Rangaswamy vs State Of Kerala

K. Vinod Chandran, J.

The murder alleged, has ramifications from across the border and the allegation is that the deceased is an eye-witness to a murder in Tamil Nadu and the instant crime was to silence him. The charge was that A1 to A10 murdered the Municipal Councilor, Tiruchengode on the night of 07.12.2004 and in pursuance of the common object to murder and so silence him, the deceased herein was abducted in a Tata Sumo, brought to Chottanikkara, then, on his trying to escape, shifted to Pollachi, on which day itself he was brought back to Chalakkudy chopped on the neck, strangulated and dumped into the Chalakkudy river with his hands and legs tied.

Accused No.10 absconded and his case was split up. A1 to A9 stood trial, in which, prosecution examined eighteen witnesses and marked documents, many in series, from Exts.P1 to P47. The prosecution also produced seven material objects [MOs]. The defence examined one witness and marked four exhibits. Accused Nos.1 to 9 were convicted under S.302 read with S.49 and Ss.364, 201, 143, 147 & 148. For the offence under S.302 read with S.149 life imprisonment was imposed with a fine of Rs.25,000/- each and suitable sentences, with fine and default sentences were imposed under the other provisions of the IPC also. The appellants are the accused numbers 1 to 9.

Learned Counsel Sri.Vivek Venugopal, appearing for the accused, pointed out that the entire case is built on circumstantial evidence, the foundation of which, is the testimonies of PWs.3,5 & 8 as also Ext.P3 document. The omissions in the testimony of the first two witnesses and the complete denial of the last of them, puts to peril the prosecution case, which is further aggravated by the so-called dying declaration Ext.P3(a) not being proved unequivocally. The testimonies of PWs.3 & 5, the father and relative of the deceased, suffer from serious inconsistencies. The accused alleged that the entire case set up against them, was by reason only of their alleged involvement in the case registered under S.302 at Tiruchengode in Tamilnadu.

There is inordinate delay in the submission of the FIR and Inquest Report to the Court, which makes Ext.P3 document, allegedly seized from the pocket of the deceased, a very suspicious seizure. This is especially so, since after detection of the body, which led to the registration of the FIR, the Investigating Officer [I.O] travelled to Tiruchengode, identified the deceased from the photographs taken, conversed with the relatives and also the Police in that State and returned with the relatives. It is argued that Ext.P3 is clearly planted and there was no investigation carried out regarding the number in which the call was made, the receipt of which is Ext.P3. As against MOs.1 to 3 ropes found on the body, no attempt was made to ascertain the source or compare it with the ligature marks on the neck. Two confession statements are marked, both of which do not come under S.27 of the Indian Evidence Act. Neither can S.8 be resorted to, since the prior conduct spoken of has not been established by independent evidence. Though a vehicle is said to have been recovered, there is nothing produced to show its registration particulars, nor is it produced before Court. There is also no clarity regarding the registration number of the vehicle in which the alleged abduction took place, as spoken of by the witnesses or even in the suggestions made by the prosecution.

It is argued that there can be no last seen together theory propounded, since PW5, even if believed, has seen the deceased with A1 on 07.12.2004, when the actual murder is said to be on the tenth. Pertinent also is the fact that the abducted victim having been taken to Pollachi on 10.12.2004, was sought to be established by two witnesses cited by the prosecution, CWs.15 & 16, who were not proffered before Court. The learned Counsel relies on the following decisions: Nizam v. State of Rajasthan [2016 (1) SCC 550], Digamber Vaishnav v. State [2019  (4)  SCC  522]  and  Sanjay  Oreon  v.  State  of  Kerala [2021 (5) KHC 1].

