JUDGMENT
P.V. Narayanan Nambiar,
1. The dead body of P.C. Chandran, owner of Anil Jewellery, Kammathi Lane, Kozhikode was found lying at near Swagathamadu’ by the side of National Highway-17. The prosecution alleged that the deceased was murdered by the accused during the night between 8-2-1990 and 9-2-1990. Six accused were charge-sheeted by the Assistant Commissioner of Police, North Calicut City under Sections 143, 396, 302, 364, 201 read with Section 149 IPC. On the basis of an application filed by the prosecution, the first accused was tendered pardon by the trial Court and he was examined as P.W. 3 in the case. After full-fledged trial, recording the oral evidence of P.Ws. 1 to 49, marking Exts. P1 to P57 and M. Os. 1 to 44 on the side of prosecution and examining D. W. 1 and marking Exts. D1 on the side of the defence, the trial Court found that the offences alleged against the accused stand proved and accused 2 to 6 were found guilty under Sections 143, 396, 302 and 364 read with Section 149 IPC. They were acquitted under Section 201 IPC. The accused were sentenced to undergo imprisonment for life under Section 396 IPC. No separate sentence was awarded under Sections 302 and 143 IPC. They were also sentenced to undergo rigorous imprisonment for ten years under Section 364 read with Section 149 IPC.
2. A resume of the prosecution case is shown hereunder: The first accused Shaji, who was examined as P. W. 3, is the driver of a tourist taxi KL-5/ 1489. The car is usually parked at Pathanad in Pathanmthitta district. On 6-2-1990, accused 2 and 3 booked the car for a trip to Kozhikode on the morning of the next day. On 7-2-1990, accused 1 and 2 started from Pathanad and went to Perunna temple at Changanacherry. The other accused also entered the car and all of them together proceeded to Kozhikode via Alappuzha. They reached Kozhikode on the same evening and made an attempt to get at Chandran, but it failed. Therefore, they went to Kerala Bhavan Lodge at Kozhikode and stayed there. On the next day at about 8.15 p.m.; while deceased Chandran was returning to his house from his jewellery shop at Kammathi Lane, the fourth accused snatched away his bag containing cash and gold and the second accused pushed him into the car. All the accused drove away. When resistance was offered by deceased Chandran, he was strangulated and after depriving him of the bag containing cash and gold and removing valuable articles like watch and rings from him, the dead body was thrown out by the side of National Highway-17, 6 Kms. away from Kottakkal on the way to Thrissur.
3. The third accused, Murugan, is a goldsmith, who was an apprentice under the deceased. He. being a resident of Calicut for years, was acquainted with the jewellers in Kammathi Lane, Kozhikode and also the places around.
4. When the fourth accused snatched away the bag from Chandran, he called out for help. P. W. 1, Anil Kumar, son of the deceased and P. W. 5, who was a helper in Chandran’s shop, were then in the house of the deceased. On hearing that alarm, they got out of the house, but could not find anybody on the road. They proceeded further and reached Patteri junction and on enquiry, P. W. 10, Krishnakumar, told P. W. 1 that he saw a car going from the by lane entering the Kozhikode – Mavoor main road and proceeding towards Kozhikode side. He also reported to P. W. 1 that he saw a struggle going on inside the car. P. W. 1 made enquiries with the neighbours, but could not get any useful information regarding the whereabouts of his father. He could find a pair of chappal, which belonged to his father, by the side of the neighbouring house on the road side. P. W. 1 informed the matter to the night patrol party who did nothing except advise P.W. 1 to report the matter to the Medical College Police Station. At about 2.30 a. m. P. W. 1 went to the Medical College Police Station and gave the first information statement in which he stated that he heard the alarm raised by his father and he also reported what he was told by P. W. 10 Krishnakumar, and maintained that he has recovered the chappals of his father from the bylane.
5. The next day morning, the reporter of ‘Deepika’ daily newspaper at Malappuram went to Kottakkal Police Station and gave a statement that he had found the dead body of a man lying on the road side, 6 kms. away from Kottakkal towards Thrissur side. On getting this information, the Sub-Inspector of Police, Kottakkal Police Station proceeded to the spot, conducted inquest and got photographs of the dead body taken. He also removed the dead body to the mortuary of the Government Hospital, Manjeri. Information was conveyed to the Medical College Police Station and P. W. 1 was brought to the mortuary, who identified the dead body of his father. The investigation revealed that the number of the ambassador car, which was driven by the first accused (P. W. 3) is KL-5/1489, though by mistake it was noted as KL-5/1469 by P. W. 10, Krishnakumar. The first accused was arrested and on the basis of the information conveyed by him, the other accused were also arrested. Investigation was completed and charge sheet was laid.
