# R. SHAJI v. STATE OF KERALA - **Citation:** [2013] 3 S.C.R. 1172 - **Court:** Supreme Court of India - **Decided:** 2013-02-04 - **Case number:** Criminal Appeal No. 1774 of 2010 - **Bench:** Dr. B.S. Chauhan, V. Gopala Gowda - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-shaji-v-state-of-kerala-28891 - **Pages:** 35 ## Headnote Penal Code, 1860 - s.302 rlw s.1208 - Murder - Criminal conspiracy -Dismembered parts of victim's body C recovered from a lake - Case based on circumstantial evidence against accused-appellant and other accused persons - Conviction of appellant - Justification - Held: Justified - Evidence on record clearly established that appellant had adequate reason to harbour animosity towards o the victim 'P', as he may well have been unable to tolerate the intimacy that 'P' had developed with appellant's wife - PW testified that appellant had threatened that in the event that he was able to lay his hands on 'P', he would chop him up into pieces - The motive thus stood proved - Victim last seen E with appellant (A-1) and A-2 - Recovery of chopper at the behest of appellant - Injuries revealed by post-mortem report established that dismemberment of parts of the body was possible by using a weapon like chopper· - Victim's skull recovered on basis of disclosure statement of appellant - F Use of vehicle in the crime also stood proved - Appellant clearly involved in conspiracy ·to eliminate 'P' - Prosecution proved its case beyond reasonable doubt. Code of Criminal Procedure, 1973 - ss.161 and 164 - Statements uls.161 and u/s.164 - Difference - Held: G Statements uls.161 can be used only for the purpose of contradiction - Statements u/s. 164, however, can be used for both corroboration and contradiction - Evidence Act, 1872 - s.157. H 1172 R. SHAJI v. STATE OF KERALA 1173 Code of Criminal Procedure, 1973 - s.164 - Object ofA Discussed. Criminal Law - Criminal conspiracy - Proof - Held: B Offence of criminal conspiracy can be proved, either by adducing circumstantial evidence, or by way of necessary implication - However, if the circumstantial evidence is incomplete or vague, it becomes necessary for the prosecution to provide adequate proof, by adducing substantive evidence in court - In order to constitute the offence of conspiracy, it is not necessary that the person C involved has knowledge of all the stages of action - Mere knowledge of the main object/purpose of conspiracy, would warrant the attraction of relevant penal provisions. Evidence - Weapon of offence - Recovered at the behest of the accused - Blood stuck on the weapon - Failure D by sero/ogist to detect origin of the blood due to dis-integration of the serum - Effect - Held: It does not mean that the blood stuck on the weapon of offence could not have been human blood at all - Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes E and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question - However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this F regard - Once recovery was made in pursuance of disclosure by the accused, the matching or non-matching of the blood group (s) lost its' significance. '· Evidence Act, 1872 - s.3 - Appreciation of evidence - Jn civil case and in criminal case - Held: Basis for G appreciating evidence in a civil or criminal case is same - However, since in a criminal case, the life and liberty of a person is involved, by way of judicial interpretation, courts have created the requirement of a high degree of proof. H 1174 SUPREME COURT REPORTS (2013) 3 S.C.R. A Evidence Act, 1872 - s.9 - Test identification parade - Held.· Conducting a test identification parade is meaningless if the witnesses know the accused, or if they have been shown his photographs, or if he has been exposed by the media to the public - In the instant case, just after the incident took B place, the main accused being a highly ranked police official, wide publicity was given to the same by the media - Moreover, the witnesses made it clear that they were acquainted with the appellant - In such fact-situation, holding/ non-holding of Test Identificat ## Text _Characters 0–39,860 of 69,260. This is a partial read: ask again with offset=39860 for what follows._ A B [2013] 3 S.C.R. 1172 R. SHAJI v .. STATE OF KERALA. (Criminal Appeal No. 1774 of 2010) FEBRUARY 4, 2013 [DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.] Penal Code, 1860 - s.302 rlw s.1208 - Murder - Criminal conspiracy -Dismembered parts of victim's body C recovered from a lake - Case based on circumstantial evidence