Ext.P3, on its back side, has a handwritten note in Tamil, which is said to be the dying declaration of the deceased. There was no attempt to compare the handwriting nor is there an authentic translation made. The Superior Officer of the deceased spoke of handwriting samples given to the Police, the seizure of which was denied by the I.O. On the issue of comparison of handwriting learned Counsel relied on in State of Maharashtra v. Hemant Kawadu Chaurial [2015 (17) SCC 598] and Jagdishraj Khatta v. State of Himachal Pradesh [2019 (9) SCC 248]. The so-called dying declaration was read differently by the prosecution witnesses and proved to be not decipherable by the expert examined as DW1. On the relevance of dying declaration, the learned Counsel placed before us Uka Ram v. State of Rajasthan [2001 (5) SCC 254], Prasad v. State of Kerala [2021 KHC 462] and Gulab Singh v. State of Delhi [1995 KHC 3033]. The sole witness, who allegedly saw the deceased in the company of the accused was not acquainted with the accused and there was no attempt to conduct a test identification parade [TIP]. On the necessity for a TIP, the learned Counsel relied on Bhaskarrao & Others v. State of Maharashtra [2018 (6) SCC 591], Mahabir v. State of Delhi [2008 (16) SCC 481] and Kanakarajan @ Kanakan v. State of Kerala [2017 (13) SCC 597]. PWs.3 & 5 are alleged to be interested witnesses, whose evidence has to be scrutinized carefully as held in Suresh & Another v. State of Haryana [2018 (18) SCC 654]. There were also material improvements made by the witnesses in the box which makes them unreliable as held in Anil Shamrao v. State of Maharashtra [2013 (12) SCC 441] and Manu G.Rajan v. State of Kerala [2021 (5) KHC 767].

The learned Government Pleader Sri.Alex M. Thombra, asserts that the evidence of PWs.3, 5 & 8 puts forth a clear circumstantial case, requiring an explanation from the accused, as to how the deceased met with his death, since they were seen together last; which is not forthcoming. PW8 though did not support the prosecution in chief-examination, when confronted with the prior statements accepted them in toto. The learned Sessions Judge correctly accepted the same and the evidence stands fully corroborated by the dying declaration. There is absolutely no reason to falsely frame the accused and the dying declaration garners support from the testimony of PW3, about his son having spoken of A1's company with trepidation and the remote possibility of his coming back. As far as the TIP is concerned, the I.O has specifically stated that the media attention garnered in the case, resulted in the photos of the accused being published widely in the media, rendering a TIP futile. Merely because the witnesses are relatives, there can be no interest ferreted out and PWs.3, 5 & 8 are the most natural witnesses. The omissions are immaterial and there is no contradiction marked by the defence. The appeals ought to be dismissed, the conviction upheld and the sentences sustained.

The trial Court found the death to be a homicide by reason of ligature strangulation. The Doctor opined injury No 1 to be caused by a sharpened weapon and external appearance shows asphyxia. The fatal injuries were Injury No.13 & 14, pressure abrasions, caused by strangulation and corresponding internal injuries. The death was opined to have occurred in the night of 10.12.2004 between 9 p.m on that day and 9 am on the next day. We agree with the trial Court that the absence of chemical examination of MOs.1 to 3 or omission to compare it with the ligature marks does not raise any adverse inference, especially since the ropes were found on the body.

The trial Court detailed each of the circumstances projected by the prosecution and established in evidence, to enter a conviction in the case. The first circumstance was the evidence of PW5, Venkitesh a cousin of the deceased who spoke of having seen the deceased in a disturbed state on the previous day. He spoke of a Tata Sumo having come, with the registration number masked, in which the deceased was taken by two persons who alighted. While opening the door, the cabin lights revealed A1 and A2 inside the car. Despite omissions brought out in cross examination, the trial Court chose to believe the witness.