6. As the first accused turned to be an approver, pardon was tendered to him. He did not face the trial, but was arrayed as the main witness for the prosecution. Only accused 2 to 6 faced the trial. They pleaded innocence and denied their involvement in any manner in the alleged offence.
7. The fate of this case depends on the acceptability or otherwise of the evidence of P. W. 3, who, according to the prosecution, was an accomplice, but later turned to be an approver. We are aware that a conviction cannot be passed on the uncorroborated testimony of the accomplice. But, if the Court is satisfied that there is corroboration on material particulars from other evidence, there is nothing wrong in basing a conviction relying on the evidence of the approver. Now, we will discuss the evidence of P. W. 3, and simultaneously see whether his evidence is corroborated by the evidence of other witnesses and documents.
8. It was on 7-2-1990, that all the accused started together and reached Kozhikode. The evidence reveals that though they made an attempt to get at the deceased on 7-2-1990, they were unsuccessful and so they had to spent a night in Kozhikode. Unfortunately, they were successful on the next day. According to P. W. 3, he was the driver of the tourist ambassador car, blue in colour, bearing registration No. KL-5/1489 which belongs to one Saramma Mathew. On 6-2-1990, he was approached by the second and third accused along with the fourth accused. Second accused was known to him previously. They booked the car to go over to Kozhikode on the next day, in connection with the marriage of the third accused Murugan. Accordingly, on 7-2-1990, at about 9.30 a.m., the second accused boarded the car and asked P. W. 3, to take the car to Perunna temple at Changanacherry as others were waiting there. They proceeded to Perunna from where accused 3 to 6 got into the car. They came to Kozhikode via Alappuzha. P. W. 3 was not familiar with Kozhikode, but the third accused told him that he was at Kozhikode for the last 10 to 11 years working as a goldsmith and he knew the route. From Cherthala, they filled diesel in the car. After reaching Kozhikode at about 7 p.m., they went by the Mavoor road and reached Kainadi Motels situated on the road to Patteri junction. They took food from the Motel sitting in the lawn. After placing orders for the food, the fourth accused, Dhilip, went out and returned after a while saying that they have to finish the food soon and go in a hurry. All of them went to Patteri junction. The car was taken through the branch road. Then an elderly man who passed by that way looked into the car. After sometime, the third accused returned and said that he was unable to meet the man they had came to see and so they can meet him the next day. Then they proceeded to. Kerala Bhavan lodge and after parking the car in the courtyard of the lodge, occupied two rooms, 206 and 207, registered in the name of the third accused Murukan. This was what had happened on 7-2-1990.
9. This part of the evidence of P. W. 3, gets corroboration from the evidence of other witnesses. P. W. 6 is the cashier of the petrol bunk at Cherthala from where 29 liters of diesel was filled in the car driven by P. W. 3. Ext. P2 is the original bill in which the car number and the volume of diesel purchased are shown. P. W. 6 proved Ext. P2 which was taken from the possession of P. W. 3. The carbon copy of the bill book is Ext. P9 and Ext. P9(a) is the carbon copy of the bill, Ext. P2. Ext. P9 was taken into custody by the investigating officer as per Ext. P 10 mahazar. P. W. 6 is an attestor to Ext. P 10. On a reading of the evidence of P. W. 3, along with that of P. W. 6, it is clear that the evidence tendered by P. W. 3, that they proceeded from Pathanad to Kozhikode on 7-2-1990 is true and acceptable.
10. The evidence of P. W. 28, who is the Managing Director of Kainadi Motels shows that the accused went to the Motel on 7-2-1990, at about 6.45 p.m. and had food from there. There was no difficulty for the witness in identifying those persons who took food as the accused. According to him, he was supervising the arrangement made in the lawn where a party had been arranged. He also deposed that in appearance and behaviour there was something extraordinary with the accused and that was the very reason why he noticed them. He also stated that usually the customers of the Motel are persons from the upper strata of the society and the accused, in their appearance, did not belong to that category. This also is one of the reasons for noticing the accused in the Motel at the relevant time by the witnesses. Shri Kelson, the steward, who took orders for the food from the accused, has left the services of the Motel and his whereabouts were not known, adds P. W. 28. The details of the items of food supplied to the accused were also mentioned by the witness. He also added that he had noticed the blue ambassador car in which the accused had come. Though he does not know the number, he is sure that it has a KL-5 registration. During the course of the test identification parade conducted by the Magistrate in the Jail, he has identified all the accused. In the Court also, he has identified all the accused and P. W. 3. The evidence of P. W. 28, which passes the test of judicial scrutiny, also extends corroboration to the evidence of P. W. 3, the approver.
