Kochu Suresh @ Shiju vs State of Kerala

R. Basant, J.—i) Can the identification of the appellant by PWs.1, 4 & 9 be safely accepted?

ii) Can the evidence of recovery of MO.1 on the basis of the confession statement of the appellant by PW14 be safely accepted to draw assurance and inspiration for the evidence of identification of the appellant by PWs.1, 4 and 9?

iii) Is the accused in the totality of circumstances entitled to the benefit of doubt?

iv) Is the conviction and sentence u/s 302 I.P.C. justified.

These are the questions that are raised for consideration in this appeal.

The appellant/accused challenged the verdict of guilty, conviction and sentence imposed on him under Sections 302, 393 and 394 I.P.C. He has been sentenced to undergo imprisonment for life, rigorous imprisonment for three years and rigorous imprisonment for five years for the said offences. Sentences of fine and default sentences have also been imposed under these sections.

The crux of the allegations against the appellant/accused is that at about 10 p.m. on 3/4/2004 he inflicted a stab injury on the deceased, a person unknown to him, who was sitting in a train that had reached the Thrissur railway station, a little earlier. Prosecution allegation is that the appellant attempted to take away money from the pocket of the deceased and in the course of that attempt inflicted injury on the deceased who resisted the attempt.

Investigation commenced with Ext.P1 F.I. Statement lodged by PW1, another co-passenger in the train at 22.30 hours on the said day. Ext.P20 F.I.R. was registered by PW17 at 22.30 hours and the F.I.R. had reached the court at 10.30 a.m. on 6/4/2004. Investigation was completed and the final report was filed by PW19. Consequent to the order of committal passed by the Committal Court, cognizance was taken by the learned Sessions Judge. The accused denied the charges levelled against him. Thereupon the prosecution examined PWs.1 to 19 and proved Exts.P1 to P31. Mos.1 to 5 were also marked. On the side of the accused, Ext.D1 case diary contradiction was marked when PW10, doctor who treated the deceased was examined. The deceased had succumbed to his injuries on 7/4/2004.

We have heard the detailed arguments advanced by Advocate M.B. Prajith for the appellant and Sri. Noble Mathew, the learned Public Prosecutor of the State. At the outset, we must mention that an appellate judgment is and must be read as a continuation of the judgment of the trial court. The trial court has adverted to the oral and documentary evidence available in the case in detail. All relevant circumstances have also been adverted to by the trial court in detail in the impugned judgment. We do not, in these circumstances, think it necessary to attempt to re-narration of all the materials and evidence available in the case in this appellate judgment. Suffice it to say that we have been taken through the oral evidence of PWs.1 to 19, Exts.P1 to P31 and Ext.D1 in detail. We are not, hence, attempting to re-narrate the facts. Relevant materials and pieces of evidence will be referred to when we discuss the relevant aspects in this judgment.

According to the prosecution, PW1 and a friend of his one Hari were travelling in the unreserved compartment of the Guruvayur-Egmore train. The train had reached Thrissur. The deceased had got into the train at Thrissur. He was sitting on the right front door of the compartment putting his legs outside the compartment. The train was stopped in Platform No. 1. That platform was on the left side of the train. The deceased was sitting on the door on the farther side of the platform. Hari, friend of PW1 was also sitting by the side of the deceased at the door putting his legs outside. PW1 was standing behind both of them in the compartment facing outside. At that point of time, according to the prosecution, the appellant/accused came to the train. He picked up an unnecessary quarrel with the deceased. He shouted at Hari and wanted him to move away. Hari got up. At that stage, the appellant put his hands to the pocket of the deceased and tried to take away money. The deceased resisted the attempt and pushed the accused. The accused who had made attempt while standing on the foot step and holding the train was pushed down, he took out MO.1 knife and planted a stab on the abdomen of the deceased. PW1 and Hari who had witnessed the incident cried aloud. PW1 informed the police Constable who was available on the plat form. The police went to the deceased to take him out of the compartment. PW1 told the constables that the accused had got down from the train, had walked northwards along the railway track on the right side of the parked train and had gone towards the western plat form. An attempt was made by the police and others to trace the accused. The accused was allegedly wearing a red shirt and white dhothi. Accused was traced by PW9, a railway police constable outside plat form No. 3 on the road on the western side. He was chased by PW9. He ran into the Plat Form No. 2. He ran towards north. PW9 attempted to apprehend him. PW4, a railway porter heard the commotion and tried to stop the appellant/accused. The appellant/accused pushed PW4 and he fell on the track. The appellant took to his heels, he could not be apprehended.