The next circumstance, is the disclosure made by A8 and A9 based on which the I.O reached the lodge at Chottanikkara, to seize Ext.P5 register of the lodge in which the accused stayed with the deceased. The trial court chose to rely on PW8 and it was held that though PW8 initially, in chief-examination, displayed reluctance to depose truthfully; there is sufficient corroboration available from the statements in cross-examination. The trial Court also found Ext.P6(a) disclosure statement, though not admissible under Section 27, to be relevant under Section 8 of the Evidence Act. It was held that the prosecution case of the deceased being taken from Sankagiri on 7.12.2004, would stand fortified by the evidence of PW17, the I.O of the murder in T.N and PW15, the attesting witness to Ext.P10 seizure mahazar of the Tata Sumo. The accused Nos.1 to 6, were found in the vehicle on its detention and were apprehended by the Tamil Nadu police in the crime relating to the murder of the Municipal Councilor. PW5's testimony put forth a solid case of last seen together theory, held the trial Court and the non explanation of the accused is a strong link in the chain of circumstances.

The message in the hand writing of the deceased, on the back of Ext.P3, as translated by CW20; noted in Ext.P2 inquest report, further inculpates A1, whose name is specifically referred to therein, as the one responsible for the death of the deceased. The evidence of DW1 speaks of the essentials in the message inculpating A1, which is further corroborated by the testimony of PW3, the father, to whom a like message was relayed relevant under Section 32 of the Evidence Act. To rubbish the omission, the Sessions Judge relied on the evidence of PW6, the Assistant Engineer who spoke of the deceased having called over telephone, to avail leave; to find that the deceased had access to a telephone. The proof of handwriting was said to be sufficient, as spoken of by the witnesses who were closely related to the deceased.

The recovery of a 'koduval' by Ext.P41, in Crime 1019 of 2004 by PW17, was also held to be a relevant aspect. The trial Court also laboured upon the judgment of the Sessions Court and the Madras High Court which respectively convicted and then acquitted the accused in the case with respect to the murder of a Municipal Councilor, in which case A1 to 9 in the present case were also arraigned. The trial Court opined that the evidence led in that case, regarding the deceased being in the company of the Municipal Councilor, before his murder, is proved in the present case; thus unequivocally establishing motive .

PW1 is the Sub Inspector of Police who suo motu registered Ext.P1, FIR, on receiving information of a floating body in the Chalakudy river. Ext.P2 is the inquest report by which MO1 to 3 ropes found on the body of the deceased, MO4, pants, MO6, handkerchief and MO7, bunch of keys with a remote control found inside the pants pocket of the deceased along with MO5 thread tied on his arm, were seized. Ext.P3 telephone bill found in a sodden manner, in the pant pocket, of the accused also was seized straightened up and dried from which the possible location of the person when he was alive, was detected. The police immediately made inquiries at Sankagiri, the location of the telephone booth, seen from Ext.P3 and found that there was a man missing case registered at Pallipalaym Police Station at Tamil Nadu. The police party reached the Pallipalayam P.S and the photographs of the dead body were shown to PW3, the father and PW4, the brother of the deceased, who identified it as that of Shanmugham, the son and sibling of the said witnesses. They were brought to Kerala and the body was identified. PW2 helped to recover the body and he identified MO1 to 7 as did PW's 3, 4 & 5.

PW3 is the father, who spoke of his son having been employed in the Junior Engineer's office at Tamil Nadu Electricity Board (TNEB), having obtained the job under the dying-in-harness scheme, on the death of his daughter-in-law. PW3 deposed that usually his son goes for work in a bike and on 7.12.2004, he went in an ambassador car. His son did not return in the night and on the next day morning he received a call and his son told him that 'Saravanan abducted him in a Tata Sumo, they are proceeding to Bangalore and he may return within two days or not at all' (sic). He identified A1, Saravanan who was a person of the locality in which he was residing, who was the member of a political party, in rivalry with another party in which the murdered Municipal Councilor was a member. PW3 heard of the murder of the Councilor and went to see him. Later he gave a complaint regarding the missing of his son to the Pallipalaym P.S. He was detained in the station for four days and PW4, his son and PW5, his relative came to see him at the station. He was released on 12.12.2004 and later he was summoned again in the evening when the police from Kerala came to the station. He was shown the photos of a dead body, marked as ExtP4(a) to (c) which he identified as that of his son. He also spoke of having seen the body from the mortuary at Thrissur Medical College on the 13th. He identified the ropes found from the body of his son, MO1 to MO3. Pertinently the specific conversation with his son or the words spoken by the son regarding the abduction, with expression of uncertainty regarding his return, were marked as an omission from the prior statement, proved through PW14, the I.O who initially conducted the investigation. PW3 also admitted that the telephonic message of his son, was spoken for the first time in court and so was the narration of his detention for four days in the police station.

