from Kanjirampara to Vattiyoorkavu,

Vattiyoorkavu Poly, Nettayam and Kachani. Between 13.04 and 13.46

hours on the same day the 6th accused's another mobile

no.viz,9633254448 was within the tower of Nettayam. On that day,

between 9.01 and 12.43 hours, mobile phone number used by PW29 was

at Eroor, Ernakulam.

Crl.Appeal No.567 of 2014 and connected cases 136

206. PW52 deposed that movement of the aforementioned mobile

phones, used by the accused, at various places in Thiruvananthapuram

would suggest that they reached at Railway station, Thampanoor around

14.00 hours after the incident. Mobile phone no.7411790579, after

travelling through Edapazhinhi and Oottukuzhi ultimately reached within

Thampanoor tower at around 2.00 p.m. Mobile no.9961930763 (allegedly

used by the 2nd accused) also reached Thampanoor Railway station at

about 14.00 hours. Thereafter, the phones moved through various places

in Kollam and Alappuzha districts and ultimately they reached at

Ernakulam. Evidence tendered by PW52 is relied on by the prosecution to

show that the accused were engaged in a long drawn conspiracy, spread

over for a period of time, and on 24.12.2012, the accused 1 to 5 reached at

Thiruvananthapuram. After committing the crime, they came back to

Ernakulam. According to the testimony of PWs 4 to 6, accused 1 to 5

hurriedly reached at Thampanoor Railway station to catch a train

scheduled for departure around 14.00 hours.

207. When cross-examined by counsel for the 1st accused, PW52

stated that he prepared Ext.P127 towards the end of March, 2013 as

directed by PW72. As mentioned above, his authority to prepare Ext.P127

report cannot be questioned as PW72 himself authorized him to prepare

the report, by invoking power under Section 168 Cr.P.C. To sum up, it can

be stated that testimony of PW52, coupled with the entries in Ext.P127,

would probabilise the prosecution case of contriving a conspiracy between Crl.Appeal No.567 of 2014 and connected cases 137

the accused from "Smayana" at Eroor, Ernakulam and also their

movements together at various places. It accounts for the presence of

accused 1 to 5 in and around the crime scene on 24.12.2012 before noon

and their presence at Thampanoor Railway station at about 14.00 hours.

This is also one of the links in the prosecution case, which, according to

us, has been satisfactorily established.

208. In this context, we may refer to the explanation offered by the

1st accused, when examined as DW2, that he came to

Thiruvananthapuram on 24.12.2012 along with his wife and child on a

pilgrimage to Sree Padmanabha Swami Temple. In his chief-examination,

he deposed that on 23.12.2012 it was "swargavathil ekadasi" and that is an

auspicious festival in Sree Padmanabha Swami Temple. Since DW2 could

not take up a journey to attend the function, he along with his wife and

child boarded a train on 23.12.2012 from North Railway station, Ernakulam

at 11.30 in the night. DW1 (brother-in-law of 1 st accused) also stated so.

During the journey, his wife menstruated and therefore he could not take

her to the temple. So, he left her at Railway station, Thampanoor.

Thereafter, he along with his daughter went to the temple. At that time, his

two mobile numbers, viz.9946938127 and 9447952699 were with him.

DW2 deposited `10,000/- in the account of one Purushothaman from State

Bank of Travancore, near Railway station, Thiruvananthapuram. It was at

11.00 a.m. DW2 would say that thereafter he, along with his daughter,

went to Sree Padmanabha Swami Temple. After darshan, they came back Crl.Appeal No.567 of 2014 and connected cases 138

to Railway station at 1.30 p.m. After his wife had finished her lunch, they

went to Museum for sight seeing and they returned at 5.00 p.m. by train

and reached at Ernakulam at about 9.30 p.m., This version of DW2,

according to the prosecution, was adduced to explain his presence at

Thiruvananthapuram on 24.12.2012. It is interesting to note that the case

put forward by DW2 (1st accused) was not suggested to any of the

prosecution witnesses. If he had a consistent case, certainly it would have

been put to the investigating officers at least. Moreover, except his ipsi

dixit, there is no material available to show that he along with his family

had gone to Thiruvananthapuram on 23.12.2012 during night and visited

Sree Padmanabha Swami Temple on 24.12.2012. No explanation is

furnished by the 1st accused for not revealing such a case at the time of

examining the prosecution witnesses. Therefore, we find no merit in the

contention raised by the 1st accused that he had gone to

Thiruvananthapuram with his family on a pilgrimage.

209. Encapsulating the points discussed above, we state that the

prosecution has succeeded in proving that accused 1 and 3 forged

documents and by using forged documents, they obtained mobile phone

connection no.7411790579. Evidence discussed above will clearly show

that the accused 1 to 5 were present in and around Thiruvananthapuram

city in the morning on 24.12.2012 and at 14.00 hours they left the city,

probably by a train. Entries in the CDRs also probabilise a conspiracy

hatched between the accused 1 to 4.

Crl.Appeal No.567 of 2014 and connected cases 139

210. Before dealing with evidence relating to conspiracy, we shall

consider two other instances relating to the alleged preparations by the

accused for committing the crime. If proved, they may fall under Section 8

of the Evidence Act.

211. Prosecution examined PW69 to prove Ext.P172 post-mortem

certificate. In the post-mortem certificate, it is mentioned that when PW69

examined the dead body, he noticed small remnants of cotton, sticking to

moustache, lips and chin of the deceased. Prosecution has a case that the

accused persons closed mouth and nostrils of Varma by a cloth drenched

in chloroform. It is the consistent prosecution case that deceased Varma

was stupefied by administering chloroform and then immobilised by tying

his hands behind.

212. PW14 Dr.Jayadeep V., was cited to prove that the 1st accused

had obtained a bottle of chloroform from his dental clinic a couple of

months prior to the incident. PW14 deposed that he was running Sheeba

Dental Clinic at Peralasseri in Kannur district. On 03.03.2013, police

officers from Thiruvananthapuram came to his clinic and asked whether he

knew the 1st accused, Jithesh. He answered in the affirmative. Thereafter

he was asked to produce the documents and licence pertaining to his

dental clinic. A mahazar was prepared on which he signed. PW14 had

acquaintance with the 1st accused prior to the incident. He was PW14's

patient. Besides, PW14 used to buy electronic goods from the shop where

the 1st accused worked as Manager. According to his chief-examination, in Crl.Appeal No.567 of 2014 and connected cases 140

the month of August 2012, 1st accused came to PW14's clinic and

demanded a bottle of chloroform for his cousin sister, who was said to be

studying in a Medical College at Bangalore. At that time, PW14 had a

bottle of chloroform, which he had bought 4-5 years before and kept

unused because better drugs were available at that time. PW14 handed

over chloroform bottle to 1st accused and he took it away. He identified the

1st accused from court. Ext.P16 mahazar is also proved by this witness. He

gave a statement to Magistrate under Section 164 Cr.P.C. which is marked

as Ext.P18. PW14 deposed that during yesteryears, chloroform was used

in dentistry and thereafter "Xyline" is being used. This chemical is used for

root canal treatment and bleaching teeth. When there was inadequate

supply of "Xyline" for a short period, distributors informed him that

chloroform could be used in its place. PW14 used chloroform only in a

couple of cases. When "Xyline" supply was restored, he stopped using

chloroform.

213. When cross-examined at the instance of the 1 st accused,

PW14 stated that he is not related to him. According to his statement in the

cross-examination, 1st accused received Chloroform from him during

August-September, 2012. Suggestion made by counsel for the 1st accused

that PW14 might have handed over unreactive and ineffective chloroform,

he answered that chemical property of the compound was not tested by

him. Nothing is available on record to show that chloroform kept in a bottle

for 4-5 years will be rendered unreactive. Although he was cross-examined Crl.Appeal No.567 of 2014 and connected cases 141

extensively relating to various aspects touching the proceedings in

Dentistry, we find no reason to disbelieve his relevant version that the 1 st

accused had obtained a bottle of chloroform from this witness prior to the

incident. Defence suggestion, that if at all the 1 st accused had received a

bottle of chloroform from PW14, it would have been rendered useless by

efflux of time, is not substantiated by any scientific data. This is one of the

instances of preparation proved by the prosecution. We cannot discard the

testimony of PW14.