In support of the case of the prosecution, the prosecution primarily relied on the oral evidence of PW1, who identified the appellant as the miscreant who had planted the stab on the deceased. PWs.4 and 9 also tendered oral evidence in support of the case of the prosecution and identified the appellant in court. In addition to the oral evidence of PWs.1, 4 and 9, the prosecution relied on the evidence of PW14 about the arrest of the appellant under suspicious circumstances on 8/6/2004. He was taken into custody and Ext.P10 F.I.R. was registered under the caption suspicious arrest. He was interrogated. He allegedly gave a confession statement. The relevant portion of the confession statement is marked as Ext.P11. In that confession statement, he allegedly furnished information about the concealment of MO.1 weapon used by him for commission of the crime. That MO.1 was recovered by PW14 under Ext.P3 in the presence of PWs.4 and 7 on 9/6/2004. MO.1 knife has human blood in it as reported by the Chemical Examiner in Ext.P31.

Thus the prosecution relies on the oral evidence of PWs.1, 4 and 9 about the identification of the appellant on the date of the crime by them and also the evidence of recovery of MO.1 on the basis of the information furnished by the appellant to drive home the charges against the appellant.

The appellant denied all circumstances relied on by the prosecution. In the course of cross examination and when examined u/s 313 Cr.P.C. he took up a defence of total denial. He was not present at the scene of the crime, he asserted. He further asserted that MO.1 was not recovered from his possession. He did not adduce any oral evidence. In the course of 313 Cr.P.C. examination of the accused and when PW14 was cross examined, a stand was taken by the accused that PW14 had arrested him on mere suspicion, that he was brutally manhandled byPW14 and that apprehending that he may lodge a complaint before the Magistrate, totally false allegations were raised against him and he was falsely implicated in this case. No defence witnesses were examined. Ext.D1 was marked.

The learned Sessions Judge, on an anxious consideration of all the relevant inputs, came to the conclusion that the oral evidence of PW1 can be safely accepted. The court further found that the oral evidence of PWs.4 and 9 can also be accepted and such evidence offers assurance for the version of PW1. The learned Judge finally came to the conclusion that it was safe to accept the case of the prosecution that MO.1, which was allegedly used for the commission of the crime was recovered from its place of concealment on the basis of information furnished by the appellant and that the said circumstance can also be made use of to draw inspiration from the version of PW1. Accordingly, the learned Judge proceeded to pass the impugned verdict of guilty, conviction and sentence.

The learned Counsel for the appellant assails the impugned verdict of guilty, conviction and sentence on the following grounds.

1) The court below erred totally and completely in choosing to place reliance on the oral evidence of PW1.

2) The oral evidence of PWs. 4 and 9 must have been totally discarded by the court below and should not have been made use of for any purpose.

3) The court below did not act prudently and realistically in coming to the conclusion that the evidence of recovery of MO.1 on the basis of the alleged confession statement made by him can be accepted.

4) At any rate, the benefit of doubt must have been conceded to the accused.

We shall first consider the evidence of PW1. The evidence of PW1 gets convincing assurance from the contents of the contemporaneous Ext.P1 F.I. statement lodged by him before the railway police station at Thrissur. The F.I.S. was lodged before PW17 at the police station in the premises of the railway station at 22.30 hours. The incident had been taken place earlier at 22 hours on the same day. We have the evidence of PW1 as well as PW17 on this aspect. On broad probabilities, we are of the opinion that Ext.P1 can afford assurance, which a court looks for, for the evidence of a witness like PW1.

The evidence of PW1 is attacked on several grounds. He was a ticketless traveler. He does not have a permanent abode. According to him, in Ext.P1 he was working at random in connection with temple festivals. In evidence, he stated that he was working in hotels at Guruvayur. He was not able to name the hotels. According to the appellant, PW1 is a person with no fixed abode or responsibility. He is offering assistance to the railway police without any scruples. His evidence about the identification of the accused cannot be accepted at all. There would not have been sufficient light on the other side of the platform to facilitate identification of the accused. His evidence is not corroborated by evidence in any earlier test identification parade conducted in the course of investigation . He is the sole eye witness examined. Another eye witness Hari, who was allegedly present with PW1, has not been examined by the prosecution. PW1 is only a vendor at the railway station offering his help and assistance to the railway police in their attempt to falsely implicate the appellant. Ext.P1 cannot command any respectability or acceptability. It had reached the court only long later on 6/4/2004, the same having allegedly been registered on 3/4/2004 at 10.30 p.m. Ext.P1 read along with Ext.P20 reveals that information, which is not available in Ext.P1, is available in Ext.P20, PW1 does not at all speak of any attempt to apprehend the accused on the date of the crime at the other platform. PW1 has failed to explain the other injuries, which were found on the person of the deceased. In these circumstances, the evidence of PW1 cannot be accepted meekly by any court. His evidence deserves to be rejected, contends the counsel.