PW4, is the brother of the deceased who vouched that there was no enmity between A1 and his brother. Though PW4 deposed that he knew about the conversation, his brother had with his father over the telephone, the details were not stated. He read the message written in Ext.P3 and interpreted the alphabets, M.C, to be referring to 'Municipal Councilor'. He identified MO6, handkerchief as that of his son, brought home from the hostel having a code number inscribed on it; of his son, as maintained at the hostel. Quite possibly the handkerchief was taken by the uncle, the deceased, from the house of PW4. PW4 also confirmed the handwriting on Ext.P3(a) as that of his brother. PW4 identified A1, 3, 5 and 6 and sweepingly mentioned that he is acquainted with A1 to 9. According to PW3, his brother had parked the ambassador car at the house of Ponnuswamy, took the keys with him and PW5 was along with his brother. Without any substantiation, PW4 made a statement that there was rivalry between A1 and the Municipal Councilor which might have led to the murder and the deceased had the habit of meeting the Municipal Councilor, for some time in the morning and night of every day. He apprehended that probably the deceased was an eye witness to the murder of the Municipal Councilor, which led to the abduction, as spoken of by PW5. PW4 identified MO7 bunch of keys as that, belonging to the ambassador car but the same was brought out as an omission in the prior statement.

PW5 is the cousin of the deceased who spoke of the deceased having come to his house at Sankagiri on 7.1.20004 at around 8'O clock in an ambassador car, which belonged to the Municipal Councilor, having registration No. TCZ 3786. The deceased told PW5 that in the night a Tata Sumo will come and pick him up and specifically instructed him to note the number. Later, the deceased went to make a call. The deceased was wearing an ash colour pants which was identified as MO4. As apprehended by the deceased, by around 8.45 - 9 pm a Tata Sumo car came and two persons alighted to take the deceased; but the registration number was masked. The deceased was taken in the said car and it was specifically deposed that when the door of the car opened, the cabin-lights came on, in which PW5 saw both A1 and 2 sitting in the car and that there were altogether 8 to 9 persons in the car. He identified A1 from the dock and the others in the car were merely referred to as having been seen from the dock at the Sessions Court, in the trial of the murder of the Municipal Councilor. According to PW5, contrary to the testimony of PW3, PW5 accompanied PW3 to the Pallipalayam P.S to make the man-missing complaint and he too was detained at the station from the 8th to the morning of 12th. The confrontation of the photographs of the dead body, the identification made at the mortuary and recognition of the personal possession of the deceased were deposed to. In cross examination his deposition regarding the number plate of the Tata sumo having been masked, himself having seen 8 to 9 persons inside the Tata Sumo and having identified A1 from amongst them were marked as omissions in the prior statements. He admitted that he had not spoken about having sighted A2 inside the car.

PW6 was working as Assistant Engineer in the TNEB office under whom the deceased was employed. He too read the message on the back side of P3, with the essentials coming out, but with slight changes in the exact narration. He identified the handwriting of the deceased who was a Bill Collector working under him and spoke of the deceased having called him in the morning of eighth to seek leave. PW7 is the Accountant who spoke of his close acquaintance with the deceased and he having seen the deceased coming on the seventh in a white ambassador car. The car was also stated to be owned by the cousin of the deceased, the Muncipal Councilor. On 8th the deceased was on leave, as informed by PW6, and the witness identified A9 as one of the persons who accompanied the police when they took a statement from him.