214. It is the prosecution case that the accused persons smothered

Varma by covering his nose and mouth with a cotton fabric wet with

chloroform. In the police report, it is mentioned that the accused held

Varma from behind before smothering him. After enfeebling and debilitating

him, he was laid on bed in a bedroom adjacent to the dining room from

where he was dragged and then throttled him. Investigating officers have a

case that cotton cloth and plaster were used for suffocating deceased

Varma. Besides, the accused tied his hands by using a cotton rope. These

aspects have been deposed to by PW71, the investigating officer. PW71 is

the author of Ext.P23 inquest report. There also presence of cotton rope

and wrinkled plaster has been mentioned. Dimension of rope is described

in Ext.P23.

215. These materials were sent to FSL for analysis. Ext.P132 is the

report submitted by the Assistant Director (Physics), FSL,

Thiruvananthapuram. PW56 Arya B. was the Assistant Director, FSL and Crl.Appeal No.567 of 2014 and connected cases 142

she proved Ext.P132. As per Ext.P132, along with the ropes and adhesive

tapes (plaster) collected from the crime scene, sample rope and adhesive

tape (plaster) were also sent for analysis. PW56 deposed that all the rope

pieces were similar in nature. But, she opined that it was impossible to say

whether the adhesive tapes (plaster) collected from the crime scene were

similar to the sample sent.

216. It is the prosecution case that the accused purchased ropes

and plaster from Ernakulam with a view to use it upon the deceased. To

substantiate this contention, PW31 Saji and PW32 Anoop were examined.

PW31 is a witness to Ext.P51 mahazar. As per this mahazar dated

02.03.2013, 2nd accused purchased a piece of rope from Sani Stores,

Palarivattom where PW31 worked at that time. On 02.03.2013, a police

jeep stopped in front of his shop and a person in handcuffs pointed his

fingers towards his shop. That man, accompanied by police, came and

asked him whether any other person worked in the shop earlier. PW31

stated that another man was working in the month of December and he

joined for job only after the other man had left. Among various ropes kept

for sale, the accused pointed out a particular rope. Length of 2 metres from

that roll was cut and handed over to police. `24/- was given as price for the

rope. The rope purchased from him is marked as MO111. Cash bill issued

by him is marked as Ext.P50.

217. This witness was subjected to strict cross-examination. PW31

deposed in cross-examination that on 02.03.2013, owner of the shop was Crl.Appeal No.567 of 2014 and connected cases 143

hospitalised. According to his evidence, Sani Stores was a small shop and

there was no computer billing system. In cross-examination, it was elicited

that it is an ordinary shop with no modern accounting system for sales.

True, PW31 did not depose any cogent reason for remembering the

customer on 28.09.2013, the date of his deposition, who came to his shop

along with police officers on 02.03.2013. Moreover, the prosecution has no

case that PW31 is the person from whom the 2 nd accused had purchased

rope prior to the incident. This rope, along with the pieces of rope obtained

from the crime scene, was examined by PW56 and found out similarities.

218. PW32 was working as a part time employee in Mampilly

Medical Shop, Ernakulam. During March 2013 he worked in the medical

shop. He is a witness to Ext.P52 mahazar. It is his version that one day

police brought the 2nd accused to the medical shop and enquired about a

particular plaster that the 2nd accused said to have purchased earlier from

the shop. PW32 informed police officers that the kind of plaster stated by

2nd accused was not available and within two days he expected delivery of

the same. PW32 did not hand over plaster to police. But, later he came to

know that somebody in the shop had given a piece of plaster to police.

This witness was also subjected to searching cross-examination. We do

not attach much significance to testimony of PW32 because he has no

case that another piece of plaster of the same kind, as the one recovered

from the crime scene, was sold to police in the presence of 2 nd accused.

Ext.P132 report also shows the dissimilarity in the plasters recovered from Crl.Appeal No.567 of 2014 and connected cases 144

the crime scene and purchased later.

219. These are other instances of preparation, according to the

prosecution, done by the accused before committing the crimes. Learned

counsel appearing for the accused strongly contended that these are all

artificial evidence adduced by the prosecution to fill up lacunae in the

prosecution case. Statements on oath given by PWs 31 and 32 do not

definitely prove the prosecution case of 2nd accused purchasing plaster and

rope. PW31 deposed to the effect that he sold on 02.03.2013 another

piece of rope from the same roll. In the case of plaster, there is no reliable

material.

220. Further case of the prosecution is that the accused persons'

abscondance is a circumstance against them. PW71 deposed that after the

incident, accused 1 to 5 left to Bangalore and they were found together in

PW27's Paying Guest Accommodation. For a detailed questioning, they

were taken to Thiruvananthapuram on 04.01.2013 evening and reached at

PW71's office on the next day morning. This aspect is undeniable in the

light of overwhelming evidence.

221. As stated above, preparations like fraudulent obtainment of

mobile phone bearing no.7411790579, getting a bottle of chloroform from

PW14, etc. are pertinent aspects relevant under Section 8 of the Evidence

Act. Likewise, the accused fleeing away to a distant place after the

occurrence is also a circumstance established to attract the said provision.

222. Another important circumstance alleged and proved against Crl.Appeal No.567 of 2014 and connected cases 145

the accused is the conspiracy hatched by them to commit the crimes.

Prosecution heavily relied on the testimonies of PW10 Archa and PW11

Jaimol @ Pooja to prove this contention. It is an admitted fact that the 1 st

accused, with his family, was staying in a house on rent as per Ext.P76.

This house is situated at Poneth Road, Kaloor, Kochi. This fact is deposed

to by DW1, Saneesh (brother-in-law of the 1st accused). 1st accused, as

DW2, too reaffirmed this fact. Besides, it has come out in evidence that the

1st accused had taken another house on lease, which belonged to PW74

Chandrasekharan as per Ext.P31 lease agreement. This house is

"Smayana" and it is situated at Illikkapady, Eroor. DWs 1 and 2 deposed

that the house "Smayana" at Eroor was taken on lease for conducting a

social organization called "Live Malayalee". 1 st accused admitted that the

3rd accused is his first cousin. He had developed friendship with the 4 th

accused through the 3rd accused. There is no dispute regarding this

aspect. According to the testimony of the 1 st accused, he had no

acquaintance with the 5th accused.

223. PW10 is a Diploma holder in aviation and air-port

management. PW10 knew PW11, as she was junior to her by one year in

the same institute. They were staying in the same ladies hostel and both

were room-mates. Both of them went to Bangalore in search of job. They

could not find out a suitable job. They had to work in many firms. At that

time, PW10 came into contact with the 2 nd accused, who is a friend of

PW11. 2nd accused claimed to have been conducting a job consultancy Crl.Appeal No.567 of 2014 and connected cases 146

during the time when PWs 10 and 11 were searching for opportunities in

Kerala. As instructed by the 2nd accused, PWs 10 and 11 came down to

Ernkulam. PW10 deposed that the 2nd accused called her from mobile

no.8606516539. Her phone number was 9656967625. PW10 deposed that

on 24.10.2012 both these witnesses came to Ernakulam. 2 nd accused was

waiting for them in railway station and they were taken to "Smayana" at

Illikkapady. After keeping their luggage in the house, on the next day PWs

10 and 11 went to their houses at Vakkom and Ottappalam respectively.

She identified the 2nd accused from the dock. From "Smayana", 2nd

accused introduced the 1st accused as his business partner. It was

informed that he was engaged in real estate and antique business. She

identified the 1st accused at the trial. It is the version of PW10 that the 1 st

accused frequently visited the house for discussing matters relating to their

business. When enquired, accused 1 and 2 informed PW10 that one

Harihara Varma at Thiruvananthapuram had precious stones and gems

and if there could be a deal, they might get a hefty commission. PW10

admitted that on three occasions she also had gone to

Thiruvananthapuram for meeting deceased Varma. On 02.11.2012, PW10

and accused 2 and 3 had gone to Thiruvananthapuram and after reaching

at Railway station, they went to Thiruvananthapuram airport. From the

airport, 2nd accused called deceased Varma and informed about their

arrival. It is significant, the prosecution has a case that the accused

persons, except the 1st accused, had been dealing with Varma through Crl.Appeal No.567 of 2014 and connected cases 147

false identities. Prosecution case is that the accused called Varma from

airport to impress upon him that they had come from outside the State by a

flight. At that time Varma asked them to come to Dubai International Hotel.