We have considered all these aspects. It is, of course, true that PW1 is not shown to have any stable employment. He admitted that he belongs to Wayanad District. He was not having permanent employment. He had come to Guruvayur. He was staying there doing odd jobs. These circumstances, according to us, are not at all sufficient to arouse any basic doubt, distrust or suspicion against the oral evidence of PW1. The oral evidence of PW1 gets convincing assurance from the contents of Ext.P1. Admittedly, PW1 has no animosity whatsoever against the appellant. He is not having any special relationship with the deceased. We have satisfactory indications to show that within thirty minutes of the crime, Ext.P1 was lodged by him before the police and Ext.P20 F.I.R. was registered on the basis of Ext.P1. The contents of Ext.P1 do go a long way to offer assurance to the court for the version of PW1. Appreciation of evidence of PW1 must definitely start from the bedrock of Ext.P1. We do, of course, note that there has been some delay in the F.I.R. reaching the court. The incident took place in the night of 3/4/2004. 4/4/2004 was Sunday. The F.I.R. reached the court only on 6/4/2004 at 10.30 a.m. The delay is, of course, disturbing. But we must note that the significance of the delay in the F.I.R. reaching the court has to be evaluated carefully. An approach of distrust against an informant''s evidence merely on the ground that there is delay in the F.I.R. is not justified at all. We must alertly note that at that juncture, it was only a case of hurt. The matter became serious when the deceased expired on 7/4/2004. Long prior to that, the F.I.R. had reached the court also on 6/4/2004. Ext.P1, considered intrinsically, does not at all suggest that there was any deliberate attempt to concoct a version or to cover up any inconvenient circumstance. A careful reading of Ext.P1 convincingly suggests that it is not necessary for a prudent mind to attach any sinister significance to the delay in the F.I.R. reaching the court. We must say that we approach the evidence of PW1 in the light of Ext.P1 and there is a ring of truth and acceptability around the evidence of PW1 in the light of the contents of Ext.P1.

A test identification parade was not conducted. The conduct of test identification parade is not a ritual. If the witness had only fleeting glance of the miscreant and such witness proceeds to identify the miscreant for the first time in court, after a long period of time, precedents suggest that an approach with distrust and caution will be justified. But that is not a rigid universal rule at all. All the circumstances will have to be taken into consideration. In the instant case, the evidence of PW1 clearly suggests that there was ample time for PW1 to see the miscreant and observe him. He had initially picked up an unnecessary quarrel with the deceased. It is evident that the miscreant, whoever he may be, was labouring to create a circumstance to assault the deceased. He allegedly asked the deceased whether the train would stop at Ernakulam North or South. The deceased said that he did not know. On this, a quarrel was picked up. Hari, the other witness, was also sitting at the door of the compartment by the side of the deceased. The appellant picked up a quarrel with him and wanted him to move away. At all these times, PW1 was standing behind the deceased and Hari in the train. The miscreant allegedly tried to put his hands into the pocket of the deceased and demanded money. It is then that the deceased pushed him. He then went down in the railway track, took out his knife and stabbed the deceased. We have attempted to re-narrate the sequence only to satisfy ourselves that PW1 must have had ample time to observe and perceive the event that took place and the miscreant. It must have been totally shocking behaviour for PW1, the deceased and the other witness Hari. The features of such a person, who indulged in such wanton misconduct, must have got etched in the mind of the deceased and the witness,PW1. The accused was attempting to get into the railway coach. PW1 stated that sufficient light was there both from inside the compartment and also from outside. It is, of course, true that the accused was trying to get into the train from the farther side of the first plat form, but the second plat form was there on the other side. In between there was only one other track. It will be idle, in these circumstances, to assume that sufficient light would not have been available to facilitate perception and identification of the miscreant by PW1. PW1 stated and he asserted in Ext.P1 that he will be in a position to identify the miscreant. We find no merit in the contention that identification by PW1 must be rejected on the ground that sufficient light may not have been there; there may not have been sufficient time to facilitate identification and that no test identification parade has been conducted.