PW8 is the receptionist of a lodge in Chottanikara. He identified P5 register to be that of the lodge and P5(a) entry regarding seven persons having taken a room on the morning on 08.12.2004 and vacated it on the morning of 10.12.2004. The relevant page was marked as Ext.P5(a)and the entry as Ext.P5(b). The witness affirmed that he had handed over the register as per Ext.P6 mahazar and spoke of the party of seven having come in a Sumo vehicle, the registration number of which he did not remember. He failed to identify any of the accused and said that he does not remember any of the persons standing in the dock. A leading question was put, pointing out A1 & A2 in the dock, as the man and woman who accompanied the party, to which also he said he does not remember. The witness was declared hostile and he was cross-examined by the prosecution.

In cross-examination, the Prosecutor put to him the various statements made by PW8 in his prior statement under Sec.161. Many of such statements were admitted by him and many others stated to be given in a slightly different manner. The manner in which the cross-examination is recorded indicates the statements in the prior statement having been put to him, which were recorded as his statement in court. The number of the Sumo Car was also put to him in a leading question, with the alphabet stated wrongly, which the witness affirmed. The information, which a witness declined to state in chief-examination or stated to be not occurring to him from memory, elicited from a witness in cross-examination with specific reference to the S.161 statement, after declaring the witness hostile, cannot be relied on to convict the accused. The learned Sessions Judge has placed heavy reliance on the admissions of PW8; prior statements made to the police, in cross-examination. It was found that PW8 testified on the deceased being in the company of the accused in the dock and an attempt to escape having been foiled by the accused who brought the captive back, with hands held tight, soon after which the party vacated the room.

The photograph of the body of the deceased was shown to PW8 but the same was not identified. Then a question was put to him whether these photos were shown to him when the Police came and whether he identified the same as that of the person who stayed in the lodge; which was affirmed by the witness. Again he prevaricated as to the number of persons in the party who registered themselves in the lodge, as ten in number. The identification also was that all the nine persons were in the party of ten; which has to be eschewed completely since he has no acquaintance with them. The substantive evidence before the dock of PW8 in cross examination was that he does not remember the persons who came to the lodge and stayed there for two days. The witness is totally untruthful and no reliance can be placed on him.

PW9 translated the statement of CW7 and 15 to Malayalam and PW10 translated the documents relating to the crimes within the State of Tamil Nadu which was alleged as a motive leading to the instant crime. PW11 accompanied PW1 and guarded the scene of crime, witnessed seizure of MO1 to 7 and released the body to the relatives from the Medical College, Thiruvananthapuram. PW12 is a witness to Ext.P14 scene mahazar and PW13 is the Doctor who conducted postmortem examination as revealed from Ext.P15 postmortem certificate. PW14 was the initial I.O, PW15 the Village officer who witnessed the seizure of Tata Sumo in Tamil Nadu, PW16 the Village Officer, Chalakudy who prepared the scene plan and PW17, the Dy.S.P. Thirichenkode who investigated the murder of the Municipal Councilor and recovered the Tata Sumo and the 'koduval' (chopper) and arrested A1 to 6. PW18 is the I.O who conducted the investigation and filed final report.