From there, they met Varma and 6th accused. In a Honda City car, the 6 th

accused, along with others, had gone to "Omkar" house. On the way, the

car was stopped and Varma alighted. After 15 minutes, he came back with

a suitcase and then proceeded. On reaching at "Omkar", he showed all the

jewels in the suitcase. MO10 black suitcase was identified by this witness.

224. Next time, PW10 along with accused 1 to 4 went to

Thiruvananthapuram and again from the airport, they contacted Varma.

Thereafter, they were taken to the same house by Varma and 6 th accused.

All the accused were identified by this witness from the dock. On the

second occasion also, Varma showed the stones. Three Ganesh figurines

and a green colour stone bar were also shown. By using an electronic

weighing machine, the stones were weighed. She identified the material

objects, exhibited in the case, as those possessed by Varma. According to

her testimony, on the third time, she along with accused 1 to 4, again went

to "Omkar". At that time, the 1st accused did not enter the house. 4th

accused was introduced as the son of a minister in Tamilnadu Government.

PW10's real name was changed and she was introduced as Nikhitha. 3 rd

accused was introduced in the name, Yogesh. 2nd accused told his name

as Premraj. PW10 and 3rd accused were represented to be the staff

members of Rangarajan, said to be a relative of a minister in Tamilnadu Crl.Appeal No.567 of 2014 and connected cases 148

Government. It is clear from PW10's testimony that there was a conscious

attempt by the accused to fake their identity.

225. PW10 deposed about the phone numbers of accused persons.

According to her testimony, 3rd accused was using a mobile

no.9995225462. 4th accused was using mobile no.9946349097. 1st

accused's mobile number was 9946938127. It has come out in evidence

that she also gave a statement under Section 164 Cr.P.C. which is marked

as Ext.P8.

226. PW11 supported the testimony of PW10 to a considerable

extent. PW11 affirmed that PW10 was her senior when she studied

aviation and airport management course at Ernakulam. And they were

room-mates. When both of them could not find a suitable job at Bangalore,

they decided to come down to Kochi and through PW11's friend Surya, she

established contact with the 2nd accused. PW11 testified that phone

number in which she contacted the 2 nd accused was 8606516539. Her

phone number is 9947134421. As instructed by the 2 nd accused, PWs 10

and 11 came down to Ernakulam. It is her further version that the 2nd

accused deposited `10,000/- in her account for defraying their travel

expenses. On 24.10.2012, both PWs 10 and 11 reached at Ernakulam and

the 2nd accused picked them up from railway station and dropped at

"Smayana". Both PWs 10 and 11 deposed that they resided in the said

house. 1st accused was introduced to them by the 2nd accused as his

partner. She also deposed alike PW10 that accused 1 and 2, along with Crl.Appeal No.567 of 2014 and connected cases 149

others, were involved in dealing with real estate and antique items

business and they came to know about deceased Varma. PW11 further

deposed that for their business purposes PW10 had been taken to

Thiruvananthapuram. For about 1 ½ months both PWs 10 and 11 stayed at

"Smayana". It is the version of these witnesses that by the first week of

December, 2012, they shifted to a ladies hostel by name "Lissy Hostel",

Ravipuram, Kochi. According to them, they shifted to the ladies hostel

since accused 3 and 4 and one Lithin (PW29) came to reside in

"Smayana". These two witnesses identified accused 3 and 4 from the dock.

PW11 deposed that her last meeting with the 1st accused was during first

week of December 2012 when they decided to shift to a ladies hostel and

thereafter she did not meet him.

227. She deposed that on 25.12.2012 in the morning the 2 nd

accused came to her hostel and handed over a bag. He wanted PW11 to

keep it in her safe custody. He told her that he was going to get a bus

ticket to Bangalore. After two days, 2nd accused called PW11 over phone

and informed that he urgently needed the bag. He asked PW11 to bring the

bag to Bangalore. PW11 informed him that she had no money to travel. At

that time, 2nd accused deposited `1,500/- in her account. Thereafter PW11

went to Bangalore and handed over MO23 bag to the 2 nd accused from a

bus stop at Madiwala. She went to the ladies hostel where she stayed

earlier and returned in the next morning. `1,500/- was deposited by the 2 nd

accused in the name of PW11 in an account maintained by her in Punjab Crl.Appeal No.567 of 2014 and connected cases 150

National Bank, Kulappully branch. Account opening form pertaining to

PW11 is Ext.P9 series. Ext.P10 is the ID proof for opening the account.

The relevant entry for deposit of the said sum is also proved. She also

gave a statement under Section 164 Cr.P.C.

228. Testimonies of these witnesses are seriously challenged in

cross-examination on behalf of all the accused persons. It was elicited from

these witnesses that they knew about Varma's death. PW10, when cross-

examined, stated that she was called to Peroorkada police station during

first week of January, 2013. She did not remember the date on which she

went to police station. Thereafter in the month of March 2013, PW72

questioned her. In cross-examination, PW10 admitted that she had

impersonated as Nikhitha when she met deceased Varma. Learned

defence counsel put questions to PW10 suggesting that police was about

to implicate her too in the crime since her conduct was bordering

criminality. She denied it by saying that at no point of time police had

suspected her. PW10 had informed her parents that she was going with

the accused for a business deal, but she was not aware that she would be

presented before deceased Varma with a falsified identity. Even though

questions were asked in cross-examination regarding identity of the gems,

precious stones, statuettes, bar, etc. produced before the court, PW10

adhered to her version in the chief-examination. In other words, no dent or

discredit could be made to her testimony to hold that the articles did not

belong to deceased Varma.

Crl.Appeal No.567 of 2014 and connected cases 151

229. PW11 stated during cross-examination that in the month of

December, 2012 there was only one credit to her account and that was

`1,500/- on 27.12.2012 deposited by the 2nd accused. On reading through

the deposition of PWs 10 and 11, it is clear that these two ladies were

frantically in search of job opportunities. It is the prosecution case that their

desperate situation was exploited by the accused promising them job.

PW11, in the cross-examination by the 1 st accused, stated that `5,000/-

was the salary offered by the 1st accused and it was not acceptable to her.

It is also suggested to these witnesses that they were coerced to give a

statement before Magistrate under Section 164 Cr.P.C.,which they stoutly

denied.

230. It is brought out from PW11 that when she went to Magistrate's

court, Nedumangad for giving a statement under Section 164 Cr.P.C., she

stayed in the house of a police officer by name Sunil Lal, who was a

member in the special investigation team constituted for this case.

Suggestion by the defence that she was taken to Magistrate from Sunil

Lal's house in the company of a woman police constable is denied and

PW11 deposed that she gave the statement at her free will.

231. Likewise, during PW10's cross-examination too it was

suggested that Sunil Lal used to talk to her for a long time during night.

She admitted that Sunil Lal had called her and one Udayakumar, ASI,

Peroorkada had also called her. Similarly, Mrs.Raji, a woman police

constable, too had called her. The trend of cross-examination would Crl.Appeal No.567 of 2014 and connected cases 152

suggest a defence case that these two witnesses deposed before the

learned Magistrate, under Section 164 Cr.P.C., and testified before the trial

court fearing that they would be implicated in the case as accused. It is

forcefully argued by the learned counsel for the accused that conduct of

these witnesses is amounting to impersonation and cheating. According to

PWs 10 and 11, they had no intention to cheat anyone and they were only

rendering help to the accused, who promised to find out a suitable job for

them in Kerala.