11. P. W. 25, a technical supervisor of Kozhikode Telephone Exchange, who is the resident of the Pipeline road near Patteri junction, knows the deceased and his residence. His version in the Court is that on 7-2-1990, while he was going to his house by the pipeline road, he had occasion to meet deceased Chandran and both of them proceeded together for some distance. Chandran went to his house. When they had almost reached the house of Chandran, a car came at high speed and slowed down in front of the house of Chandran, proceeded further to a distance of 100-150 metres and stopped in front of the house of Dr. Vimalraj. He could remember the colour and make of the car as a blue ambassador. Cross examination of this witness has brought out nothing to suggest that his evidence is not acceptable. We are inclined to place reliance on this witness also. His evidence also corroborates the evidence of P. W. 3.
12. Now, we will look for corroboration of that part of the evidence of P. W. 3, regarding the stay of the accused in Kerala Bhavan Lodge. The Manager of the C-Block of the Kerala Bhavan lodge was examined as P. W. 29. He deposed that at about 8.45 p.m. on 7-2-1990, all the six accused came to the lodge and they were allotted room Nos. 206 and 207 on payment of Rs. 150/- as advance. All the accused came in a blue ambassador tourist car. The register maintained in the lodge for the relevant period, Ext. P. 39, contains the entry pertaining the allotment of room Nos. 206 and 207 on 7-2-1990 at about 8.45 p.m. in the name of the third accused Murugan. The register also shows that the occupants of the rooms left the rooms at 6.55 p.m. on 8-2-1990. Ext. P39 also contains the signature of the third accused. Evidence of P. W. 29 coupled with Ext. P39 amply support the evidence of P. W. 3, regarding the stay of the accused at Kerala Bhavan Lodge. The correction regarding the number of the rooms and other over-writings contained in Ext. P39(a) are properly explained by P. W. 29. His evidence repells the criticism made by the defence that Ext. P 39 and the relevant entry contained in Ext. P39(a) have been subsequently cooked up for the purpose of the case.
13. On 8-2-1990, as deposed by P W 3 after having breakfast from the canteen attached to the lodge, accused 3 to 6 went out and returned by noon. They spent time playing cards. All of them had lunch from the canteen and at about 5.35 p.m. they had their evening tea, there in the canteen itself. An audio cassette containing a ‘mimicry’ was played in the canteen at the behest of the accused. The cassette was handed over by P. W. 3 as instructed by the other accused to the person incharge of the canteen. After having tea, P. W. 3, cleaned the car and accused 2, 4 and 5 went out. A short while later, the third accused received a telephone call. Those who had gone out returned. After vacating the rooms at about 8.30 p.m., P. W. 3, was informed that they had to proceed to the place they had gone on the previous night. According to P. W. 3, accused 3 and 6 got into the car. The other three went out and P. W. 3, was told that the other three will reach the place to which they are going. So, P. W. 3, drove the car with third accused Murugan and sixth accused Ganesan and went to Kottoli. While they reached the lane, as per the instructions of the third accused, the car was reversed and parked almost at the entrance of the lane. The third accused and P. W. 3 went to the nearby shop and had ‘sarbath’. After some time, the sixth accused also reached there. The other accused reached there by bus and one of them purchased beedi from the nearby shop and lighted it. Then accused, 2, 4 and 5 proceeded through the lane. The third accused directed P. W. 3 to take the car through the bylane and the car was taken to the State Bank colony road. Again at the direction of the third accused, he reversed the car and parked there. The left back door of the car was kept opened by accused 2 and 5. Immediately thereafter, the fourth accused came running with a black bag and got into the car. He was followed by a black fat man, who shouted ‘thief, thief. Then second accused, saying that we will catch the thief, pushed the man inside the car immediately and the others got into the car and as directed by them, P. W. 3, drove the car away. When they reached the main road, P. W. 3, heard some sound from behind which, according to him, was the sound of the scuffling going on inside the car. When he looked back, he found accused 3 to 6 holding the man and the second accused placing his hand on the face of the said man. P. W. 3, who became suspicious, slowed down the car and asked the accused “what the matter was” and then the fourth accused took out a knife and threatened the witness to obey them. The sixth accused also held the door situated” on the right side of the driver’s seat so that P.W. 3, could not open it and escape from the car. He was also asked to play the cur stereo in high volume. When they reached near Keinadi Motels, fourth accused, who was sitting on the back seat, jumped over to the front seat. They crossed a bylane and reached a wider road crossed a toll gate and proceeded towards Allappuzha. While the car was running, the second accused Anilkumar told the third accused that the man in the car has bitten him on his hand and the third accused replied that ‘we will not keep him alive’. Then the fifth accused asked P. W. 3 to hand over the thorthu (towel) to him. P. W. 3 gave the old towel which he used for cleaning the