As we found, the death was definitely a homicide, having been caused by reason of asphyxia, the result of ligature strangulation. The story projected by the prosecution has to be established from the commencement of the abduction to the eventual detection of the body from the river. The identification made from the body kept in the Mortuary by the close relatives, the father and brother, as spoken of before Court can be believed. There is no ocular evidence and the case set up is purely on circumstantial evidence. The motive, the trial court found to have been established by the evidence let in, is the factum of the deceased having accompanied the murdered Municipal Councilor in the Ambassador car; just prior to the murder of the latter. We cannot but say that the said finding is just a figment of imagination and the trial Court was unduly influenced by the evidence led, before the Sessions Court, Namakkal. The close relationship between the deceased and the Councilor was spoken of by PW7 a senior colleague of the deceased and they were all said to be relatives, by PW3. The owner of the Ambassador car has not been proved and despite the specific registration number having been stated by PW5, there was no attempt to inquire and at least produce the registration details of the car. While PW3, father of the deceased says that usually his son goes to work in a bike and on that day, the deceased went in a white Ambassador car; he does not speak of from where, his son obtained the car. There is also no attempt made to seize the car or verify whether the bunch of keys found in the pocket of the deceased, MO7, is of, that car. That there was a murder in Tamil Nadu of a Municipal Councilor in which A1 to 9 were arrayed as witness has been fairly established; but they stand acquitted. There is nothing to bring forth the involvement of the deceased in the murder, as a perpetrator or as a witness. There is no motive established but that only cautions the Court in carefully scrutinizing the evidence and the prosecution case cannot be thrown out in its entirety; as held in Nizam (supra).

PW3 the father does not speak of any involvement of his son with the murder of the Municipal Councilor. PW3, spoke of the telephonic message conveyed to him by his son on the morning of the eighth; which could have been a valid evidence of abduction, by Saravanan, A1. However, the said telephone conversation was marked as an omission in the prior statement, a very relevant fact; which even according to the witness, was stated for the first time before Court. There is also no man missing complaint registered before the Pallipalayam Police Station, as stated by PWs.3 & 5. The complaint according to PW3 was orally made, but even the details of the FIR are not available in the records as affirmed by PW14, I.O. It is very surprising, that the trial Court chose to rely on the telephonic message spoken of by PW3, despite it being marked an omission, which stood proved through the I.O. Similarly surprising, is the reliance placed on the omission marked from the statement of PW5, in chief- examination. PW5's evidence, but for the omission, identifies A1 from inside the Tata Sumo, in which the deceased was allegedly abducted on the night of the seventh. PW5's statements that A1 was seen inside the Tata Sumo, in the cabin-light of the vehicle, when the door was opened; was marked as an omission, proved by the I.O, PW14.

The last seen theory as held in Nizam & Digamber Vaishnav (both supra) cannot form the sole basis of conviction. In criminal trials the fundamental principle is that the burden of proof squarely rests on the prosecution, which burden never shifts. A valid last seen together theory, requires an explanation from the accused as to what happened to the victim, who was last seen in his/their company. Absence of or a false explanation, can only form a link in the chain of circumstances and that cannot persuade the Court to conclude on the hypothesis of guilt as the only possible one. In this case not only was the last seen theory not proved, the prosecution version that the deceased was taken to Pollachi from Chottanikara was not even attempted to be proved by examining the witness cited, CW 15 & CW 16. PW8 another witness, on whom strong reliance has been placed by the trial Court, has already been found by us to be not trustworthy or credible. No TIP was carried out, but however the I.O has an explanation that there was too much media coverage and the TIP would have been a futile exercise, which we accept. But the identification of the accused is totally absent even from the deposition of PW8. The photograph shown to PW8, as that of the body of the deceased, was not marked through the photographer nor were the negatives produced in Court. The last seen theory falls by the wayside also due to the omission in the prior statement of PW5 and the omission marked from the evidence of PW3, regarding the telephonic message conveyed by his son.

