1. The 1st accused Fr. George Cherian alias Ravi Achan a Jacobite Christian Priest, is convicted under S.302, 354, 201 and 120-B I.P.C. by the court below and has been sentenced to imprisonment for life under S.302, rigorous imprisonment for one year under S.354 and rigorous imprisonment for 3 years under S.201 I.P.C. There is no separate sentence under S.120-B I.P.C. The Sessions Court has directed the sentences to run concurrently. The 1st accused has filed Crl. A. No. 51/1985 against his conviction and sentence. Accused 2 and 3 are convicted under S.201, 404 and 120-B I.P.C. and sentenced to suffer rigorous imprisonment for 3 years under S.201 and for two years under S.404 I.P.C. There is no separate sentence under S.120-B I.P.C. The Sessions Court has directed the sentences to run concurrently. Accused 2 and 3 have filed Crl. A. No. 43/1985 against their conviction and sentence.

2. The 1st accused was charged under S.376, 302, 201 and 120-B I.P.C. According to the prosecution, he had on 23rd April, 1984 between 2.15p.m. and 4.30 p.m. committed the murder of a young college girl Jolly Mathew aged about 18 years in the northern room of the guest house of the Bethany Asram at Kuzhimattom Kara of Panachikadu village of Kottayam District. He was also charged under S.376 read with S.511 I.P.C. for attempt to commit rape on the girl Jolly Mathew. There were also charges against him under S.201 I.P.C. for having caused the disappearance of evidence of murder and also of criminal conspiracy under S.120-B with accused 2 and 3 for committing the offence of destroying the evidence of murder by disposing of the dead body of Jolly Mathew. Accused 2 and 3 were charged for the offences of criminal conspiracy under S.120-B and of destroying the evidence of murder by disposing of the dead body under S.201 read with S.34 I.P.C. The 2nd accused was charged under S.404 I.P.C. for having misappropriated a gold chain weighing 16.8 grams that the deceased Jolly Mathew was wearing at the time of her death, the 3rd accused was also charged under S.404 I.P.C. for having dishonestly misappropriated two gold ear-rings weighing 3.650 grams that the deceased was wearing at the time of her death.

3. Jolly Mathew was a young girl aged about 18 years. She was studying in the Nattakom Government College, Kottayam for her degree course. It is the prosecution case that on 23rd April 1984 she left her house at about 11.30 a.m. and proceeded to the college to collect her hall ticket for the first year degree examination due to commence the next day. She reached the college and after collecting the hall ticket got into a bus from the bus stand near the college on her way back home. She got down at a place called the Mandiram Junction on the M.G. Road and was seen walking along the village road. Her where about were not known afterwards.

4. The body of a girl approximately of the age of Jolly Mathew was found tied up in a gunny bag floating in a well in the compound of one Kaithayil Sunny on 2bth April 1984. The body was identified as that of Jolly Mathew and it is the prosecution case that the girl was . murdered by the 1st accused Fr. George Cherian alias Ravi Achan, who was a student of the Homoeo College, Kurichi and was also a resident in the northern room of the guest house in the Bethany Asram. The murder, according to the prosecution, had taken place after attempted rape. Accused 2 and 3 bad helped at the instance of the 1st accused to dispose of the dead body by first burying the same in a pit and later by throwing it bundled up in a gunny bag in the well in the compound of Kaithayil Sunny. Accused 2 and 3, according to the prosecution, had also misappropriated the ornaments that the deceased girl was wearing.

5. The scene of occurrence is said to be the northern room of the guest house in the Bethany Asram situated in Kuzhimattom Kara of Panachikkadu village in Kottayam District. Ext. P-67 plan prepared by P.W. 55 Village Officer of Kurichi Village shows the scene of occurrence and the pathways leading from the M.C. Road to the Bethany Asram etc. The plan shows also the location of the pit where the dead body was first buried and of the well into which it had been thrown bundled up in a gunny bag. The main highway nearest to the place of occurrence is the M.C. Road proceeding from Kottayam to Changanacherry. The Government College Nattakom where the deceased Jolly was studying is about 3 kms. to the south of Kottayam town. Three or four kilometres to the south on the M.C. Road is the Chingavanam Junction. Further to the south is the Manikam Kavala shown in, Ext. P-67 plan. The Mandiram Junction is further south. That is also shown in Ext. P-67. There is a village road from Manikkam, Kavala towards the north-eastern direction. The house of Jolly Mathew is located on the north of the village road. There are also village roads from the Mandiram Junction. The Bethany Asram and the guest house are on the east of the village road, starting off from the M.C. Road at Mandiram Junction. The approximate distance from the Mandiram Junction to the Bethany Asram is about 1 km. The Asram is established and maintained by the Jacobite denomination of the Christian community in a compound approximately of an extent of 3 acres. The Asram building is almost centrally located and is in the occupation of Priests and Sadhus of the Jacobite denomination. P.W. 32 is the Head priest and P.W. 31 is another priest residing in the Asram. The evidence in the case shows there is yet another Priest and four Sadhus in occupation of the main Asram building. There is a chapel on the south western corner of the compound. There is an old kitchen west of the asram building and a new kitchen building under construction in April/May 1984. Behind the asram building there is a cowshed. The guest house is a small building west of the asram building. It has two rooms, one on the north and the other on the south. The guest house faces east. There is a compound wall on the western boundary of the Asram premises with a gate providing for access to the village road on the west.

6. The 1st accused was a student of the Kurichi Homoeo College during the relevant period. He had his permanent residence in the Bishops Palace at Quilon and was residing as a guest in the northern room of the guest house of the Bethany Asram. The 3rd accused was in charge of the supervision of the construction work in the Asram and was occupying the southern room of the guest house. The residential house of Jolly Mathew is about 100 metres north of the Asram premises. There are also number of other neighbouring houses located in the sides of the village roads shown in the plan Ext. P-67.