car. After some time, when he looked back, the witness saw the second and fifth accused holding the man and the fifth accused tightening the towel on his neck. After a few minutes, the second accused told the third accused that the man was dead. While the car was proceeding, the fourth accused, who was sitting in the front seat, turned towards the back and collected a watch. Thereafter, the third accused told P. W. 3, that the car should be stopped at a lonely place. After running about 30-45 minutes after the all gate the witness was asked to stop the car and the car was stopped. The accused, who was sitting in the rear, removed the deceased out of the car and left him on the road side. After returning to the car, they directed the witness to proceed further. The third accused asked the fifth accused for the bag which belonged to the deceased. The bag was handed over to him telling that there were only three yellow (gold) inside the bag. The bag was thereafter thrown out by the third accused at some place on the road side, after covering a distance of half-an-hour run of the car from the place where the dead body was abandoned. The bag was identified by P. W. 3, as M. O. 2. He also saw the sixth accused wearing a ring which according to the sixth accused, was the one got from inside the bag. When they reached Changaramkulangara, 15 liters of diesel was filled in the car. At Chalakudy, a lorry had hit the back door of the car. The accused told P. W. 3 that they would get the car repaired after reaching the destination. They reached Alappuzha early in the morning on 9-2-1990. According to the witness, accused 2 to 6 got out of the car and he was paid Rs. 2,000/- as the fare and probably for conducting repair of the door. After paying the amount, again accused 2 to 6 got into the car and went to Thiruvalla and accused 3 to 6 got out there. They gave strict warning to the witness that he should not disclose what transpired and if he informed anybody, they will wreak vengeance against him before they were caught by the police. Second accused was then taken to Mallappalli and on the way, the witness was told by the second accused that the deceased was having only Rs, 13,000/- with him, out of which he got only Rs. 2,500/-. He also added that the rings were taken by the others. P. W. 3, returned to Pathanad after dropping the second accused at Mallappalli, went to the house of his master and entrusted Rs. 2,000/-which he received as fare from the accused. He also deposed that Rs. 600/- was returned to him by the owner. He subsequently got the car repaired by one Sasi. After four days, the police took the car into custody and the bills for purchase of diesel were also recovered from him. ,
14. This part of the evidence of P. W. 3 gets ample corroboration from the evidence of other witnesses about whom we are discussing hereunder.
15. The evidence of P. W. 29, which we have already discussed, also shows that the accused were in the lodge on 8-2-1990 and they have been playing cards. Though the witness initially took objection in the accused playing cards, he directed them to close the door and play cards after accepting the explanation of the accused that they were playing for fun. The accused have been identified by the witness in the course of the test identification parade. He also identified them and P. W. 3 in Court. P. W. 30 is the Manager of the canteen attached to the Kerala Bhavan Lodge. According to him, the accused had resided in the lodge a few years ago and they had their food in the canteen. He remembers the incident as they had asked him to play ‘a mimicry cassettee’ on the recorder. The witness also was able to identify the accused in the course of test identification parade. There was no difficulty for him to identify the accused in Court also.
16. Ahammed Kabeer, who is the manager of a jewellery shop in Kammathi Lane, which is situated adjacent to that of the deceased, was examined as P. W. 31. There is a telephone connection in his shop. On the evening of 8-2-1990, three persons were standing in the vacant place situated adjacent to his shop. Thereafter, they came to his shop. The fourth accused sought his permission to make a telephone call and he made a call to Kerala Bhavan Lodge. The witness also stated that usually he closes the shop at about 6-6.30 p.m. as there was no electric connection in the shop. He also deposed that on the relevant day, i. e., on 8-2-1990, when he left the place he saw deceased Chandran and his employee, P. W. 5 in their shop. This witness was also asked to identify the accused in the course of test identification parade and without any difficulty he identified accused 4 and 5.
17. The receptionist of the Kerala Bhavan Lodge was examined as P. W. 32. He gave an account of the telephone call which was received for the inmates of Room No. 206 at about 6 p.m. on 8-2-1990, and the third accused attended the telephone.
18. P. W. 11, Raveendran, is the owner of a stationery shop situated at Patteri cross road junction. According to him deceased Chandran was in the habit of purchasing cigarettes from his shop on his way back to the house after the day’s work. Similarly, on 8-2-1990, deceased Chandran came to his shop and purchased cigarettes. Prior to this, P. W. 3, and accused 3 and 6 came to his shop and bought ‘sarbaths’ and cigarettes from him. He also was in a position to identify the ‘three strangers’ who came a few minutes before deceased Chandran came to his shop on 8-2-1990, as accused 1, 3 and 6.