against accused-appellant and other accused persons - Conviction of appellant - Justification - Held: Justified - Evidence on record clearly established that appellant had adequate reason to harbour animosity towards o the victim 'P', as he may well have been unable to tolerate the intimacy that 'P' had developed with appellant's wife - PW testified that appellant had threatened that in the event that he was able to lay his hands on 'P', he would chop him up into pieces - The motive thus stood proved - Victim last seen E with appellant (A-1) and A-2 - Recovery of chopper at the behest of appellant - Injuries revealed by post-mortem report established that dismemberment of parts of the body was possible by using a weapon like chopper· - Victim's skull recovered on basis of disclosure statement of appellant - F Use of vehicle in the crime also stood proved - Appellant clearly involved in conspiracy ·to eliminate 'P' - Prosecution proved its case beyond reasonable doubt. Code of Criminal Procedure, 1973 - ss.161 and 164 - Statements uls.161 and u/s.164 - Difference - Held: G Statements uls.161 can be used only for the purpose of contradiction - Statements u/s. 164, however, can be used for both corroboration and contradiction - Evidence Act, 1872 - s.157. H 1172 R. SHAJI v. STATE OF KERALA 1173 Code of Criminal Procedure, 1973 - s.164 - Object ofA Discussed. Criminal Law - Criminal conspiracy - Proof - Held: B Offence of criminal conspiracy can be proved, either by adducing circumstantial evidence, or by way of necessary implication - However, if the circumstantial evidence is incomplete or vague, it becomes necessary for the prosecution to provide adequate proof, by adducing substantive evidence in court - In order to constitute the offence of conspiracy, it is not necessary that the person C involved has knowledge of all the stages of action - Mere knowledge of the main object/purpose of conspiracy, would warrant the attraction of relevant penal provisions. Evidence - Weapon of offence - Recovered at the behest of the accused - Blood stuck on the weapon - Failure D by sero/ogist to detect origin of the blood due to dis-integration of the serum - Effect - Held: It does not mean that the blood stuck on the weapon of offence could not have been human blood at all - Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes E and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question - However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this F regard - Once recovery was made in pursuance of disclosure by the accused, the matching or non-matching of the blood group (s) lost its' significance. '· Evidence Act, 1872 - s.3 - Appreciation of evidence - Jn civil case and in criminal case - Held: Basis for G appreciating evidence in a civil or criminal case is same - However, since in a criminal case, the life and liberty of a person is involved, by way of judicial interpretation, courts have created the requirement of a high degree of proof. H 1174 SUPREME COURT REPORTS (2013) 3 S.C.R. A Evidence Act, 1872 - s.9 - Test identification parade - Held.· Conducting a test identification parade is meaningless if the witnesses know the accused, or if they have been shown his photographs, or if he has been exposed by the media to the public - In the instant case, just after the incident took B place, the main accused being a highly ranked police official, wide publicity was given to the same by the media - Moreover, the witnesses made it clear that they were acquainted with the appellant - In such fact-situation, holding/ non-holding of Test Identification Parade lost its significance. c Evidence Act, 1872 - s.134 - Evidence of witness - Appreciation of - Held: It is not the number of witnesses, but the quality of their evidence which is important - Evidence must be weighed and not counted. o The prosecution cc.se was based on circumstantial evidence. A chopper (M.0.4) used for dismembering the victim ('P') was recovered at the instance of the appellant. A Maruti Van (M.0.5) was also similarly recovered. Charge sheet was filed against five persons, including the E appellant. The trial however, could be conducted only against two persons, as all the others were absconding. The appellant (A-1) was convicted under Section 302 read with Section 120-8 of IPC, and sentenced to life imprisonment. A-2 too was sentenced to undergo F imprisonment for life. Both the accused were also convicted under Section 201 read with Section 120-B IPC and also under Section 364 read with Section 120-B