Much reliance was placed on the dying declaration, PW3(a), which, according to the learned Prosecutor, coupled with the corroboration of the message spoken of by PW3, assumes very incriminating relevance. In Uka Ram (supra) the Hon'ble Supreme Court observed that the reliance on dying declarations is only in the hope that, faced with impending death, there would be no motive to utter a falsehood and on the other hand, there would be an inducement to speak the truth and only the truth; as would a conscientious and virtuous man feel compelled, under oath. But the maker being not subjected to cross-examination; a valuable right available to the accused against all who by their words incriminate him/ her, is lost. The declaration hence, should inspire the fullest confidence in the Court and every possibility of extraneous considerations influencing the same, should be absent from the circumstances. The corroboration from the telephonic message is totally absent, as we just found. We have seen PW3(a) which is not easily decipherable. Two aspects raise very serious doubts regarding PW3(a); one the translator CW20 having not been examined before Court and more importantly the delay in furnishing the FIR and the inquest report to the Court. CW20 whom PW1 engaged to translate, was found by the trial Court to be an expert proficient with Tamil; without any substantiating evidence and on the mere assertion of PW1. In this context we also have to notice that the witnesses, whose mother tongue was Tamil, in their recitals, of the written message, often differed; but the essentials were spoken. DW1 the expert did not find it easily decipherable and only said that there can be deciphered the words: 'the cause of my death' and probably 'Saravanan' too. The paper is kept inside a plastic cover and we also were of the opinion that the words are not easily decipherable.

One other aspect which looms large, is the identification of handwriting of the deceased in the so called dying declaration having not been proved. True, the close family of the deceased and his colleagues identified the handwriting. Proof of identity of hand writing is required under Section 67 of the Evidence Act and the  modes  are  prescribed  under  Sections 45,  47 and 73. Section 45, refers to opinion of experts, Section 47, to opinion  of   any  person,  who  is  acquainted  with the handwriting of the person whose signature or writing is liable to be proved under Section 67 and Section 73 is comparison by Court with authentic samples. Pandit Ishwari Prasad Misra v. Mohammed Isa (1963) 3 SCR 722 held: “Evidence given by experts of hand writing can never be conclusive, because it is, after all, opinion evidence”. Even that, given by a person acquainted with the handwriting is an opinion and so is that arrived by a Court on comparison. It should also be pertinently observed that Section 47 speaks of the opinion of a person acquainted with the writing of the author of the questioned document and not a relative. Jagdishraj Khatta (supra) was a case in which the father and cousin of the deceased were examined to prove the handwriting and even an expert, deposed that the same was similar to the writings in a note book, the ownership of which book was not ascertained. The Court found that there was no clarity as to how the relatives were acquainted with the handwriting of the deceased.

Evidence regarding identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the hand writing of such persons or (ii) during the testimony of an expert who is qualified and competent to make the comparison of the disputed writing and the admitted writing on a scientific basis and (iii) by the Court comparing the disputed document with the admitted one as held in State of Maharashtra v. Sukhdev (1992) 3 SCC 700. It was also held that the science of identification of hand writing is an imperfect and frail one, compared to the science of identification of finger prints and hence, Courts should be wary in placing implicit reliance on such opinion evidence. The rule of prudence as laid down by the Hon'ble Supreme Court is that opinion evidence cannot take the place of substantive evidence and there should be corroboration before acting on such evidence. However, it was cautioned that there is no hard and fast rule as to the weight that can be attached to the opinion of an expert, which cannot be viewed with suspicion and would depend upon each case and also on the numerous striking peculiarities and mannerisms which stand out to identify the author of the writing. Two things that were found to be imperative, are the genuineness of the specimen/admitted hand writing and the competence of the expert. Chennadi Jalapathy Reddy v. Baddam Pratapa Reddy 2019 (14) SCC 2020, after examining the precedents reiterated that, it is the duty of the Court to approach opinion evidence cautiously while determining its reliability for reason of the same being not substantive in nature. As a general rule of prudence, the court could seek independent corroboration.

In the instant case, we have the evidence of PW3 and PW4, the father and brother of the deceased, who vouched that handwriting in Ext.P3(a) is that of the deceased. However, there is nothing to indicate how they were acquainted with the handwriting of the deceased, and at the risk of repetition, Section 47 speaks of the opinion as to handwriting, being relevant when it is of any person acquainted with the handwriting of the person by whom it is supposed to be written; and not merely relatives, however close the relation be. We also have the opinion of the colleague of the deceased, who has a better opportunity to speak of acquaintance with the writings of the deceased. Be that as it may, as has been held, this is not substantive evidence and without corroboration it is not safe to rely on the writing as a dying declaration, to enter a verdict of conviction. We cannot but notice that despite the colleague of the appellant, who was examined as PW6, having deposed that the sample writing of the deceased was taken by the police from the office of TNEB, in which he was working, nothing is produced before us. The I.O denied having taken any such samples.