232. PW11, when cross-examined, admitted that she developed

contact with the 2nd accused through phone conversations one month prior

to her meeting him for the first time at Ernakulam railway station. At his

instance, PWs 10 and 11 started residing at "Smayana". PWs 10 and 11

had admitted in cross-examination that Sunil Lal had called them from

Muscat and London during progress of the investigation. PW11 deposed

that though they stayed in Sunil Lal's house at Thiruvananthapuram, when

they went to give statements under Section 164 Cr.P.C., Sunil Lal's sister

dropped them in a nearby bus stop and thereafter both of them went to the

Magistrate's court on their own. Main thrust at the time of cross-

examination was that these two witnesses were aiding the investigation

team out of fear of arraigning them in the case. This contention has been

denied by them.

233. PW11 deposed that death of Varma was known to them at

about 9.30 a.m. on 25.12.2012. After that she went to Bangalore carrying Crl.Appeal No.567 of 2014 and connected cases 153

the bag entrusted by the 2nd accused. When she asked the 2nd accused

about Varma's death, he answered that it was unfortunate. In the cross-

examination by counsel for the 2nd accused, PW11 clearly stated that she

was aware, when she got custody of the bag, that it contained gems and

precious stones. She did not move the bag out of her room. PW11

deposed that when enquired about the jewels kept in the bag, 2nd accused

informed her that they were purchased by the 1st accused from Mysore.

234. On an evaluation of the evidence of PWs 10 and 11, we are of

the view that certain vital aspects relating to the events transpired prior to

commission of the crime tending clearly to indicate a conspiracy and

certain other events happened immediately after the incident have come to

light. Despite a searching cross-examination on these witnesses, they

testified that at the instance of the 2nd accused they came down to

Ernakulam and started residing at "Smayana". How they came into contact

with accused 1 to 4 have been revealed through their testimony. Accused

persons meeting deceased Varma in PW10's presence and PW11 carrying

MO23 bag to Bangalore as entrusted by the 2nd accused are aspects

clearly established. However, as contended by the learned counsel for the

appellants, it will be desirable to look for corroboration from other sources

too in respect of the allegations relating to conspiracy.

235. PW29 Lithin, at the time of trial, was a student in civil

engineering diploma course. Earlier, he studied in a technical institute at

Bangalore. While he was studying at Bangalore, accused 3 to 5 became Crl.Appeal No.567 of 2014 and connected cases 154

his close friends. He had other friends as well. He identified the accused

persons from the dock. According to his testimony, 3rd accused was using a

mobile phone with no.9995225462. 5th accused's mobile phone number

was 9008446019. While studying, he had worked during vacation as

salesman in Surya Electronics, owned by the father of the 3 rd accused.

While so working, he had developed acquaintance with the 1 st accused. 1st

accused had two phone numbers, ie., 9447952699 and 9946938127. 1 st

accused was identified by this witness in court. After dropping out from

Bangalore institute, this witness joined the education consultancy run by

the accused 1 and 2 at Tellicherry. 3rd accused was also involved in the

consultancy. Thereafter, PW29 went back to Bangalore. 1st accused told

PW29 that he would inform him when job openings were available.

According to PW29, he came to Ernakulam as instructed by the 1st

accused during the first week of December, 2012. After reaching at

Ernakulam, PW29 waited for the 1st accused in a shopping mall and from

there he was taken to "Smayana" at Eroor. At that time, accused 2 to 4

were also present with the 1st accused. Apart from accused 2 to 4, PWs 10

and 11 were also residing in the house. In this context, it is pointed out by

the defence that this part of his evidence is contrary to that of PWs 10 and

11, who said that they moved out to a ladies hostel before PW29's arrival.

On a comprehensive evaluation, we do not find any reason to judge this

witness as a person devoid of credibility, especially based on such an

insignificant contradiction. After 25th December, 2012, the 5th accused also Crl.Appeal No.567 of 2014 and connected cases 155

came there. Although there was no job consultancy office opened by the 1 st

accused at Ernakulam, he promised that it would be started soon. Further,

PW29 was informed that the accused were into real estate business and

gem trade. PW29 deposed that he heard them talking over phone about

one Varma who was a gem merchant. During the first week of December,

2012, accused 2 to 4 packed up their bags and went out in a car. He saw

them keeping a plaster and rope in a bag. These items are MOs 24 and 25

and he identified them. By that time, PWs 10 and 11 had shifted to a ladies

hostel. On 25.12.2012, PW29 and 5th accused went back to Bangalore

from "Smayana". Till then he stayed in that house. Replying to a court

question, PW29 deposed that all the five accused persons went to

Thiruvananthapuram on 24.12.2012 to meet Harihara Varma. PW29 met

them, after their return from Thiruvananthapuram, from the house of 1 st

accused. 1st accused instructed PW29 to get some petrol in a bottle.

Prosecution case is that the mobile phones used by the accused and those

of the 6th accused and deceased Varma were burnt to cause

disappearance of evidence. After returning to Bangalore on 25.12.2012,

PW29 met accused 2 to 4 there on 26.12.2012. They called him over

phone when they reached at Bangalore. He met the 1 st accused on

27.12.2012 at Bangalore. PW29 had previous acquaintance with PW19

Vijayakumar. He was a real estate businessman. He was working as

manager in a private firm. PW29 testified that on 30.12.2012 he met PW19

Vijayakumar in the presence of accused 2 to 4. PW29 deposed that the 2 nd Crl.Appeal No.567 of 2014 and connected cases 156

accused handed over some gems to PW19 Vijayakumar and received

`90,000/-. Later, PW29 came down to his native place for treatment when

kidney stone was detected. Thereafter, he knew through television that

Harihara Varma was killed and the accused persons were arrested in

connection with the case. Ext.P46 is the statement given by this witness

under Section 164 Cr.P.C. It is pertinent to note that through this witness,

some activities of the accused persons prior to the incident and those

immediately after the incident were revealed. 2nd accused dealing with

gems in the company of other accused persons and his borrowing money

from PW19 are spoken to by this witness. It also came out that PWs 10

and 11 were staying with other accused persons at "Smayana" and they

shifted to a ladies hostel to the knowledge of PW29.

236. This witness was subjected to a strict cross-examination by

the counsel. When learned counsel for the 1 st accused cross-examined,

this witness deposed that at the time of giving statement, he was aware of

the phone numbers used by the 1st accused. He did not furnish phone

number of the 1st accused to police, as they did not ask for it. But in his

additional statement, he has furnished the same. It is also brought out in

cross-examination that while the 1st accused was working as manager in

Surya Electronics, belonged to the 3rd accused's father, this witness was

working as a salesman. It is elicited from this witness in 1 st accused's

cross-examination that PW19 Vijayakumar was known to him as he was

staying in a Malayalee settlement area at Bangalore. Despite cross- Crl.Appeal No.567 of 2014 and connected cases 157

examination, his acquaintance with PW19 Vijayakumar could not be

effectively challenged. He testified in cross-examination about the

educational consultancy run by accused 1 and 2. Suggestions to this

witness that he was a drug peddler and for that reason he was sent out

from college are denied by him. PW29 in cross-examination stated that he

found the accused 1 and 2 keeping plaster (MO24) and rope (MO25) in a

bag and placing the bag in a Maruthi Swift car bearing no.KL58 D 243

belonged to the 1st accused. He had seen MOs 24 and 25 two times

thereafter. Despite a searching cross-examination, PW29 stuck to his

stand.

237. When cross-examined by the 4th accused, he denied the

suggestion that after 2010 PW29 had no reason to stay at Bangalore and

he was planted by the prosecution to speak falsehood. At the time of cross-

examination, PW29 deposed that PW19 Vijayakumar owns a house at

Ernakulam. All the details about PW19 elicited from this witness at the

time of cross-examination would show that he had a longstanding

relationship with PW19. Despite very lengthy cross-examination, PW29

clung to his original versions.