IPC. Aggrieved, both of them preferred Criminal Appeal which G was dismissed by the High Court. In the instant appeal, the conviction of appellant was inter alia challenged on grounds - that there was no motive for the appellant to cause death of 'P'; that though appellant/A-1 and A-2 were arrested, no Test Identification H Parade was conducted; that the statements of witnesses R. SHAJI v. STATE OF KERALA 1175 as recorded under Section 164 CrPC were not exhibited before the court for purpose of corroboration and confrontation; and that as the blood group of the blood stains found on the alleged weapon of offence i.e. the chopper could not be ascertained, the recovery of the chopper could not be relied upon. The question that therefore arose for consideration was whether anyone apart from the appellant could have committed the murder of 'P' and that the various circumstances that stood proved, pointed only towards the guilt of the appellant. Dismissing the appeal, the Court HELD: 1.1. 'P' (deceased), was a victim of homicide, and the dismembered parts of the body recovered from the lake were those of 'P', as the same stood proved by the DNA report. The recovery of other articles also stood proved. Some police officers collected samples of blood stains from the floor of a van and also some hair. The said hair did in fact, belong to 'P'(deceased), and thus, the use of the said vehicle in the crime stood proved. The recovery of the chopper (M.0.4) stood proved by PW.5. [Paras 6,7, 8 and 9J [1189-D-E-G; 1190-E-F, HJ A B c D E 1.2. As per the deposition of PW.77, the appellant made a disclosure statement to the effect that P's body F was mutilated using the chopper (M.0.4). The said chopper was recovered from the lake on the basis of such disclosure statement made by the appellant as he had exclusive knowledge as regards the place of concealment. Recovery of the said chopper at the behest of the appellant G cannot be doubted. [Para 10J [1191-B-C, DJ 1.3. The chopper (M.0.4) was recovered by a Scientific Assistant, who deposed that the. chopper had blood stains and hair stuck on it. PW. 71, a Forensic Surgeon H 1176 SUPREME COURT REPORTS [2013] 3 S.C.R. A deposed that the dismemberment of the body of the deceased could certainly have been possible with the said chopper. So far as the recovery of the skull of 'P' (deceased) is concerned, the same was also made on the basis of the disclosure statement of the appellant. A glove B and a plastic rope were also recovered at his behest, and in light of the aforementioned circumstances, it cannot be doubted that the said recoveries suffered from any illegality. [Para 11] [1191-E-F, G] 2.1. Statements under Section 161 Cr.P.C. can be C used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. [Para 14] [1193-D] 2.2. So far as the statement of witnesses recorded D under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. [Para 15] E [1193-F-G] Jogendra Nahak & Ors. v. State of Orissa & Ors. AIR 1999 SC 2565: 1999 (1) Suppl. SCR 39; Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd & Ors. AIR 2000 SC 2901: 2000 (2) Suppl. SCR 162; Ram F Charan & Ors. v. The State of U.P. AIR 1968 SC 1270: 1958 SCR 354 and Dhanabal & Anr. v. State of Tamil Nadu AIR 1980 SC 628: 1980 (2) SCR 754 - relied on. Mamand v. Emperor AIR 1946 PC 45; Bhuboni Sahu v. G King AIR 1949 PC 257 - referred to. 3.1. Once a recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group (s) loses significance. H [Para 17] [1194-H; 1195-A] R. SHAJI v. STATE OF KERALA 1177 3.2. No advantage can be conferred upon the A accused to enable him to claim any benefit, and the report of dis-integration of blood etc. cannot be termed as a missing link, on the basis of which the chain of circumstances may be presumed to be broken. [Para 18] [1195-C-D] B Prabhu Babaji Navie v. State of Bombay AIR 1956 SC 51; Raghav Prapanna Tripathi v. State of UP. AIR 1963 SC 74: 1963 SCR 239; State of Rajasthan v. Teja Ram AIR 1999 SC 1776: 1999 (2) SCR 29; Gura Singh v. State of Rajasthan C AIR 2001 SC 330: 2000 (5) Suppl. SCR 408; John Pandian v. State represented by Inspector of Police, Tamil Nadu (2010) 14 SCC 129 and Dr. Sunil Clifford Daniel v. State of Punjab JT 2012 (8) SC 639 - relied on. 4. In a case of circumstantial evidence, motive may D be considered as a circumstance, which is a relevant factor for the purpose of assessing evidence, in the event that there is no unambiguous evidence to prove the guilt of the accused. However, the absence of motive in a case depending entirely on circumstantial