Dying declaration, it is trite is a weak piece of evidence and when it comes to the declaration in writing, the proof of handwriting again being only opinion evidence, renders it weaker still. There is also no corroboration available in which circumstance, we find absolutely no reason to place reliance on Ext.P3(a). In this context we also have to notice that the testimony of PW5 is to the effect that the deceased came to his house on the seventh night at about 8 P.M, went out to make a call and left around 8.45 P.M. Ext.P3 is the receipt of the call made from the booth. The telephone call according to the prosecution is made from a nearby booth, testified by PW5 to be at walking distance from his house. The Inquest Report, Ext.P2, however puts the time of the call, as decipherable from Ext.P3, to be at 5.25 P.M., evoking further doubts on the testimony of PW5.

Pertinent also is the fact that the FIR which was registered on 11.12.2004 at 9.30 hours reached the Magistrate's Court only on 14.12.2004. The learned Counsel for the accused argued that Ext.P3 could even be planted. The inquest report which was prepared on 11.12.2004, by which Ext.P3 was seized also reached the Magistrate's court only on 13.12.2004 by which time the deceased was identified from the State of Tamil Nadu and there was also a credible allegation of motive, as spoken of by the police officers at TN. PW1 himself states that the photos were identified by PW3 and PW4 on 12.12.2004 and they were brought back to the State of Kerala to identify the body from the mortuary, which was done on 13.3.2004. The telephone bill could have been obtained from the booth at Sankagiri, is the submission; which we cannot fully discount on the mere finding that no such deceitful motive can be alleged on the Police.

The learned counsel has put forth a very reasonable doubt regarding the planting of evidence. The Police, by the time they arrived back from Tamil Nadu was aware of the murder in that State and the possible connection with the murder that occurred within this State. This along with the failure to examine the person who translated the written message, no comparison having been made with the sample writing of the deceased, the inconsistency in the time when the call was made as arising from the testimony of PW5, the message being not clearly decipherable, together results in a reasonable doubt about the dying declaration as such. There was also no inquiry carried out as to the number to which the call was made nor was an attempt made to examine the person manning the booth. We are unable to give the fractured message, allegedly written by the deceased, the status of a dying declaration. There is also no corroboration to the same from the telephonic message spoken of by PW3; as found by the trial Court, the same having been proved to be a clear omission.

As for the recovery, the seizure of Tata Sumo by Ext.P10 and recovery of the 'koduval', by Ext.P11, were in the case before the Sessions Court at Namakkal and there was no vehicle or materiel object produced before the trial Court in the instant case. There is no question of any reliance being placed on the said seizure or recovery. There is no connection established of the 'koduval', to the instant crime, for which the accused was on trial. As far as Ext.P6(a) is concerned, the Trial Court found the same to be not a confession under S.27, especially since there is no fact discovered, having a direct connection to the crime. We also notice that there is no confession made of any concealment as per Ext.P6(a). True, the residence of the party in the lodge as spoken of by one of the accused, could have been used under S.8 of the Evidence Act. But the fact remains that the testimony of PW8, does not substantiate the prosecution case that A1 to 9, along with the deceased, stayed in the lodge from the 8th to the 10th or that the deceased had tried to escape, which attempt was foiled by the accused or that the accused having vacated immediately after the fracas created at the lodge, due to the failed attempt to flee on the part of the deceased.

We are unable to find any incriminating circumstance having been proved by the prosecution and we allow the appeals acquitting the accused. The accused shall be set at liberty forthwith if they are imprisoned and if released on bail, their bail bonds shall stand cancelled.