PW1''s evidence is further assailed on the ground that there is gap between Exts.P1 and P20. In Ext.P20, it is recorded that miscreant was a 30 year old person whereas in the body of Ext.P1, that statement does not appear. PW1 was available when Ext.P1 was recorded and Ext.P20 was registered. If in Ext.P20 some more information than what is available in Ext.P1 is elicited and entered, we are unable to reckon that to be of crucial relevance as to justify an approach with distrust against the evidence of PW1. In Ext.P1, the name and details of the deceased are given. According to PW1, he had come to know the details only later from the newspaper. But in Ext.P1, the name of the deceased is seen given by PW1. The deceased, the records show, was quite conscious and had given a statement to the Doctor, who examined him and who later treated him. In these circumstances, it is evident that before he reached the hospital from the railway station, he must have given the details to people who came near him. Therefore, PW1 must also have come to know of that information. Even assuming that the said piece of information recorded as having been given by PW1 was really obtained by the police not from PW1 but from the deceased or others to whom the deceased may have spoken, that again is not crucial or vital enough to justify or warrant an approach with distrust to the version of PW1.

PW1 was not the sole eye witness. Only he has been examined. This must arouse suspicion, it is contended. We find no crucial significance in this contention. Hari, a friend of PW1, was not available. The proceedings of the court below shows that attempts were made repeatedly to secure the presence of said Hari and it is only thereafter that the prosecution gave up examination of Hari. Hari and PW1 come from the same source/category and, in these circumstances, the inability of the prosecution to examine Hari as a witness does not in any way generate any dissatisfaction in our mind.

The learned Counsel for the appellant contends that PW1 has not been able to explain all the injuries found on the deceased. He explains only one injury, i.e. the fatal injury suffered with the weapon on the deceased. There are other injuries, which are described as injuries 3, 4, 5 and 10 in Ext.P5. They are abrasions. These abrasions are not at all explained by PW1, it is contended. It is submitted that PW1 does not speak of any possibility of the deceased having suffered the injuries other than the fatal injury, i.e. injury No. 7. From this it is contended that the evidence of PW1, which does not explain all injuries, must be rejected or at least approached with suspicion. We are unable to agree. We have been taken through the entire evidence. There is nothing to persuade this Court to come to a clinching conclusion that those other injuries must have been suffered in the course of this incident itself. The possibility of the deceased having suffered injuries earlier on that day in some other manner cannot be ruled out. The learned Public Prosecutor argues that after suffering the fatal injury, those parts of the body may have come into contact with rough hard surfaces while the deceased was removed from the train to the hospital. These injuries are not serious injuries at all. In these circumstances, even if PW1 had not perceived the manner in which the other injuries happened to be there on the person of the deceased, that is not crucial or vital, contends the leaned Public Prosecutor. We find merit in that contention.

In Ext.P4 wound certificate, PW5 has not described the other injuries. We have nothing to indicate whether the other injuries described in Ext.P5 were suffered in the course of the incident. Even if it is assumed that they were suffered by the deceased along with the fatal injury, i.e. injury No. 7, as found by the court below, it is possible that the injuries may have been suffered by the deceased after PW1 rushed out of the compartment to inform the police official. The learned Public Prosecutor''s argument that all the injuries are found above the waist and the possibility of the deceased having fallen side ways after suffering the injuries and those parts of the body come into contact with rough surface of the compartment cannot also be ruled out. At any rate, we do not attach any crucial significance to the absence of specific explanation by PW1 for the other injuries, i.e. injury Nos. 3, 4, 5 and 10 in Ext.P5.

The learned Counsel argues that PW1''s clothes are not blood stained and this must be reckoned as contra indicating his presence at the scene of the crime. There is nothing in evidence which can suggest that there must have been blood stains on the clothes of PW1, if his version were true. Absence of blood stains on the clothes of Pw1 does not also in the facts and circumstances of this case arouse any dissatisfaction in our mind against the oral evidence of PW1.

Even though it is contended vehemently that PW1 must have been a vendor at the railway station, PW1 has stood the cross examination well on this aspect. The mere fact that he was a ticketless traveller on his own admission does not also persuade us to come to a conclusion that he was a vendor at the railway station. This contention is pressed into service only to support the theory that such a vendor in the premises of the railway station may be obliged to support the case of the railway police. In the instant case, there is nothing to indicate that the railway police had any such over anxiety in resolving the crime by making false allegation against any person. In fact, it was only on the efforts of PW14 that led to the resolution of the crime. On broad probabilities, it rebels against logic and reason to assume that immediately after the occurrence, the railway police caught hold of a vendor in the railway station and got Ext.P1 F.I.S. recorded from him in the hope of identifying the accused when he is possibly apprehended later. That theory does not rhyme well with reason and logic.

We do, in these circumstances, come to the conclusion that the court below did not commit any such error warranting appellate interference in having taken the view that PW1''s evidence can be accepted. In the final analysis, the prompt inspiring and contemporaneous Ext.P1 F.I.S. as also the total absence of any interest for PW1 to speak against the appellant or in favour of the deceased do tilt the scales in favour of the conclusion of the court below. We repeat that there is a ring of truth and acceptability around the evidence of PW1. His evidence deserves a fair, natural and careful appreciation, but without any doubt, distrust or suspicion. It will only be reasonable for any prudent mind to look for some other circumstance to draw support and inspiration for the oral evidence of PW1. Though inherently, on broad probabilities and intrinsically, we find no reason to adopt an attitude of distrust against PW1.