19. The evidence of P. W. 10 shows that during the night the deceased was missing, himself and his friend Krishnakumar came to Kottoli and while they were proceeding to the shop of one Ramesh, they noticed a blue ambassador car parked under a tree near the house of one Vasu. The witness and Krishnakumar subsequently proceeded to Patteri cross road. The car which they noticed earlier came at a very high speed and he could notice something in the nature of a scuffle going on inside the car. He noted the registration number of the car as KL-5/ 1469. After some time, he saw two persons by name Suku and Rajan sitting on a culvert. At that time, P. W. 1 Anil Kumar, who is the son of the deceased and P. W. 5, who is the helper in the shop of the deceased came there and asked Suku whether they had seen his father alighting from the bus. P. W. 1 also told them that he heard his father shouting ‘thief, thief. Then the witness told P. W. 1 what he had seen. He has also given the number of the car to P. W. 1. On arrival of the night patrol party, he was questioned and he told them what he knew about the incident. The evidence of P. Ws. 7 and 8 also gives corroboration to the evidence of P. W. 3.
20. P. W. 7 is an autorickshaw driver and P. W. 8 is one Krishnakutty. When P.1 W. 7 went to the Marxist Party Office on 8-2-1990, he met P. W. 8 there. Both of them proceeded to meet the local Municipal Councillor. They were expecting to meet the Councillor to Patteri junction and so they waited there. At that lime, two persons alighted from a bus and one of them approached P. W. 8 and sought for a match box for lighting beedi. Then they proceeded to the pipeline road. As they could not meet the Councillor at the junction even after waiting for more than half-an-hour, they left the place. Before they left, they saw the deceased going through the road. The witnesses also noticed an ambassador car coming through the pipeline road and proceeding towards the west. During the course of the test identification parade, they could identify accused 2 and 5. P. W. 8 identified the second accused as the person who came to him and asked for the match box. Those persons were noticed by them as they were not persons of the locality.
21. The other important witnesses, as far as the prosecution is concerned, are P. Ws. 1, 2, 4 and 5. The son of the deceased is P. W. 1, who was a student of the Medical College Hospital, Kozhikode. He was in his house during the evening of 8-2-1990. When he was having dinner, he heard the shouting “theif, thief from the road and the witness identified this to be the voice of his father. His sister Kavitha also identified the voice as that of her father. Immediately he rushed out and went to the road along with P. W. 5 and though they looked around, they could not find anybody. So, both of them ran up to the main road and they reached the main road junction. They saw Suku and another sitting on the culvert. P. Ws. 1 and 5 made enquiries to them about the deceased. Then P. W. 10 told P. W. 1, that he saw a blue ambassador tourist car coming from the cross road and going towards west and he also saw scuffling going on inside the car. He gave the car number to P. W. 1 as KL-5/1469. P. Ws. 1 and 5 returned home and when they reached the front of the house of P. W. 2 Abraham, they saw the chappal of deceased Chandran lying there. P. W. 1. collected the chappal and went to his house. Then they proceeded in the opposite direction in search of the deceased. P.W.1, informed the matter over telephone to the police control room. After 15 minutes, the police control party came, who were appraised of the facts. They only advised the witness to report the matter to the Medical College Police Station which he did at about 2.30 a.m. on 9-2-1990. He went to the Medical College Police Station and gave a statement to the police as Ext. P 1. From his evidence, it is clear that his father used to carry a hand-bag in which he kept money and gold ornaments. According to him, his father was having about Rs. 13,000/- in the bag on 8-2-1990. He identified M. O. 2 bag as that of his father. He was informed, on 9-2-1990, about the dead body kept in the mortuary of the Government Hospital, Manjeri and proceeded to Manjeri. The dead body was identified to be that of his father. The witness also deposed that the letters ‘PC were inscribed on two of the rings usually worn by the deceased and that an HMT watch with black strap was used by the deceased. The rings were identified by him as M. Os. 3 to 5. M. O. 6 watch and M. Os. 7 and 8 passbooks were also identified by him.
22. A neighbour of P. W. 1 is P. W. 3, who also had heard somebody shouting “thief, thief, had come out of his house. After some time, he could find P. Ws. 1 and 5 coming from the main road. The witness proceeded up to the junction where he saw Suku. He asked P. Ws. 1 and 5 whether they could find out the thief and the answer was in the negative.