238. Learned counsel for the 5th accused cross-examined him to

bring out answers that he lost his original pass certificate for plus two

course. Since he dropped out from college, the authorities did not release

the certificates as he did not pay the entire course fee. PW29 in cross-

examination deposed that the accused 1 and 2 advised him to make a Crl.Appeal No.567 of 2014 and connected cases 158

publication in a newspaper that he lost his certificates irrecoverably. For

that purpose, he had gone to the Judicial First Class Magistrate Court,

Koothuparamba and sworn to an affidavit stating that he lost his

certificates. According to PW29, the 1st accused arranged an advocate for

getting an affidavit attested by the Magistrate. He also filed another

affidavit swearing that he lost his SSLC book too. Both the affidavits were

filed together. Learned senior counsel and counsel for other accused

contended that PW29 has no regard for truth as he had filed false affidavits

in respect of certificates which were actually not lost. They argued that

testimony of such a person has to be discarded. It may be true that he

must have found out a devious method to get duplicate certificates issued

by the authorities when they refused to return the same. That cannot be

taken as the sole reason to brand him a liar, especially when PW29 has a

case that the accused 1 and 2 were his advisers for resorting to file a false

affidavit.

239. In cross-examination, PW29 repeated his version that the 2 nd

accused, in the presence of other accused persons, handed over gems

and precious stones to PW19 and received `90,000/-. We find no reason to

disbelieve his versions regarding this aspect.

240. PW29 deposed in cross-examination that he did not see the

accused persons starting a journey either on 23.12.2012 night or on

24.12.2012 morning. He deposed that on 24.12.2012, he made calls to the

phone numbers used by accused 1 to 5, but all of them were switched off. Crl.Appeal No.567 of 2014 and connected cases 159

When he sent a message, they called him back and informed that they

were at Kollam. That was the reason for PW29 to say that the accused had

gone to Thiruvananthapuram. PW29 stated that on 24.12.2012 night, the

1st accused asked him to come to his house at Deshabhimani Road, Kochi.

PW29 went to his house. He was not present there, but other accused

persons were present. 1st accused came home after sometime.

241. PW29 stated that he did not hear complete conversations

between the accused and deceased Varma. When they received calls from

deceased Varma, they used to handover phone to one another.

242. On an objective assessment of his testimony, we find that the

evidence tendered by PWs 10 and 11 get considerable support from this

witness regarding the alleged conspiracy to commit the crimes.

243. PW19 also supported the testimony of PW29 to a great extent.

According to his chief-examination, PW29 is a close friend of PW19. On

29.12.2012, PW29 called this witness at about 10.30 a.m. and wanted to

meet him urgently. At that time, PW19 was at his work site. As informed,

PW29 came to his work site at about 12.30 p.m. in the company of

accused 2 to 4. 2nd accused had shown a few gem stones to PW19 and

wanted to sell them out. PW19 informed them that he was unaware of the

nuances of gem business as he was only a real estate businessman. He

returned the stones to them. On the next day (30.12.2012) again they

came to PW19 and informed him that they were in pressing need for some

cash. It was represented that `1,00,000/- was urgently needed for the 2nd Crl.Appeal No.567 of 2014 and connected cases 160

accused for a business purpose. When all of them requested for help,

PW19 handed over `60,000/- in cash kept in his house and `30,000/-

borrowed from his friend. 2nd accused received a total sum of `90,000/-

from PW19. By way of security, the stones previously shown were handed

over to PW19, although he did not insist for the same. Later, on

12.01.2013, police officers brought the 2nd accused for recovering the

stones. After questioning PW19's identity, Circle Inspector of Police asked

whether he knew the 2nd accused. When he narrated the whole incident,

police officers wanted PW19 to hand over the stones to them as part of

investigation. Ext.P26 mahazar was prepared and 12 stones were

recovered. PW20 is a witness to the mahazar. PW19 identified accused 2

to 4. 2nd accused handed over 12 stones to PW19. They were in oval

shape. MO29 series were identified by this witness from the dock.

244. In cross-examination, PW19 deposed that he had a close

contact with PW29 for about 2 to 2 ½ years prior to the incident. He used

to borrow money from PW19. He emphatically stated that the 2 nd accused

showed the stones in the presence of PW29 and other accused. Although

questions were asked about his source for `90,000/-, he adhered to his

statements in the chief-examination. On going through the entire testimony

of this witness, we find no reason to disbelieve him.

245. If we consider the testimonies of PWs 10, 11, 19 and 29

together, there are enough materials to clearly infer the fact that accused 1

to 4 had laid out definite plans to deal with deceased Varma and their keen Crl.Appeal No.567 of 2014 and connected cases 161

interest was in the gems possessed by him. Also, after his death, the

accused came into possession of large number of stones, once kept in

custody by the deceased. Needless to point out that things done by a

conspirator in reference to common design is a relevant fact falling under

Section 10 of the Evidence Act. According to this Section, where there is a

reasonable ground to believe that two or more persons have conspired

together to commit an offence, anything said, done or written by anyone of

such persons in reference to their common intention, after the time when

such intention was first entertained by anyone of them, is a relevant fact as

against each of such persons believed to be so conspired as well as for the

purpose of proving the existence of conspiracy. It is also relevant for the

purpose of showing that any such person was a party to it. When we

analyse the testimonies of the aforementioned witnesses, the

representations, utterness and actions of accused 1 to 4 clearly spell out a

conspiracy to commit the crimes.

246. We shall briefly state the legal principles regarding conspiracy.

Two Sections falling within Chapter V-A of IPC deal with criminal

conspiracy. They are Sections 120A and 120B. This Chapter was inserted

in the Penal Code by Act of 1913. Section 120A gives the definition of

"criminal conspiracy". It reads thus:

"S.120-A. When two or more persons agree to do, or cause to be done,-

(1) an illegal act, or (2) an act which is not illegal by illegal means, Crl.Appeal No.567 of 2014 and connected cases 162

such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."

247. The important facet of law relating to conspiracy is that apart

from it being a distinct offence, all conspirators are liable for the acts of

each other of the crime or crimes which have been committed as a result

of the conspiracy. This principle is well settled in a catena of decisions.

Criminal conspiracy in terms of Section 120B IPC is an independent

offence. The ingredients of the offence of criminal conspiracy, as laid down

by the Supreme Court in R.Venkatkrishnan v. C.B.I. ((2009) 11 SCC 737)

are as follows:

"(i) An agreement between two or more persons;

(ii) the agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means."

248. Indisputable legal proposition is that the most important

ingredient of criminal conspiracy is the agreement between two or more

persons to do an illegal act. In a case where criminal conspiracy is alleged,

the court must inquire whether the two persons are independently pursuing Crl.Appeal No.567 of 2014 and connected cases 163

the same end or they came together to pursue the unlawful object. In the

former case, it does not render them conspirators, but the latter does.

249. It is a settled legal principle that it is not necessary that all the

conspirators should participate from the inception to the end of the

conspiracy; some may join the conspiracy after the time when such an

intention was first entertained by anyone of them and some others may

quit from the conspiracy as well.

250. In a case where the agreement is for accomplishment of an

act which by itself constitutes an offence, then in that event, unless the

relevant statute so required, no overt act is necessary to be proved by the

prosecution because in such a fact situation criminal conspiracy is

established by proving such an agreement (see Sushil Suri v. C.B.I. -

((2011) 5 SCC 708). This principles was lucidly laid down by a Constitution

Bench in Lennart Schussler and another v. Director of Enforcement

another (AIR 1970 SC 549) in the following words:

"The first of the offence defined in Section 120A, Penal Code which is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or legal act by illegal means subject however to the proviso that where the agreement is not an agreement to commit an offence the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means. If in the furtherance of the Crl.Appeal No.567 of 2014 and connected cases 164

conspiracy certain persons are induced to do an unlawful act without the knowledge of the conspiracy of the plot they cannot be held to be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. An agreement to do an illegal act which amounts to a conspiracy will continue as long as the members of the conspiracy remain in agreement and as long as they are acting in accord and in furtherance of the object for which they entered into the agreement."

251. Another important aspect is that in order to prove a criminal

conspiracy punishable under Section 120B IPC, there must be direct or

circumstantial evidence to show that there was an agreement between two

or more persons to commit an offence. It may be futile to expect in all

cases direct evidence regarding conspiracy as mostly it would be done

secretly.