The prosecution relied on the evidence of recovery of MO.1 to offer to the court support and assurance for the oral evidence of PW1. The incident took place on 03/04/2004. As stated earlier, F.I.R. reached the court on 6/4/2004 at 10.30 a.m. The deceased succumbed to his injuries on 7/4/2004 at 5.30 a.m. The police were not able to get any further clue of the miscreant. PWs.1, 4 and 9 had claimed that they will be able to identify the miscreant. The only other piece of information was that the accused was wearing a red shirt and white dhothi. No better clue was available with the police.

It is at this juncture that we find that PW14, a Circle Inspector of a police station in Thrissur, arrested the appellant/accused under suspicious circumstances on 8/6/2004 at 11 p.m. Ext.P10 is the F.I.R. registered. He was found to be in possession of a screw driver and a dagger concealed on his person. This coupled with inconsistent answers, which he allegedly gave, allegedly triggered suspicion. The screw driver and the dagger were seized under Ext.P14 seizure mahazar. PW14''s suspicion was aroused. He allegedly interrogated with the appellant/accused closely. It is the case of PW14 that his interrogation was effective and the accused broke down to furnish to him information about his involvement in many crimes. Complicity in this crime was also confessed by the appellant before PW14. Ext.P11 is the alleged information relevant to this case furnished by the appellant to PW14. On the basis of that information, PW14 proceeded to the place where MO.1 was allegedly concealed. It was concealed in the premises of the railway station not far away from the scene of the crime. Under Ext.P3, in the presence of PW4 and PW7, PW14 recovered MO.1. As stated earlier, that knife MO.1, was later found to be blood stained as per Ext.P31 opinion of the Expert. PW14, when he recovered MO.1, did not think that it was blood stained. In Ext.P3, there is no recital that MO.1 was blood stained. Both PWs.4 and 7 attested Ext.P3 and have given evidence in support of the said recovery. The evidence of PWs.5, 6 and 10 suggests that the fatal injury found on the deceased could have been caused with a weapon like MO.1. In these circumstances, the prosecution contended that the recovery of MO.1 under Ext.P3 on the basis of Ext.P11 information given by the appellant to PW14 must be reckoned as a formidable circumstance against the appellant herein. The court below accepted the same.

The learned Counsel for the appellant contends that this theory of recovery is totally unbelievable and unacceptable. Arrest of the appellant by PW14 on the night of 8/6/2004 is not disputed. It is the case of the appellant that he was brutally manhandled by PW14. After such arrest, the appellant wanted to complain to the Magistrate and apprehending that such a complaint may be made by him, false allegations of involvement of the appellant in this crime was raised by PW14 against him. This in short is the plea.

The learned Public prosecutor points out that this plea has no legs to stand on when we consider Ext.P13 remand report. In Ext.P13 remand report, the circumstances under which the appellant happened to be arrested under Ext.P10 F.I.R. and the outcome of the interrogation are narrated in detail. It is thereafter that the appellant was produced before the learned Magistrate on 9/6/2004. The version of the appellant recorded by the learned Magistrate, which is available in Ext.P13 remand report, is of great relevance. The learned Magistrate has clearly noted in Ext.P13 that the appellant "has no complaints of ill-treatment against the police. But he raised an apprehension that he will be manhandled by the jail authorities to wreak vengeance and due to previous animosity". This knocks the bottom out of the theory that PW14 had invented a false version against the appellant on the apprehension that he may complain against PW14 before the Magistrate. It is contended that PW14 was not investigating this case and his version about the recovery cannot be accepted. To us, it appears that that circumstance can operate in favour of the prosecution. PW14 was not under any compulsion to resolve the mystery in this crime. He was not investigating into this crime. He has absolutely no animosity - there is not even a suggestion of such animosity prior to the arrest of the appellant. The theory of apprehension of complaint by the appellant about manhandling/torture, we have already seen, is without any basis. In these circumstances, we are certainly of the opinion that the oral evidence of PW14 deserves to be considered naturally and reasonably and without any unjustified distrust.