23. P. W. 4, the wife of deceased Chandran, identified M. 0.2 bag as the one used by her husband on 8-2-1990. The bag, according to her, was purchased three weeks prior to the date of the incident. The deceased was having a bundle of 100 rupee notes in the bag. She identified the dress of her husband which was worn by him on the day of his death. Rings M. Os. 3 to 5 which were being worn by him for the last six years and the small gold locket were also identified by her. She had also heard her husband calling out “thief, thief at about 8 p.m. on 8-2-1990. She had also accompanied P. Ws. 1 and 5 to the road. The details spoken to by P. Ws. 1 and 5 were also spoken to by her. The ‘elus’ which was tied on her husband’s waist was identified by her as M. O. 14.
24. P. W. 5 Shamkumar, the helper in the shop of deceased Chandran, spoke in tune with the evidence tendered by P. W. 1. He has corroborated the evidence of P. W. 1 in all material particulars.
25. M. 0.2 bag was purchased by the deceased from the shop of P. W. 20 about three weeks prior to his death. On showing the photographs of the deceased, the witness could identify the person who purchased M. O. 2 bag, as deceased Chandran.
26. The evidence of P. W. 3, regarding the throwing of the dead body on the side of the National Highway-17, a few Kilometres away from Kottakkal is corroborated by the evidence of P. W. 9, the reporter of Deepika daily news paper at Malappuram. According to him, while he was going from Edappal to Malappuram on the morning of 9-2-1990, he saw a gathering on the side of the road at a place near Swagathamadu. The bus was stopped there and when the witness got down, he saw the dead body lying on the road side under a cashew tree. It was he who went to the Kottakkal Police Station and gave Ext. P 11 statement.
27. The purchase of diesel, spoken to by P. W. 3, is amply proved by Ext. P3 bill issued by M/s. M. V. Associates, Changaramkulam, as per bill No. 413. The car number is also noted in the bill. P. W. 39, the uncle of the owner of the petrol bunk at Changaramkulam is the person who prepared Ext. P3 bill. The bill book containing the carbon copy was produced by him before the investigating agency, which has been marked as Ext. P47. The carbon copy of Ext. P3 is Ext. P47(a). The witness deposed that Ext. P3 is in his own handwriting and he supplied diesel at about 11 p. m. on 8-2-1990. P. W. 46, who took into custody Ext. P47 as per Ext. P14 mahazar, has given evidence in support of the evidence of P. Ws. 3 and 39.
28. Though initially there was some confusion regarding the registration number of the car, there was no difficulty in concluding that it is the car bearing registration No. KL-5/1489 which was driven by P. W. 3 and filled diesel from the petrol bunk of P. W. 39. Though P. W. 10 had noticed the car number, he mistook the number as ” 1469′ instead of ‘1489’. This mistake was conveyed to P. W. 1 which, in turn, was conveyed to the investigating agency. But when steps were taken by the investigating agency and on verification of the relevant records kept in the Changanacherry Regional Transport Office, it was found that the vehicle KL-5/1469 is a Yamaha motor cycle and vehicle KL-5/1489 is a Hindustan Ambassador diesel make car registered in the name of one Saramma Mathew. The register is Ext. P 33. P. W. 26 gave evidence in support of the particulars in Ex. P33. Ext. P33 was also proved by him in which the entry regarding the vehicle KL-5/ 1469 (motor cycle) is recorded. Thus, the confusion regarding the registration number was got cleared. The car was seized by P. W. 49, Circle Inspector of Police on 14-2-1990 and the car along with P. W. 3 were taken to Kozhikode, Exts. P2 and P3 bills for purchase of diesel for the vehicle were also seized by the investigating officer as per Ext. P44 mahazar. Ext. P5, the daily statement; Ext. P6, the registration book; Ext. P7, trip sheet; M. O. 9 thorthu and other material objects, which were marked as M. Os. 27 to 36, were seized by the investigating agency. The meter reading noted in the records kept by P. W. 3, also tallies with the details of trip given by him. It had covered 697 kilometers on 7-2-1990 and 8-2-1990. The diary maintained by him shows an entry regarding repair of the door of the car. This also agrees with the evidence of P. W. 3. The evidence of P. W. 8, Sasidharan, who is the workshop owner at Pathanad corroborates the evidence of P. W. 3 regarding the repair of the car.
29. After the arrest of the accused, P. W. 49 conducted search of their body and M. 0.4, and Rs. 60/- were seized from the third accused. There is inscription of the letters “PC” inside the ring, M. O. 4. On search of the body of the fourth accused, M. O. 6 and Rs. 22/- were seized. M. 0. 3 and Rs. 30/- were seized from the fifth accused. Exts. P36, P37 and P38 are the mahazars respectively for the seizure of the articles from accused 3, 4 and 5. P. W. 27 is the witness to the mahazar. M. O. 3 also contains the inscription “PC” on the back side of the ring. M. O. 5 ring and M. 0.13 gold locket were seized from the sixth accused when he was arrested from Kozhikode. Ext. P14 is the mahazar regarding the seizure of articles. P. W. 41 is the witness to Ext. P 14. P. W. 40 deposed that the third accused had worked as a goldsmith in his father’s shop. The arrest and search of the body of the sixth accused were proved by P. W. 7, who is a porter at Palayam Bus Stand, Kozhikode.