252. Indeed, where the agreement is to commit an offence, no overt

act need be proved. Overt acts raise a presumption of agreement,

knowledge of the purpose of conspiracy and properly looked at, they

evidence the existence of a concerted intention. Conspiracy in many cases

is a matter of inference largely from the facts and circumstances

established in the case. These propositions are unassailable.

253. Learned senior counsel appearing for accused 3 to 5 relying

on Vijayan v. State of Kerala (1999 SCC (Cri.) 378) contended that to Crl.Appeal No.567 of 2014 and connected cases 165

bring home the charge of conspiracy within the ambit of Section 120B IPC,

it is necessary to establish that there was an agreement between the

parties for doing an unlawful act. True, in the same decision, the Supreme

Court has held that it will be difficult to establish conspiracy by direct

evidence and therefore from the established facts an inference could be

drawn; but there must be some material from which it would be reasonable

to establish a connection between alleged conspiracy and the act done

pursuant to the said conspiracy. We have already mentioned the

circumstances appearing in the evidence which clearly indicate a criminal

conspiracy.

254. Learned prosecutor based on Firozuddin Basheeruddin v.

State of Kerala (2001 (3) KLT 189) argued that for the crime of

conspiracy, it is the unlawful agreement and not its accomplishment which

is the gist of the crime. Even though there is no agreement as to the

means by which the purpose is to be accomplished, the evidence of

criminal conspiracy is complete.

255. The accused persons stood trial for the charges framed by the

court below inter alia for commission of dacoity and murder. Stated

precisely, the charge framed against the accused is a single general

conspiracy to commit dacoity and murder. In the succeeding paragraphs

we will be stating the reasons for finding that the accused could not be held

liable for a charge of dacoity with murder; instead, they should be held

liable for an aggravated form of robbery and murder. Notwithstanding that Crl.Appeal No.567 of 2014 and connected cases 166

fact, we find from the charge framed by the trial court and the materials on

record that the accused are alleged to have hatched a single general

conspiracy to commit robbery and murder. According to the decision in

Mohd.Hussain Umar Kochra v. K.S.Dalipsinghji and another (AIR 1970

SC 45), essentials of a single general conspiracy have been stated thus:

"Criminal conspiracy, as defined in Section 120A, is an agreement, by two or more persons, to do, or cause to be done, an illegal act, or an act, which is not illegal, by illegal means. The agreement is the gist of the offence. In order to constitute a single general conspiracy there must be a common design and a common intention of all to work in furtherance of the common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be a general plan to accomplish the common design by such means as may from time to time be found expedient. New techniques may be invented and new means may be devised for advancement of the common plan. A general conspiracy must be distinguished from a number of separate conspiracies having a similar general purpose. Where different groups of persons co-operate towards their Crl.Appeal No.567 of 2014 and connected cases 167

separate ends without any privity with each other, each combination constitutes a separate conspiracy. The common intention of the conspirators then is to work for the furtherance of the common design of his group only."

256. Principles relating to single conspiracy, in a different set of facts,

are enunciated in S.Swamirathnam v. State of Madras (AIR 1957 SC

340) in the following words:

"Where the charge, as framed, discloses one single conspiracy, although spread over several years, there is only one object of the conspiracy and that is to cheat members of the public, the fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy does not change the conspiracy and does not split up a single conspiracy into several conspiracies."

257. Keeping the above principles in mind and on a conjoint

reading of the depositions of PWs 10, 11, 19 and 29, we can legitimately

deduce an agreement forged between accused 1 to 4 to covetously

acquire the valuable gems and stones from deceased Varma's custody by

taking any extreme step. In the light of other evidence discussed above

relating to commission of the crime, we have no hesitation to hold that the

unlawful agreement between accused 1 to 4 was translated into action by

perpetrating the offences established by evidence.

258. Now, we may move on to the allegation that the accused had

stupefied Varma by making him drink alcohol and inhale chloroform. For Crl.Appeal No.567 of 2014 and connected cases 168

considering merit of the prosecution case that the accused 2, 3 and 5

made deceased Varma to drink juice mixed with alcohol and thereafter they

administered chloroform to stupefy him, the testimony of PW40 Jose

M.Philip and his report (Ext.P84), oral evidence tendered by PW66

Prameela S. and her reports (Exts.P160 to P162) and also the testimony of

PW69 Dr.N.A.Balaram will be relevant.

259. PW40 was working as Joint Chemical Examiner, Chemical

Examiner's Laboratory, Thiruvananthapuram. On 17.01.2013, ten sealed

bottles involved in the crime were received in his office through a senior

Civil Police Officer. The bottles contained deceased Varma's viscera and its

contents. The samples were forwarded by PW69 Dr.Balaram after

conducting autopsy on the dead body.

260. PW40 deposed that the samples were examined under his

personal supervision. Ext.P84 is the report of analysis. PW40 meticulously

proved its contents. It can be seen from Ext.P84 that the 1 st sealed bottle,

with a specific label, contained stomach and part of intestine with contents

taken from dead body of Harihara Varma. 2nd sealed bottle was containing

liver and one kidney of the deceased. 3 rd sealed bottle was containing

blood sample of the deceased. In the 4 th sealed bottle, lungs of the

deceased were sent for analysis. 5th sealed bottle was containing saturated

saline. 6th sealed bottled was containing brain of the deceased and the 7 th

sealed bottle contained cerebro spinal fluid. 8 th sealed bottle contained

swab from around his nose. 9th sealed bottle was containing swab from his Crl.Appeal No.567 of 2014 and connected cases 169

mouth and 10th sealed bottle was containing cotton remnants seen around

his mouth. All the items were subjected to various tests as detailed in

Ext.P84. The conclusion of the report reads thus:

"Ethyl alcohol was detected in numbers I, II and III.

The sample of blood under item No.III contained 23mg

(twenty three milligram) of ethyl alcohol in 100 ml blood.

No other poison was detected in item numbers I, II and

III. Chloroform was detected in item no.IV (lungs) and

item no.X (cotton remnants around mouth). No poison

was detected in item nos.VI, VII, VIII and IX. No poison

including ethyl alcohol was detected in item No.V, the

sample of preservative."

261. PW40 lucidly proved the observations made in the report. He

was subjected to serious cross-examination. Various questions relating to

procedural formalities were put to this witness, to which he answered that

he meticulously complied with the manual of procedure for chloroform

analysis. Since PW40 was not asked to report the stage of digestion of

food particles found in the stomach content, he did not specifically state

those details in Ext.P84. During cross-examination, it was suggested that

since PW40 detected only a small quantity of ethyl alcohol in blood, it could

be due to heavy drinking by the deceased on the previous day. However,

PW40 did not agree to this suggestion. His answer is that ethyl alcohol will

reach kidney of the person consuming it within half an hour and this will Crl.Appeal No.567 of 2014 and connected cases 170

indicate that traces of alcohol seen could not be due to the previous day's

drinking. To a specific question, PW40 answered that he did not detect

chloroform in the nasal swab. But, the report clearly reveals presence of

chloroform in the deceased's lungs. When the defence counsel put a

specific question whether chloroform could be detected in blood, urine and

body tissues, PW40 answered that if chloroform was consumed through

mouth, it could be detected. If chloroform was inhaled, it would be difficult

to detect it in blood and tissues. Despite tough cross-examination, we find

no reason to discard his evidence and contents in Ext.P84 report. It clearly

reveals the presence of chloroform in the lungs of the deceased and

presence of ethyl alcohol in the samples sent for analysis.

262. PW66 was working as Assistant Director (Chemistry), FSL,

Thiruvananthapuram and she submitted three reports, viz. Exts.P160 to

P162. Ext.P160 is relating to 23 items involved in the crime. It includes a

shirt worn by the deceased, a bed sheet spread on the cot where the body

was found lying, cellophane impression taken from neck region of the dead

body, swab collected from mouth region and dark brown stain taken in

cotton gauze from nose region along with control samples of various items.

Item nos.11 and 14 are towels suspected to be used for smothering the

deceased. Scalp and body hair of accused 2 and 3 were also sent for

analysis.