evidence, is a factor E that weighs in favour of the accused as it "often forms the fulcrum of the prosecution story". [Para 19] [1195-E-G] Babu v. State of Kera/a (2010) 9 SCC 189: 2010 (9) SCR 1039; Kulvinder Singh & Anr. v. State of Haryana AIR 2i>11 SC 1777: 2011 (4) SCR 817 and Dandu Jaggaraju v. State of A.P. AIR 2011 SC 3387: 2011 SCR 342 - relied on. F 5. In the instant case, the evidence on record clearly established, that the appellant had adequate reason to harbour animosity towards 'P', as he may well have been G unable to tolerate the intimacy that the deceased had developed with his wife. [Para 20] [1195-H; 1196-A] 6. In the matter of appreciation of evidence of witnesses, it is not the number of witnes.ses, but the H 1178 SUPREME COURT REPORTS [2013] 3 S.C.R. A quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not B counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. It is the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. [Para 22] [1197-E-G] c Vadivelu Thevar v. State of Madras AIR 1957 SC 614; Jagdish Prasad v. State of M.P. AIR 1994 SC 1251; Sunil Kumar v. State Govt. of NCT of Delhi AIR 2004 SC 552: 2003 (4) Suppl. SCR 767; Namdeo v. State of Maharashtra AIR 2007 SC (Supp) 100; Kunju @ Balachandran v. State of D Tamil Nadu AIR 2008 SC 1381: 2008 (1) SCR 781; Bipin Kumar Monda/ v. State of West Bengal AIR 2010 SC 3638: 2010 (8) SCR 1036; Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626 and Kish an Chand v. State of Haryana JT 2013(1) SC 222 - relied on. E 7. It is a settled legal proposition that the conviction of a person accused of committing an offence, is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances, such F conviction may also be based solely on circumstantial evidence. For this to happen, the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. [Para 23] [1198-C-D] G Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622: 1985 (1) SCR 88; Paramjeet Singh @ Pamma v. State of Uttarakhand AIR 2011 SC 200: 2010 (11) SCR 1064 - relied on. H 8. A criminal conspiracy is generally hatched in R. SHAJI v. STATE OF KERALA 1179 secrecy, owing to which, direct evidence is difficult to A obtain. The offence can therefore be proved, either by adducing circumstantial evidence, or by way of necessary implication. However, in the event that the circumstantlal evidence is incomplete or vague, it becomes necessary for the prosecution to provide adequate proof regarding B the meeting of minds, which is essential in order to hatch a criminal conspiracy, by adducing substantive evidence in court. Thus, an agreement between two persons to do, or to cause an illegal act, is the basic requirement of the offence of conspiracy under the penal statute. [Para 31) c [1203-F-H; 1204-A-B] Mir Nagvi Askari v. CBI AIR 2010 SC 528: 2009 (13) SCR 124; Ba/dev Singh v. State of Punjab AIR 2009 SC Supp. 1629: 2009 (7) SCR 855; State of MP. v. Sheet/a Sahai AIR 2009 SC Supp. 1744:; R. Venkatkrishnan v. CBI D AIR 2010 SC 1812: 2009 (12) SCR 762; S. Arul Raja v. State of T.N. (2010) 8 SCC 233; Monica Bedi v. State of A.P. (2011) 1 SCC 284: 2010 (13) SCR 522 and Sushi/ Suri v. CBI AIR 2011 SC 1713: 2011 (8) SCR 1 - relied on. 9. It cannot be said that as the witnesses PW.8 and PW.11 have admitted in their cross-examination, that they have been the accused persons in certain other criminal cases, their testimony should not have been relied upon E by the courts below, for the reason that the law does not F prohibit taking into consideration even the evidence provided by an accomplice, who has not been put to trial. The evidence provided by a person who has not been put to trial, and who could not have been tried jointly with the accused can be considered, if the court finds his G evidence reliable, and conviction can also safely be based upon it. However, such evidence is required to be considered with care and caution. [Para 32) [1204-C-F] Laxmipat Choraria & Ors. v. State of Maharashtra AIR 1968 SC 938: 1968 SCR 624; Chandran alias Manichan H 1180 SUPREME COURT REPORTS [2013] 3 S.C.R A alias Maniyan & Ors. v. State of Kera/a AIR 2011 SC 1594: 2011 (8) SCR 273 and Prithipal Singh & Ors. v. State of Punjab & Anr. (2012) 1 SCC 10: 2012 (14) SCR 862 - relied on. 10.1. The evidence from a test identification parade B is admissible under Section 9 of the Evidence Act, 1872. A test identification parade cannot be claimed by an accused as a matter of right. Mere identification of an accused in a test identification parade is only a circumstance corroborative