30. P. W. 13, Dr. Thomas Mathew, conducted post-mortem on the body of the deceased and issued Ext. P 14 report. He has noted multiple spotted abrasions around chest and above the nipple, contused abrasions on the front of the left knee and contused abrasions transverse all around the neck except for the length of 10 cms on the right side of the neck. On dissection of the neck, bone of the thyroid cartilage was found broken with infiltration of blood into the tissues around. His evidence further shows that the ‘post-mortem findings are consistent with death due to strangulation. According to the doctor, injury Nos. 1 and 2 could be caused by that part of the body coming into contact with any rough surface during the course of a scuffle. His evidence further shows that if a cloth was tightened around the neck of a man, injuries found on the neck is possible. The medical evidence also substantially corroborates the evidence tendered by P. W. 3, regarding the scuffle in the car and also the strangulation.
31. The injury sustained by the second accused at the time of the scuffle was proved by P. W. 14. The doctor examined him on 15-2-1990 at about 11 a. m. and noted three injuries which are consistent with the case advanced by the prosecution and spoken to by P. W. 3.
32. We are not discussing the evidence regarding recovery of the hair and the finger print from the car driven by P. W. 3 as this evidence is not sufficient to connect the accused with the crime. It is very doubtful whether the finger prints and the hair could be available for examination when the car itself was seized and recovery made on 15-2-1990. The evidence of P. W. 23, to an extent, supports the prosecution case. He was a subscriber to the instalment scheme and his name finds a place in M. 0.8, which was issued by the deceased. During the course of the test identification parade, the material witnesses have identified the accused. Second accused, Anilkumar, was identified by P. Ws. 7, 8, 11, 28 and 29; third accused, Murukan, by P. Ws. 11, 28, 29 and 30; fourth accused, Dhilip. by P. Ws. 28, 29 and 30; fifth accused, Sabu, by P. Ws. 7, 28, 29 and 31 and the sixth accused, Ganesh, by P. Ws. 11, 28, 29 and 30.
33. The witnesses, whom we have discussed above, according to us, have given a true account of what transpired on 7-2-1990 and 8-2-1990 and there is nothing brought out in the cross examination to reject their testimony. They are credible, and natural witnesses on whom we are inclined to place reliance. The items of evidence detailed above give ample corroboration to the evidence of P. W. 3. He gets corroboration from the medical evidence also. So, we are inclined to come to the conclusion that what P. W. 3, has deposed before the Court is true, though he was one of the accused and treated to be an accomplice to the crime. So, we have no option, but to come to the conclusion that the accused had committed the offences alleged against them and the trial Court was also right in concluding that it is the accused, who are facing trial, who kidnapped deceased Chandran, robbed him of the valuables, strangulated and threw him on the road side.
34. A question of law regarding the status of P. W. 3, and recording his evidence was raised by counsel for the appellants. According to counsel, P. W. 3, who was the first accused, should not have been examined as a witness and he cannot be treated as a person to whom pardon has been tendered by the Sessions Court. The base of this argument is that no statement of this witness is recorded under Section 164, Cr. P. C. by the Sessions Court. Counsel submits that it is incumbent on the part of the Sessions Court to have recorded the statement of the first accused under Section 164 Cr. P, C. before he was examined as an approver.
35. Before dealing with this question, we will point out here what transpired before the Sessions Court in relation to the grant of pardon to the first accused and the circumstances under which he was examined as P. W. 3. First accused, Shaji, has given a statement under Section !64 Cr. P. C. before the Additional Judicial First Class Magistrate’s Court. The prosecution filed a petition under Section 306 Cr. P. C. before the Chief Judicial Magistrate’s Court, Kozhikode to tender pardon to the first accused to make him an accomplice, but learned Chief Judicial Magistrate did not pass any order thereon. After the case has been committed to the Court of Session, the Special Prosecutor appointed in this case filed a petition before it under Section 307 Cr. P. C. to tender pardon to the first accused and pardon was granted on condition mentioned in the order in C. M. P. No. 57 of 1992, dated 13-1-1992. It was thus the first accused was made an approver in the case.