It is true that courts come across many instances of impropriety on the part of the police. But that cannot certainly justify an attitude of blanket distrust against the police. In our system, the police also is an unavoidable part of the criminal adjudicatory system. A rigid attitude of distrust against the police may be counter-productive and would frustrate the very common object of the system of criminal adjudicatory process. Organs of a system cannot work in cross purposes. A daily diet of distrust against the police will not be justified. This is not to say that we are not aware or not cognisant of the possible mischief which some unprincipled police officials are capable of. We only intend to say that an attitude which is fair, reasonable and proper must be adopted. When the evidence of a police officer is considered for its acceptability, if there are circumstances, certainly a cautious and suspicious approach may be justified. But in the facts and circumstances of this case, where not even a semblance of a valid allegation is even raised against PW14, we are of the opinion that such an attitude of distrust may not be justified. Appreciation of evidence of a police officer cannot start on the foundation that he is not worthy of credence. The attitude may have to change. Circumstances may be looked at and if there are reasons, certainly an attitude of distrust and suspicion can be valid. We only say that such reasons are not available in the case when we start our approach in the evidence of PW14.

PW14 has shown unjustified anxiety and enthusiasm, it is alleged. He received information about the concealment of MO.1. He did not pass on the information immediately to the investigating officer in this crime. He proceeded to effect recovery. He proceeded to question relevant witnesses like PW1. He even proceeded to question the Doctor. It is submitted that these circumstances must generate doubt and suspicion against the evidence of PW14. It could have generated doubts, if any other reason inherently is available to doubt the version and bona fides of PW14. It was a case of suspicious arrest. The appellant/accused had given certain information. PW14 must definitely have wanted to verify relevant details to ascertain whether he should proceed on such information furnished by the accused. For this purpose, if PW14 made essential and vital cross checking of the confession made to him under Ext.P11, we are unable to hold that as a circumstance against PW14 to justify an approach with distrust against the evidence of PW14.

The fact that even PW14 did not perceive the knife to be blood stained when he recovered it under Ext.P3 on 9/6/2004 is relied on. But the Expert, after chemical examination, found the same to be blood stained. This, according to us, is not sufficient to generate any suspicion against the evidence of PW14. If it were his intention to foist an allegation that the knife was blood stained, he would, in all probabilities, have done the same, while taking MO.1 into his possession under Ext.P3. The fact that PW14 did not perceive the presence of blood when he seized MO.1 under Ext.P3 and the same was later found to be blood stained on chemical examination, can according to us, only strengthen the evidence of PW14 and cannot be reckoned as a circumstance to militate against the acceptability of such evidence.

The evidence reveals that PW14 is an alert police official. He arrested the appellant-accused on suspicion on 8/6/2004. He interrogated him. He proceeded with interrogation and collected clues from the accused. The accused gave indication about his involvement in the instant crime. PW14 proceeded to verify and cross check the facts. When he was satisfied that the appellant/accused was involved in this crime and MO.1 was used in the commission of the crime, he produced the accused before the Magistrate having jurisdiction under Ext.P13 remand report and thereafter informed the investigating officer in this crime about the information/clues collected by him. We do not find any reason, in these circumstances, to discard the evidence of PW14 about the arrest, interrogation and recovery of MO.1 under Ext.P3 on the basis of Ext.P11.

The learned Counsel for the appellant argues that there has been a long gap of time between the alleged recovery of MO.1 and the production of the same before the Magistrate. Recovery was effected on 9/6/2004. Ext.P16 shows that the knife was produced before the Magistrate only on 21/6/2004. We do not attach much significance to this gap of time as the recovery of MO.1, on the basis of the confession statement of the appellant, is revealed to the Magistrate clearly under Ext.P13 remand report which had reached the Magistrate on 9/6/2004 itself. That the knife has been recovered was reported to the Magistrate on 9/6/2004. In these circumstances, the delay in production of the knife itself before the Magistrate till 21/6/2004 under Ext.P16 is of no consequence, we hold. PW14 had explained that the knife was not produced immediately after the recovery on 9/6/2004 because he had to show the weapon to several witnesses for the purpose of cross checking and confirming the facts. That appears to be a very probable and acceptable explanation.

When it was produced ultimately on 21/6/2004, the learned Magistrate found that a property involved in this crime was to be produced not before him, but before another Magistrate. Accordingly, MO.1 was returned to PW14 under Ext.P16. The fact that the same was produced later before the Magistrate only on 29/6/2004, does not also persuade us to approach the evidence of recovery with any amount of doubt or distrust.

The learned Counsel for the appellant submits that in the sequence of events spoken by PWs.1, 4 and 9 of what happened on the date of the incident, it is extremely improbable that the appellant would have concealed the weapon at the place from where it was recovered under Ext.P3. We shall consider this while discussing the acceptability of the evidence of PWs.4 and 9. Suffice it to say that inherently we find no reason to discard the evidence of PW14 about the recovery of MO.1 under Ext.P3 in the presence of PW4 and PW7.