of the identification of the C accused in court. Further, conducting a test identification parade is meaningless if the witnesses know the accused, or if they have been shown his photographs, or it he has been exposed by the media to the public. [Para 33] [1205B-E] 10.2. In the instant case, the witnesses, particularly PW.8, PW.9, PW.11 and PW.12, made it clear that they were acquainted with the appellant since he was posted in the control room of their city. Moreover, just after the incident took place, the same being a sensitive case L wherein the main accused was a highly ranked official of the police department, wide publicity was given to the same by the media. In light of the aforementioned factsituation, the holding/non-holding of a Test Identification Parade loses its significance. Moreover, the defence did not put any question to PW.77, the investigating officer in relation to why such Tl Parade was not held. (Para 34] ["1205-F-G] Vijay@ Chinee v. State of MP. (2010) 8 SCC 191: 2010 (8) SCR 1150; Santokh Singh v. lzhar Hussain & Anr. AIR G 1973 SC 2190: 1974 (1) SCR 78; State of Himachal Pradesh v. Lekh Raj & Anr. AIR 1999 SC 3916: 1999 (4) Suppl. SCR 286; Ma/khan Singh & Ors. v. State of MP. AIR 2003 SC 2669: 2003 (1) Suppl. SCR 443 and Munna Kumar Upadhyay v. State of A.P. AIR 2012 SC 2470: 2012 (6) SCC H 174 ··-relied on. R. SHAJI v. STATE OF KERALA 1181 11. The prime witness of the prosecution has no doubt A been PW.12, and in relation to him, the submission advanced on behalf of the appellant that the High Court had entirely disbelieved his testimony, is factually incorrect. There is no cogent reason to disbelieve the testimony of PW12 in toto. [Para 35] [1205-H; 1206-A-B, C] B Case Law Reference: 1999 (1) Suppl. SCR 39 relied on Para 15 2000 (2) Suppl. SCR 162 relied on Para 15 c AIR 1946 PC 45 referred to Para 16 AIR 1949 PC 257 referred to Para 16 1968 SCR 354 relied on Para 16 1980 (2) SCR 754 relied on Para 16 D AIR 1956 SC 51 relied on Para 17 1963 SCR 239 relied on Para 17 1999 (2) SCR 29 relied on Para 17 E 2000 (5) Suppl. SCR 408 relied on Para17 (2010) 14 sec 129 relied on Para 17 JT 2012 (8) SC 639 relied on Para 17 F 2010 (9) SCR 1039 relied on Para 19 2011 (4) SCR 817 relied on Para 19 2011 SCR 342 relied on Para 19 G AIR 1957 SC 614 relied on Para 22 AIR 1994 SC 1251 relied on Para 22 2003 (4) Suppl. SCR 767 relied on Para 22 H 1182 SUPREME COURT REPORTS [2013] 3 S.C.R. A AIR 2007 SC (Supp) 100 relied on Para 22 2008 (1) SCR 781 relied on Para 22 2010 (8) SCR 1036 relied on Para 22 8 (2011) 9 sec 626 relied on Para 22 JT 2013(1) SC 222 relied on Para 22 1985 (1) SCR 88 relied on Para 23 2010 (11) SCR 1064 relied on Para 23 c 2009 (13) SCR 124 relied on Para 31 2009 (7) SCR 855 relied on Para 31 AIR 2009 SC Supp. 1744 relied on Para 31 D 2009 (12) SCR 762 relied on Para 31 (2010) s sec 233 relied on Para 31 2010 (13) SCR 522 relied on Para 31 E 2011 (8) SCR 1 relied on Para 31 1968 SCR 624 relied on Para 32 2011 (8) SCR 273 relied on Para 32 2012 (14) SCR 862 relied on Para 32 F 2010 (8) SCR 1150 relied on Para 33 1974 (1) SCR 78 relied on Para 33 1999 (4) Suppl. SCR 286 relied on Para 33 G 2003 (1) Suppl. SCR 443 relied on Para 33 2012 (6) sec 114 relied on Para 33 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal H No. 1774 of 2010. R. SHAJI v. STATE OF KERALA 1183 From the Judgment & Order dated 10.12.2009 of the High A Court of Kerala at Ernakulam in Crl. A.No. 86 of 2006. Dr. S. Gopakumaran Nair, T.G. Naray~nan Nair, K.N. Madhusoodhanan for ttie Appellant. . . R. Basanth, Ramesh Babu M.R., Karthik Ashok, P.V. B Dinesh for the Respondent. The Judgment of the Court was delivered by DR. B.S: CHAUHAN, J. 1. This appeal has been preferred C against the judgment and order dated 10.12.2009 delivered by the Kerala High Court at Ernakulam in Criminal Appeal No. 86 of 2006, by way of which it has affirmed the judgment and order of the Sessions Court, Kottayam dated 3.1.2006, passed in Sessions Case No. 145 of 2005. 2. Facts and circumstances giving rise to this appeal are: A. As per the case of the prosecution, the appellant at the relevant time had been working as the Deputy Superintendent of Police at Malappuram, and his wife was living at Palluruthy, and was using a vehicle which was driven by Praveen (deceased). He was also related to the appellant. Praveen developed an illicit relationship with the appellant's wife, and the appellant was informed of this development by his Manager, D E . Aji. The appellant reached Palluruthy, and made enquiries about F the situation from Praveen and others, an!l his relatives tried to resolve the aforesaid matter. In the presence of other relatives, the matter was then amicably settled. Praveen (deceased}, was asked not to come to appellant's house thereafter, and thus Praveen left and began working in a shop G at Ettumanoor, as a driver. 