36. The procedure for tendering pardon to an accomplice is prescribed under Sections 306, 307 and 308 Cr. P. C. Section 306 deals with the powers of the Chief Judicial Magistrate or Metropolitan Magistrate and the Magistrate of the First Class to tender pardon to such a person “on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. This section applies even to an offence triable exclusively by the Court of Sessions or by the Court of Special Judge. Sub-section (3) of Section 306 Cr. P. C. provides that every Magistrate who tenders pardon under Sub-section (1) shall record his reasons for so doing. Every person accepting a tender of pardon made under Sub-section (1) of Section 306 shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence. If the trial is to be held by the Court of Session, the Magistrate shall commit the case to that Court.
37. With regard to the Court of Session, the power to grant pardon and the procedure for the same is prescribed under Section 307 Cr. P. C. which reads as follows:-
“307. At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.”
The condition is not mentioned in Section 307 Cr. P. C, but mentioned only in Section 306(1) of Cr. P. C. The only condition which is contained in the said Section is that “the person to whom pardon is granted should make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.” Recording a statement under Section 164 is not a ”condition” for granting pardon.
38. The argument of counsel for the appellants is based on the provisions of Section 308(2) Cr. P. C. which states that any person accepting the tender of pardon and recorded by a Magistrate under Section 164 or by a Court under Sub-section (4) of Section 306 may be given in evidence against him at such trial. The trial which is dealt with in this section is prosecuting the accused to whom conditional pardon is granted for wilfully concealing anything essential or for giving false evidence. This argument also is far-fetched as the wording in Sub-section (2) of Section 308 Cr. P. C. is very clear which obliges the Magistrate alone to record a statement under Section 164 and such an obligation is not there for the Court of Session. The Code has made a distinction between the Magistrate and the Court of Session for obvious reasons. If the Code does not enjoin a duty on the Court of Session to examine the first accused under Section 164 Cr. P. C. the argument that as he was not examined under Section 164 Cr. P. C, he should not have been treated as an approver and ought not have been examined as a witness cannot be accepted.
39. We gain support to the proposition stated above from the decision of the Orissa High Court in State v. Bigyan Mallik, 1975 Cri LJ 1937. The Orissa High Court held that the phrase ‘same condition’ in Section 307 Cr. P. C. obviously makes a reference to Section 306(1) under which the Magistrate may tender pardon to the person supposed to have been concerned in an offence on condition of his making a full and true disclosure. The requirement of Section 306(4) (a) that the person accepting a tender of pardon has to be examined as a witness in the Court of the Magistrate and in the subsequent trial, if any, is (tot a condition subject to which pardon is granted. When pardon has been granted by the Sessions Judge under Section 307. it is not necessary to comply with the requirement of Section 306(4) in so far as it requires that the person to whom pardon has been tendered should be examined as a witness in the Court of the Magistrate taking cognizance of the offence and also in the subsequent trial, if any. It also held that examination of a person to whom pardon is tendered is not a condition of the tender of pardon. Therefore, it cannot be held that when for the first time at the Sessions stage pardon is tendered, the committal becomes vitiated and must be taken afresh in order that the requirement of Sub-section (4) (1) (a) of Section 306 Cr. P. C. may be complied with. We are in perfect agreement with the decision of the Orissa High Court. So, it follows that the argument of counsel for, the appellants has no legs to stand on and it is only to be rejected. We hold that there is no irregularity or illegality committed by the Court of Session in not examining the first accused before he was examined as P. W. 3. We also note that the power of recording a statement under Section 164 Cr. P. C. is given to the Magistrate and not to a Court of Session.
40. Counsel for the appellants also brought to our notice a Division Bench decision of this Court in State of Kerala v. Manu Surendran, (1990) 1 Ker LT 53 : (1991 Cri LJ 27). We are afraid that the said decision has no bearing on the facts of this case. What the Division Bench’ there was concerned was regarding the procedure for granting pardon by the Magistrate as empowered under Section 306 Cr. P. C. It is, in that context, the Division Bench said that the Magistrate should record a statement of the witness under Section 164 Cr. P. C. The power of the Sessions Court under Section 307 Cr. P. C. to grant pardon was never the subject matter of the decision. Even incidentally such a power was not considered by the Division Bench. So, it cannot be said that the decision referred to above is an authority for the proposition that even the Sessions Court should record a statement of the accused before pardon is granted and he is examined as a witness.
41. The trial Court has considered the various circumstances which point out the guilt of the accused and come to the right conclusion regarding their involvement in the crime. The evidence of D. W. 1 was also considered by the trial Court and the same was read out to us. We find nothing in the evidence of D. W. 1 to substantiate the defence case.
In the result, the appeals fail. The conviction and sentence passed by the trial Court are just and proper and are confirmed. We find no reason to interfere with the same. The Criminal Appeals are dismissed.