263. In Ext.P160, PW66 has mentioned that shirt worn by the

deceased, bed sheet mentioned above, swab collected from mouth region Crl.Appeal No.567 of 2014 and connected cases 171

of the deceased, dark brown stain taken in cotton gauze from the

deceased's nose region, tape found in the scene of crime and bath towel

with violet border contained traces of chloroform. It is also reported that no

narcotic or psychotropic substance could be detected in the material

objects sent for analysis. Likewise, sedative-hypnotic drugs could not be

detected in the objects given for analysis.

264. As per Ext.P161, Tropicana apple juice paper box, Tropicana

grape juice paper box and Minute Maid juice paper box were given for

analysis. It is reported that ethyl alcohol was detected in Tropicana grape

juice packet. Other two paper boxes did not test positive for ethyl alcohol.

265. Ext.P162 report is pertaining to cellophane impressions taken

from both hands of the deceased. When analysed, chloroform, food

particles or any adhesives could not be detected in the said items.

266. During cross-examination, PW66 answered that the time

interval within which chloroform may remain on cotton materials will

depend on how they were preserved. She further answered that she is not

an expert to specify how long chloroform will stay on a material. It appears

that the defence wanted to establish that chloroform, being a volatile

substance, could not have been detected in the materials sent for analysis.

But, PW66 cogently and clearly answered that she detected the presence

of chloroform in the aforementioned objects forwarded to the laboratory.

Her answers are justified by the findings in Exts.P160 to P162. PW66

further testified that material objects forwarded to her during the month of Crl.Appeal No.567 of 2014 and connected cases 172

March, 2013 were scientifically preserved in airtight packets. It is the

answer given by PW66 that although chloroform is a volatile compound,

when compared to other organic compounds, it is less volatile. Despite a

searching cross-examination on this witness, we are unable to find any

reason to hold that the aspects covered in Exts.P160 to P162 and

testimony of PW66 cannot be taken to find that chloroform was

administered on deceased Varma. In other words, prosecution case that

the deceased was stupefied by using chloroform is satisfactorily

established by the testimony of PW66 and her reports (Exts.P160 to

P162).

267. Deposition of PW69 Dr.Balaram is also relevant since he had

noticed small remnants of cotton sticking to moustache, lips and chin of the

dead body. Actually, this must have prompted him to probe deep into the

matter. So, he sent the body parts of the deceased for chemical analysis

when he found that death was due to combined effects of smothering and

blunt injury sustained on the victim's neck. To sum up, we are of the

definite view that the deceased was subjected to smothering and a towel

soaked in chloroform, mentioned in Ext.P160, must have been used to

smother him. Prosecution contention that the deceased was made to drink

grape juice mixed with alcohol is also established by the testimony of

PW40, supported by Ext.P84 report.

268. In order to fully appreciate gamut of the defence case, we may

also refer to other evidence adduced on the defence side. DW3 Ramesh Crl.Appeal No.567 of 2014 and connected cases 173

Kumar was news editor, Mathrubhoomi Daily, Thiruvananthapuram, DW7

G.Govind was chief reporter, Malayala Manorama, Thiruvananthapuram

Bureau and DW8 Arunkumar K. was senior reporter, Asianet News. On

going through their testimonies, we see that the defence counsel wanted to

establish that distorted news items about the incident appeared in the print

and electronic media and they were published without properly verifying

the truth. Mathrubhoomi and Malayala Manorama News Papers are

produced and marked on the defence side to show that news relating to

death of Harihara Varma was published on 25.12.2012. DWs 3 and 7

deposed that their local reporters furnished information about the incident.

DW8 also deposed that through Asianet News, this news item was

telecast. It has come out in evidence that there was a press meeting

conducted by police officers on 05.01.2013 after arresting accused 1 to 5.

DW6 Hemachandran was the Additional Director General of Police

(ADGP), South Zone and he conducted the press briefing. DW6 admitted

in chief-examination that he held a press meeting in the City Police

Commissioner's Office although he did not remember the date. DW6

testified that the press meeting was after taking some of the accused

persons into custody. DW6 further deposed that the accused were not

exhibited in the press briefing. Defence case is that print and electronic

media published news items with ornamentations and embellishments to

the accused's prejudice. To substantiate this contention, many questions

were put to the aforementioned witnesses. When we go through the Crl.Appeal No.567 of 2014 and connected cases 174

testimony of DW6, we do not get a definite answer to the question why

such a press meeting was conducted? Notwithstanding that, we find no

prejudice or disadvantage caused to the accused by holding a press

meeting.

269. We have serious reservations about police officers conducting

press meetings in respect of criminal investigations, which they and media

consider to be sensational. In our view, on many occasions holding press

meetings would spoil the quality of evidence collected during the

investigation. It is our considered opinion, no police officer conducting

investigation into a crime shall be authorised to divulge the facts

ascertained during investigation through media. They should remember

that a criminal case has to be finally decided in a court of law. Police

officers should refrain from airing their personal views in respect of a case

under investigation. They are not expected to reveal before media the

facts ascertained in the course of investigation by questioning material

witnesses or confession made by the accused. It is a common knowledge

that recently the practise of police officers rushing to media with

speculative informations about on going investigations is on the increase.

270. Section 31(3) of the Kerala Police Act, 2011 specifically says

that no person in custody shall be paraded or allowed to be photographed

and no press conference shall be conducted without permission of the

State Police Chief for the purpose of publishing the same in newspaper or

in any visual media. State Police Chief certainly cannot grant such a Crl.Appeal No.567 of 2014 and connected cases 175

permission mechanically and for a mere asking. He is bound to exercise

his discretion judiciously before granting permission. It is the complaint of

the accused in this case that all such precautionary measures have been

flouted here.

271. We may refer to certain executive directions issued by the

Directors General of Police (DGP) from time to time. Executive directive

No.13/2004 dated 26.03.2004 issued from Police Headquarters,

Thiruvananthapuram by the DGP, considering the provisions in Rules 6

and 9 of All India Services (Conduct) Rules, 1968 and Rules 62 and 63 of

Kerala Government Servants (Conduct) Rules, 1960, would show that it

was noticed that many officers of and above the rank of Superintendent of

Police and State Service Police Officers have fallen into the habit of airing

their personal views through media. Expressing anguish over their

conduct, the executive directive was issued.

272. Circular No.9/2008 issued by the DGP on 31.12.2008 permits

interaction with media where considerations of public safety or bolstering

public confidence in security arrangements or getting co-operation from the

public in a policing task, which is to be carried out with the support of the

public, or a matter in which public participation is required are involved.

273. Next circular is Circular No.15/2010 dated 14.03.2010 which

again depreciates divulging details of an on going investigation and

intelligent inputs through media. Tendency to give piecemeal informations

on a daily basis on the progress of investigation is frowned upon. Instead, Crl.Appeal No.567 of 2014 and connected cases 176

it is suggested, a press release in the form of a statement should be given

on completion of the investigation, if the same is actually warranted by the

circumstances, that too after getting permission from competent authority

and without discussing the evidence. Spirit of this circular is laudable.

274. Circular No.24/2014 cautioned police officers that no press

conference shall be conducted without permission of the State Police Chief

for the purpose of publishing the same in the newspaper or in any visual

media.

275. Latest executive directive No.29/2018 is dated 24.09.2018. It

is mentioned inter alia that no officer other than a designated officer shall

have the authority to speak about cases under investigation. If any police

officer of any rank is invited or wishes to participate in a show or discussion

or programme on any media platform, he should get permission of the

State Police Chief by routing a request through proper channel. No doubt,

now a days all directives in these circulars are often flouted with impunity.

276. We may now refer to some of the pronouncements by apex

Court in this regard. In Rajendran Chingaravelu v. R.K.Mishra ((2010) 1

SCC 457). The Supreme Court held thus:

"But the appellant's grievance in regard to media being informed about the incident even before completion of investigation, is justified. There is a growing tendency among investigating officers (either police or other departments) to inform the media, even before the completion of investigation, that they have caught a criminal or an offender. Such crude attempts to claim credit Crl.Appeal No.567 of 2014 and connected cases 177

for imaginary investigational breakthroughs should be curbed. Even where a suspect surrenders or a person required for questioning voluntarily appears, it is not uncommon for the investigating officers to represent to the media that the person was arrested with much effort after considerable investigation or a chase. Similarly, when someone voluntarily declares the money he is carrying, media is informed that huge case which was not declared was discovered by their vigilant investigations and thorough checking. Premature disclosures or "leakage" to the media in a pending investigation will not only jeopardise and impede further investigation, but many a time, allow the real culprit to escape from law. Be that as it may."