8. During this period, on 25/26.11.2004, Vijayamma, relative of Praveen (deceased), and N. Sahadevan PW.2's father, informed Pavithran (PW.1), father of Praveen, that Praveen was in danger as Vijayamma had found out about the H 1184 SUPREME COURT REPORTS (2013] 3 S.C.R. A illicit relationship that Praveen had developed with the appellant's wife. C. N. Sahadevan, PW.2's father informed Pavithran (PW.1 ), Praveen's father who resided at Trivendrum, via the B telephone of this danger to Praveen's life. Pavithran (PW.1) immediately informed his brother and requested him to help Praveen, as he may not be spared by the appellant. N. Sahadevan, PW.2's father, went and brought Praveen to his own house, whilst informing everybody, that his mother was seriously ill. The appellant asked N. Sahadevan, PW.2's father, C in conversation over the telephone about Praveen, and directed him to bring Praveen back. PW.2's father then took Praveen back. When the meeting took place in the presence of various relatives, the appellant (A-1), attempted to assault Praveen, but they were separated by other persons. Praveen pleaded his D innocence, and told the appellant that Aji had played this dirty game for some personal gain. However, when Aji was called to participate in the said meeting, he stood by his version of events and stated that he had seen Praveen and the appellant's wife in a compromising position. The appellant told Praveen to E leave the said place and to not enter the city. D. Praveen was brought by Jilesh M.S. (PW.2), and taken to Trivendrum for treatment. Praveen told his father after a period of 213 days that it was not safe for him to stay in hospital F as 2/3 gundas had been roaming around in the hospital. Thus, he went back to the city and sought employment. E. On 15.2.2005, Divakaran (PW.7), neighbour ofVinu (A2), while coming out of a bus stop, saw Vinu (A-2) coming on a motor bike while Praveen was standing in the market. Vinu G (A-2), stopped the bike and took Praveen towards Kottayam. H They then went to a bar, had drinks as were served to them by Saiju (PW.9), and came out of the bar at 8.30 p.m., after which they ate at a 'thattukada' (a small petty shop), where they were served by Jose (PW.8), an employee of the 'thattukada'. R. SHAJI v. STATE OF KERALA 1185 [DR. B.S. CHAUHAN, J.] Mohammed Sherif@ Monai (PW.13), who was the owner of A the 'thattukada', saw the appellant (A-1), coming in a Maruti car. In the said car, there were also some other persons. They had coffee, as was served to them by Jose (PW.8), and seen by Mohammed Sherif@ Monai (PW.13). The appellant (A-1) went back to the car and started driving. Other persons also 8 joined him, and Vinu (A-2), along with Praveen, left on a Motor Cycle. Vinu (A-2) lifted his hand and proceeded further. The Maruti Van followed them. They all left the city at about midnight, and drove into the jungle. F. Shanavas (PW.12), an auto-rickshaw driver carrying C patients to the Medical College, Kottayam found one motor cycle parked on the side of the road. As he had slowed down seeing the vehicles on the road, he also saw two persons coming out of the van. The pillion rider of the motor cycle sat in the van and after he got into the van, the van left immediately. D The motor bike also started. He noted the registration number of the van, and also that of the motor bike. G. Mohan an (PW.10), another auto rickshaw driver saw the Maruti Van parked on the road and a person standing near E it. Mohanan (PW.10), stopped his auto and asked him what had happened, however he only replied that a person had gone nearby. Thus, Mohanan (PW.10) left the place. H. On 16.2.2005, a pair of human legs was found floating in the backwaters of the Vembanad lake (hereinafter referred to as the 'lake') at Kottayam, by a person who thereafter lodged a complaint to Subhah K. (PW.68), Sub-Inspector of the Kottayam West Police, on the basis of which, an FIR was registered. I. On 18.2.2005, Pavithran (PW.1) lodged an FIR in the Police Station alleging that his son Praveen had gone missing, and that after he became aware of the same, he had spent the last 3/4 days searching for him, but had been still unable to trace him. F G