We now come to the evidence of PWs.4 and 9. PW.4 is a railway porter working in the railway station. PW9 is a police constable attached to the police station where Ext.P20 crime was registered. He was on mobile duty in the train in question on that day. The train had stopped at Thrissur railway station and PW9 along with other police constables was performing the duty of checking and overseeing all the compartments. He was walking along platform No. 1 when he got information of the incident. He made arrangements to remove the victim/deceased to the hospital. He came to know that the miscreant had gone along the second railway line towards platform No. 2. It appears that the information that the miscreant was wearing a red shirt and white dhothi had been received from PW4. Obviously, his search was on that clue. We may hasten to observe that it is not a case where PW9 went after the miscreant from the scene of the crime immediately. There was evidently a gap of time and by then the miscreant must have gone away. It is very important while ascertaining the relevance of the evidence of PWs.4 and 9 that it is not a case where PW9 or other police constable chased the miscreant from the scene of the crime. No one has such a case at all. After the incident and on coming to know of the incident, PW.9 and other constables went in search of the accused. It was then that they allegedly spotted the red shirted and white dhothied person on the road on the western side of platforms 2 and 3. It is there that PW9 tried to apprehend the alleged miscreant. It is then that the alleged miscreant ran into the railway station and ran towards the north. It is there that PW9 and some other constables went after the miscreant shouting "thief, thief, catch him". It is at that juncture that PW4, who had also come to know of the incident while he was on platform No. 1 and was walking across the railway track to platform No. 2 heard the cries to stop miscreant. It is then that the miscreant pushed PW4 and he fell on the track. The miscreant allegedly ran towards north. He fell. He lost his dhothi there. He abandoned the dhothi and ran away. That dhothi is MO.2. That was taken by PW9. It was kept by him in the police station. When the investigating officer, PW18 came on 4/4/2004, he had handed over MO.2 dhothi to PW18 and the same was seized by PW18 under Ext.P22. The seizure mahazar, Ext.P22 had reached the court on 12/4/2004.

The evidence of PWs.4 and 9 about their attempt to chase the miscreant must start evidently from Ext.P22. Ext.P22 shows that on 4/4/2004, MO.2 was available in the police station for PW18 to seize the same under Ext.P22. We are able to draw a lot of assurance for the version of PWs.4 and 9 about the alleged chasing of the miscreant from Ext.P22 and the production of MO.2. The miscreant had not been traced on 4/4/2004. MO.2 is not useful for any other purpose. In such circumstances, the version that PWs.4 and 9 had chased the miscreant and that the miscreant had escaped abandoning MO.2, does appear to us, to be convincingly reasonable. We cannot, even pressing into service the wildest imagination, find any explanation for such false creation of evidence about MO.2 seized under Ext.P22 on 4/4/2004 or even on 10/4/2004 when Ext.P22 reached the court. The fact that Ext.P22 had reached the learned Magistrate on 12/4/2004 long before the involvement of the appellant as the miscreant was revealed to the police, does go a long way to assure this Court about the acceptability of the oral evidence of PWs.4 and 9 that they have chased the miscreant and miscreant could not be apprehended. It is in that background that we have to appreciate the evidence of PWs.4 and 9. PW18 is the Superior officer of PW9 and PW17. PW18 has his office at Shoranur and when he came to the police station on the next day after the crime, MO.2 was seized under Ext.P22. The fact that MO.2 was not taken into custody by the police on 3/4/2004 itself does not, in these circumstances, generate any dissatisfaction in our mind. Looking at broad probabilities, it appears to us to be reasonable to assume that any miscreant in the given circumstances, who must have had the blood stained dagger in his possession, must have attempted to dispose of the same as quickly as possible. Red shirt was the primary input available to identify the miscreant. Blood stained dagger, if it were available with him, would have clinchingly implicated him. So any miscreant in the given circumstances must have made an attempt to dispose of the weapon of the crime as quickly as possible. In these circumstances, we are of the opinion that the theory of the miscreant disposing of MO.1 by concealment before he was spotted by the police official on the road on the western side is clinchingly reasonable. The learned Counsel for the appellant argues that if the appellant had fallen down and had lost his dhothi, the knife should also have been available at that spot. Thereafter he could not have concealed MO.1 at the spot from where it was recovered. Hence, the theory of the prosecution is unacceptable, he contends. We do not find anything unacceptable in this theory but we feel that in all probability, the miscreant, whoever he be, must have disposed of the weapon even earlier - prior to his being traced on the road on the western side by PW9. We have the evidence of PW1 that the miscreant had gone towards the northern side to the second platform. MO.1 weapon is seen concealed on the northern most extremity of the railway station. The possibility that the red shirted miscreant, before he went to the road on the western side where he was spotted by PW9, may have concealed the weapon is found to be really reasonable and probable. In these circumstances, we find no reason to approach the testimony of PWs.4 and 9 with any amount of distrust. The only question is whether they had sufficient time to see the miscreant and identify him. Both PWs.4 and 9 did not see the miscreant proceeding from the scene of the crime immediately after the crime. They evidently saw him at a later point of time and not, while he was being chased from the scene of the crime. At the scene immediately after the crime, there admittedly was no chasing. PW1 had gone to inform the police. According to PW9, he spotted red shirted man and wanted to apprehend him. He ran away to the railway station and from there towards the north. Opportunity for PW9 to perceive the features and identify the miscreant was thus very much there. One cannot ignore the fact that it was late in the night at that time, PW4 had heard shouts of PW9 and others, "thief, thief and catch him". It was then that he went towards the miscreant and tried to stop him. He also did have opportunity to see him. But such opportunity was rather limited and little.