277. A bench consisting of three learned Judges in Romila Thapar

and others v. Union of India and others (AIR 2018 SC 4683) held thus:

"...........The use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media. That the police should lend themselves to this process is matter of grave concern."

However, in this case we have already found that the material witnesses

examined on the prosecution side clearly identified the accused not based

on any media publicity. They have furnished valid reasons for developing Crl.Appeal No.567 of 2014 and connected cases 178

acquaintance with and obtaining chances for meeting the accused prior to

commission of the offences and afterwards. On account of the

aforementioned reasons, we find no prejudice caused to the accused by

holding a press conference after arresting accused 1 to 5, especially when

DW6 with responsibility deposed that the accused were not paraded

before the media.

278. DW4 Mani was cited to prove that at the material time, there

was no practice of issuing any application form from KSEB Office,

Vattiyoorkkavu. In fact, this witness was examined to disprove the evidence

adduced by PW8 that he had gone to KSEB office to collect a form and at

that time, he had occasion to see the accused 2, 3 and 5 going along with

the deceased and 6th accused in a car. On a close scrutiny of the

deposition of DW4, we do not find any reason to disbelieve PW8. This

witness was confronted with Ext.D18 and asked whether any application

form was purchased by a person by name Sudarshan (PW8). He

answered that name of the party could not be seen entered as daily, on an

average, about thousand persons could be coming to KSEB Office,

Vattiyoorkkavu. Evidence given by DW4 does not belie the testimony of

PW8.

279. DW5 Dr.Savitha Vijayan was cited to prove that PW4's

evidence is a falsehood. But no material could be elicited through this

witness to doubt the credibility of PW4.

280. In the foregone paragraphs we have mentioned the defence Crl.Appeal No.567 of 2014 and connected cases 179

case regarding approximation in the time of death. From Ext.P172

postmortem certificate, it is discernible that when the postmortem

examination started (10.15 a.m. on 25.12.2012) rigor mortis was fully

established and retained all over the dead body. Further, postmortem

staining was at back, bluish red in colour with postmortem blotches, not

fixed. There was no sign of decomposition. It is specifically mentioned

therein that the body was kept in a cold chamber. According to the

prosecution case, the incident happened between 1.00 and 1.30 p.m. on

24.12.2012.

281. Learned senior counsel for accused 3 to 5 and the learned

counsel appearing for accused 1 and 2 vehementally argued that the time

of death suggested by the prosecution is not established from the

observations in Ext.P172. We may refer to some aspects from "A Text

Book of Medical Jurisprudence and Toxicology" by Modi (24th Edition,

2011). In Chapter XIV, "Post-mortem changes and time since death" have

been dealt with by the learned author. Under a sub-heading "Late signs of

death", the learned author classified cadaveric changes in the muscles into

(i) primary relaxation or flaccidity, (ii) cadaveric rigidity or rigor mortis and

(iii) secondary relaxation.

282. In the matter of cadaveric rigidity or rigor mortis, it is opined by

Modi that it comes on immediately after the muscles have lost the power of

contractility and is due the irreversible changes in the muscles of the body,

both voluntary and involuntary. Indisputably, rigor mortis generally occurs Crl.Appeal No.567 of 2014 and connected cases 180

whilst the body is cooling. Owing to the setting in of rigor mortis, all the

muscles of the body become stiff, hard, opaque and contracted. Rigor

mortis first appears in the involuntary muscles and then in the voluntary

muscles. In the heart, it appears as a normal rule within an hour after

death. In the voluntary muscles, rigor mortis follows a definite course. We

shall quote the relevant passage from the text book (see page 343):

"In the voluntary muscles, rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected, are the small muscles of the fingers and toes. It passes off in the same sequence."

283. Regarding its time of onset and duration, the learned author

expresses his views as follows:

"Time of onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India, it usually commences in one to two hours after death.

Duration.-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three Crl.Appeal No.567 of 2014 and connected cases 181

hours, and the longest forty hours. In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is still, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination."

284. Learned author further says about the condition simulating

rigor mortis. According to him, heat stiffening, cold stiffening and cadaveric

spasm or instantaneous rigor are the conditions which simulates rigor

mortis. Deceased Varma's body was kept in a cold chamber as is evident

from Ext.P172. In this context, following observations from Modi's text book

may be relevant:

"Cold Stiffening.- The stiffening of the muscles occurs in a body from solidification of its fat when it is exposed to a freezing temperature. In infants, the stiff skin folding round the neck due to exposure to cold may simulate a ligature mark of strangulation, but they are not associated with any evidence of injury such as abrasion or peteche. On forcibly flexing the joints, the frozen synovial fluid exhibits crackling of ice. If the body is moved to a warmer atmosphere, the stiffening rapidly disappears and normal Crl.Appeal No.567 of 2014 and connected cases 182

rigor mortis develops, but it lasts only for a short time."

285. Learned author opined that cadaveric spasm or instantaneous

rigor could be found in a sudden asphyxial death, but nothing of that sort is

seen here because of the time gap between the death and post-mortem.

286. Going by the opinion expressed by Modi in his text book, the

observation in Ext.P172 that rigor mortis was fully established and retained

over body of the deceased could only be due to the fact that it was moved

from a cold chamber to a warmer atmosphere. In that case, stiffening

would rapidly disappear and normal rigor mortis would develop, but it could

last only for a short time.

287. PW69, when cross-examined, deposed that the time of death

could be minimum of four hours before his body was placed in the cold

chamber. When it was put to PW69 that during winter the average time for

the onset of rigor mortis could be three to four hours, he answered that he

had not conducted any study on that subject. Despite a lengthy and

searching cross-examination done by the defence counsel on PW69, we

find no valid reason brought out to accept the defence contention that the

time of incident could not have been between 1.00 - 1.30 p.m. on

24.12.2012. Moreover, the answers elicited from PW69 are totally

insufficient to discard the reliable oral evidence of the witnesses referred to

above.

288. We have already dealt with the substantive contentions raised

by the learned counsel for the accused. We shall now look into some other Crl.Appeal No.567 of 2014 and connected cases 183

contentions raised by them before conclusion of the points under

discussion.

289. Learned counsel for the 1st accused contended that there is no

evidence to show that the same chloroform obtained by the 1st accused

from PW14 was used on deceased Varma. True, there is no material to

hold so. But, undeniable aspect revealed through the testimony of PW14 is

that the 1st accused sometime in August-September, 2012 took away a

bottle of chloroform from his clinic on the pretext that it was needed for his

niece studying in a Medical College. As seen from the testimonies of PWs

40 and 66, chloroform was administered to the deceased in order to stun

him. Whether chloroform taken from PW14 itself was used or not is

immaterial in this case. Collection of chloroform from PW14 could be taken

as a preparation by the 1st accused for committing the crime. We,

therefore, hold that absence of evidence regarding which chloroform was

used for the crime is not a reason to discard the prosecution case.

290. Another contention raised by the learned counsel for the 1 st

accused that non-examination of CW18 Rafeeq is fatal to the prosecution

case cannot be accepted for the simple reason that the 1st accused, when

testified as DW2, himself admitted that he came into contact with deceased

Varma through CW18. He had no other role except introducing the 1 st

accused to deceased Varma. Therefore, his non-examination is not

material.

291. Yet another argument raised by the learned counsel that the 1st Crl.Appeal No.567 of 2014 and connected cases 184

accused or anyone at his instance would not have attempted to rob fake

stones is also not acceptable for the reasons that we have already seen

from the testimony of PW35 and the records produced by her showing that

the stones were not fake or totally valueless. They were only of lesser

value than claimed by deceased Varma. Even PW12 has no case that the

stones kept by deceased Varma were mere glass pieces. Therefore, this