H 1186 SUPREME COURT REPORTS (2013] 3 S.C.R. A J. On 19.2.2005, a torso in a plastic bag, was seen floating on the eastern side of the lake. Upon obtaining requisite information, K.M. Antony (PW.17), Circle Inspector of Vaikom, reached the scene and Pavithran (PW.1) also identified the torso, to be that of his son. While the inquest of the torso was B being conducted, a pair of hands was seen floating in the lake. K.M. Antony (PW.17) recovered the same and conducted inquest. Pavithran (PW.1) identified the hands to be those of Praveen as well. C K. After the completion of the preliminary enquiry, the appellant and Vinu (A-2), were arrested on 24.2.2005. The house of the appellant (A-1) was searched by K.M. Anto (PW.74), Circle Inspector of Police, Kottayam West and there was recovery of M.Os. 13 to 18, under Exts. P.17 and 18 Mahazars. B. Muralidharan Nair (PW.77), Dy.S.P., Kottayam, D received information that a human head in a plastic cover, had been spotted on the shores of the back waters of the lake. The head was then recovered and inquest prepared. B. Muralidharan Nair (PW.77) obtained custody of the accused from court. The chopper (M.0.4), alleged to have been used in E the said crime was recovered at the instance of the appellant. A Maruti Van (M.0.5) was also recovered after information was furnished by the appellant (A-1), to the effect that the said Maruti Van had also been used. F L. After having completed the investigation, a charge sheet was filed against five persons, including the appellant. The trial however, could be conducted only against two persons, i.e. the appellant (A-1) and Vi nu (A-2), as all the others were absconding. Subsequent to the trial of this case, A-3 and A-4 G were also apprehended, put to trial separately, and convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC'). A-5 is still absconding. H M. So far as the present case is concerned, the appellant (A-1) was convicted under Section 302 read with Section 120- R. SHAJI v. STATE OF KERALA 1187 [DR. B.S. CHAUHAN, J.] B of the IPC, and was awarded a sentence of life imprisonment A and a fine of Rs. one lakh, in default of which, he would undergo SI for a period of one year. Vinu (A-2) was sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- only, in default of which, he would undergo SI for 3 months. Both the accused were also convicted under Section 201 read with 8 · Section 120-B IPC, and sentenced to imprisonment for a period of 3 years, and a fine of Rs.2,000/- each, in default of which, they would undergo SI for a period of 3 months each. They were further convicted under Section 364 read with Section 120-B IPC, and sentenced to undergo RI for a period C of 7 years each, and to pay a fine of Rs.5,000/- each, in default of which, they would undergo SI for a period of one year. All the sentences were directed to run concurrently. N. Aggrieved, both of them preferred Criminal.Appeal No. 86 of 2006, which was dismissed by the High Court vide D judgment and order dated 10.12.2009. Hence, this appeal. 3. Sh~i S. Gopakumaran Nair, learned senior counsel appearing for the appellant, has submitted that there was no motive for the appellant to cause death of Praveen. It is a case E of circumstantial evidence as there is no eye-witness to the actual incident of killing. The chain of circumstances is not complete. Haridas (PW.14), an auto-rickshaw driver had seen the appellant and others only for a fleeting moment. Though the appellant and Vinu (A-2) were arrested, no Test Identification F Parade was conducted. The statements of witnesses were recorded under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P .C.') by a Magistrate who did not even mention the date of recording such statements, such statements were not exhibited before the G court for the purpose of corroboration and confrontation. Jose (PW.8), Shanavas (PW.12), and Mohamamed Sherif@ Monai (PW.13), identified Praveen (deceased), by seeing only his passport sized photograph. This is not enough as Shanavas (PW .12), had seen the appellant and others including Praveen · H 1188 SUPREME COURT REPORTS [2013] 3 S.C.R A (deceased), only for a brief moment and thus, was unablu to identify them in court after the lapse of a period of several months, during the course of the trial. Different parts of the body were found, and the identification of the dead body, merely on the basis of a mole on the leg of the body cannot be held to be s proper identification by the father, as the dead body was recovered after a lapse of 3/4 days. Different