Counsel argues that, in these circumstances, their identification in court must have been tested, in an earlier test identification parade held by the prosecution. We find some force in this contention. A test identification parade would certainly have given great assurance for the court to accept and act on their testimony. But we must note that PW4, who attested Ext.P3 recovery mahazar and PW9 a constable in the railway police station did have and must have had opportunity to see the appellant on 9/6/2004 when PW14 brought him to the railway station. A subsequent test identification parade could not have enhanced the value of identification in court. In the absence of such evidence of a test identification parade, we would not like to found to any finding against the appellant on the evidence of PWs.4 and 9 alone. But the prosecution does not want the court to found any finding against the appellant on the evidence of PWs.4 and 9. They are requesting the court to act on the evidence of PWs.4 and 9 to draw inspiration for the oral evidence of PW1.

We have considered all the relevant aspects. We find that the evidence of PW1 in its own strength is acceptable and does not warrant rejection at all. His version, according to us, is convincingly supported and corroborated by the evidence of recovery of MO.1 by PW14 under Ext.P3 on the basis of Ext.P11 confession statement in the presence of PW4 and PW7. That gives us the final assurance, that we are looking for,for the evidence of identification by PW1. The evidence of PWs.4 and 9 are inherently uninspiring. MO.2 seized under Ext.P22 gives us assurance that the miscreant was chased and had run away abandoning his dhothi, MO.2. That gives us assurance for the version of PWs. 4 and 9 that they must have had opportunity to see the miscreant. We repeat that we do not intend to found any finding against the appellant on the evidence of PWs.4 and 9. But their evidence is sufficient to offer us the final assurance which we are looking for, for the oral evidence of PW1, which is already supported by the evidence of recovery of MO.1.

We do, in these circumstances, find the conclusion of the court below to be absolutely justified. We concur with the said conclusion. The challenge raised against the oral evidence of PW1 duly supported by the evidence of recovery of MO.1 and the oral evidence of PWs.4 and 9 that it was the appellant who inflicted the injury on the deceased is rejected and that finding is upheld by us.

One last question remains. The learned Counsel for the appellant contended that in any view of the matter, conviction u/s 302 I.P.C. is not justified. That the deceased suffered the fatal injury at the hands of the appellant is proved satisfactorily as already found. That the deceased died of such injury is also well established. The injury suffered, it is evident, was sufficient in the ordinary course of nature to cause death. Offence u/s 299 I.P.C. is clearly established. The offence gets exalted to the offence of murder under Clause ''Thirdly'' of Section 300 I.P.C. The only question that survives is whether the offence can slide back to Section 299 I.P.C. by the play of any of the Exceptions u/s 300. Counsel argues that Exception 4 must apply. We are unable to agree that Exception 4 can apply in the circumstances of the case. It was clearly a case where the offender had taken undue advantage and had acted in a most cruel and unusual manner. He was inching for a fight. He wanted the deceased to be robbed of the amounts, which he had. By no stretch of imagination, can Exception 4 be said to apply in the context. There was no sudden quarrel. There was no sudden fight. It was an engineered quarrel which led to the infliction of the injury. Exception IV, we are satisfied, cannot have any application.

The oral evidence of PW1 clearly establishes the offences punishable under Sections 302, 393 and 394 I.P.C. We are satisfied that the sentence imposed on these counts are absolutely justified and consistent with the gravity of the offence. No leniency is warranted. The challenge against the verdict of guilty, conviction and sentence imposed, in these circumstances, fail.

In the result,

a) this appeal is dismissed.

b) The impugned verdict of guilty, conviction and sentence imposed by the court below are all upheld.