parts of the body were recovered O" different dates and by such time the skin would have ois-integrated entirely. Neither Vijayamma nor Radharima were examined. Aji, who had disclosed information c 'lertaining to the illicit relationship of Praveen with the appellant's wife, was also not examined. A DNA test was conducted on the dead body to determine whether the same was in fact, the body of Praveen (deceased). However, the FSL report disclosed that in respect of the chopper used for the D purpose of dismembering the parts of the body, no blood group could be detected. The whole case of the prosecution hence, becomes unbelievable, and the conviction of the appellant is liable, to be set aside. E F 4. Per contra, Mr. Basant R. learned senior counsel appearing for the State has opposed the appeal, contending that the various circumstances that stood proved, pointed only towards the guilt of the appellant, and that in the light of the facts and circumstances of the case, no one apart from the appellant could have committed the murder of Praveen (deceased). Tl'e DNA test established that the different parts of the body that were recovered from the lake were in fact, those of Praveer There was no reason for the prosecution witnesses, particular!•; Jose (PW.8), Mohanan (PW.10), Shanavas (PW.12) and Mohamamed Sherif @ Monai (PW.13), to depose against the G appellant and both the courts below also have found their evidence to be trustworthy. Jose (PW.8) and Mohamamed Sherif @ Monai (PW.13) knew the appellant, as well as Vinu (A-2) and Praveen (J.:.ceaseJ). Therefore, holding a Tl Parade would have been a mere formality. Though, Mohanan (PW.10) and Shanavas (PW.12), the auto rickshaw drivers, were ch<•r11ce H R. SHAJI v. STATE OF KERALA 1189 [DR. B.S. CHAUHAN, J.] witnesses, their presence cannot be doubted as 1t is an A ordinary circumstance that patients are taken to the hospital even in the late hours of night, and the said incident had occurred on the road that led to the hospital. There was sufficient light on the road, and the High Court recorded a finding to the effect that Shanavas (PW.12), an auto rickshaw B driver, even if he had been unable to see Praveen, was still able to identify the appellant and others. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. 6. The courts below have appreciated the entire evidence C on record, including the evidence of the defence. The appellant . also examined Ajeesh M. Muraleedharan (DW.1 ), who was a Sub-Editor, Malayala Manorama and thereafter, the High Court concurred with the findings of fact recorded by the Sessions Court on various issues. There is no dispute that Praveen D (deceased), was a victim of homicide, and that the dismembered parts of the body recovered from the lake were those of Praveen, as the same stood proved by the DNA report. The High Court concurring with the opinion of the Sessions Court, held as under: E "The DNA analysis made it clear that the blood samples of the parents of Praveen matched with the DNA of Praveen, deceased and the same proved and established the identity of the dead body as the DNA had also been extracted from the portion of the limbs recovered from the F lake and compared with that of DNA of parents." 7. The recovery of other articles also stood proved as the High Court yet again concurring with the finding recorded by the Sessions Court in this regard, held as under: G "The recovery has been made by the Investigating agency on the statement voluntarily made by the appellant in respect of various materials and the High Court took note of the fact that the appellant was the seasoned polirofficer and unless and until some of the links we.,, A 8 c 1190 SUPREME COURT REPORTS ·. [2013} 3;S.C.R. . I. ,_-... identified and located, nobody c0uld doubt his involvement. · ·The.recovery witnesses have proved.the recoveries.:B. Muraleedharan Nair (P.W;77), stated thatthe seizure was at the behest of the appellant and the vehicle infact recovered belonged to the brother-in-law of Babu (PW.6) and as the owner of the vehicle did not have enough space to park the vehicle in his house, the van was being parked in the compound of Babu (PW.6). The said PW.6 was familiar to the appellant who has deposed thatthe appellant ·had come to him on 15.2.2005 anc! told the said. witness that the appellant's vehicle had developed some trouble and that is why he· wanted. to use the vehicle parked in the house of the said witness. The van was taken by the appellant as aliowed by Babu (PW.6) after taking·the .. • c