7. Since Jolly Mathew did not return home until evening on 23rd April 1984, her brother P.W. 1 was informed about her disappearance. Several groups of persons went in search of her in different directions. Her father P.W. 11 and others met the Principal of the Nattakom College that night. The Principal had not seen the girl. He offered to give further information the next day after verifying the records relating to the issue of hall tickets. The search continued during the night. One of the search parties met P.W. 9 Sunila, a classmate of Jolly. They gathered the information that Jolly was seen boarding the St. Marys bus along with P.W. 7 Sreedevi, a lecturer in the Nattakom College. P.W. 1 and others on the next day went to the Nattakom College and met the Principal and the lecturer Sreedevi. Sreedevi told them that on the previous day she travelled with Jolly in St. Marys bus and that she had alighted at Chingavanam while Jolly continued her journey in the same bus. Jolly usually used to get down from the bus at Mandiram Junction on the M.C. Road from where she used to proceed to her house by foot. P.W. 1 got the further information that Jolly was seen getting down from the bus at Mandiram Junction and walking along the village road in the direction of her house. No further information could be gathered about her whereabouts. Thereafter P.W. 1 went to the Kottayam East Police Station and gave Ext. P-1 First Information Statement at 10 a.m. on 24th April 1984. P.W. 63, a Head Constable attached to the police station, recorded Ext. P-1 F.I. Statement. He also registered Crime No. 197/1984 and forwarded Ext. P-1(a) F.I.R. to the Magistrates Court.

8. P.W. 63 started investigation and he questioned P.Ws. 3, 5, 6 and 10 on the same day. P.W. 65, the Sub Inspector of Police of the same police station, took over investigation on 25th April 1984. He also questioned a few witnesses including P.W. 1 and his father P.W. 11. P.W. 66, the Circle Inspector of Police, took over the investigation on 26th April 1984. He got information on the same day at about 5 p.m. that a dead body was found floating in a well. He proceeded to the spot and saw the dead body in a well located in the purayidom of Kaithayil Sunny. The dead body was taken out from the well and P.W. 66 held an inquest. Ext. P-27 is the inquest report. The inquest report shows that the dead body was swollen and decayed with skin peeled off and It was in such a state of decomposition that foul smell was emitting from it. P.W. 66 questioned P.W. 1, the brother, and P.W. 11, the father of Jolly, and both of them identified the dead body as that of Jolly. P.W. 66 recovered M.O. 3 wrist watch and M.O. 4 strap at the time of inquest. The dead body was sent for post mortem examination, through P.W. 61 Head Constable to P.W. 33 Dr. George Paul, the Forensic Surgeon attached to the Medical College, Kottayam. P.W. 33 conducted the post mortem examination. He effected seizure of all the articles including the wearing apparels found on the dead body in the presence of P.W. 66 and entrusted all those articles to P.W. 61, a constable working under P.W. 66. P.W. 66 seized those articles as per Ext. P-15 mahazar. The articles seized consisted of M.O. 6 skirt, M.O. 7 black blouse, M.O. 10 underskirt, M.O. 11 pettycoat, M.O. 12 brassiers, M.O. 13 underwear, M.O. 15 portion of a plastic bag, M.O. 15(a) a piece of gunny bag, M.O. 15(b) a piece of coir, M.O. 15(c) a piece of plantain stem found inside the gunny bag, M.O. I5(d) safety pin, and M.Os. 15(e) and (f) pieces of the string of the skirt. P.W. 12 attested the mahazar Ext. P-15. While conducting the post mortem examination P.W. 33 preserved some strands of scalp hair for forensic test. He had forwarded the pubic hairs collected and the viscera contents to the Chemical Examiner, Trivandrum for analysis. The report of the chemical analysis later received by P.W. 33 ruled out the presence of poison in the viscera contents and also the possibility of sexual intercourse. On 28th April 1984 P.W. 66 arranged to drain the well in which the dead body was found. But nothing could be found in the well except a stone and a piece of coir rope used for tying the dead body. M.O. 21 is the stone and M.O. 22 is the piece of coir rope, both recovered under Ext, P-28 mahazar attested by P.W. 28. P.W. 66 questioned several persons including P.W. 32 Fr. Thomas and the other inmates of the asram. On 12th May 1984 he got information from P.W. 25 that a handkerchief was found lying in a tapioca garden belonging to one Kavanad Scaria. He went to the place with a police party. On inspecting the site he found some loose soil and the kerchief lying half embeded in the soil. He recovered the kerchief produced as M.O. 5. He removed the loose soil and discovered a pit 127 cms. x 40 cms. x 42 cms. He seized also from the site M.O. 14 torn pieces of a skirt, M.O. 16 a piece of plantain stem, M.O. 17 series two burnt stubs of beedies, M.O. 18 a lime shell, M.O. 19 two plastic pieces and M.O. 20 a small quantity of loose soil collected from the place. All these items were taken into custody under Ext. P-26 mahazar attested by P.Ws. 25 and 42.

9. P.W. 66 continued the investigation only up to 12th May 1984. On 13th May 1984 he received an order from the Superintendent of Police, Crime Detachment, Kottayam directing him to entrust the entire C.D. and all material objects collected to the S.P., Crime Branch, Trivandrum. P.W. 71 the Superintendent of Police, Crime Branch took over the investigation from P.W. 66. Thereafter a team of police officers including P.Ws. 67 to 70 continued the investigation under P.W. 71. The investigation was thereafter under the direct supervision and involvement of P.W. 71. P.W. 71 visited the house of Jolly on 14th May 1984. He questioned P.Ws. 1,6 and 11 and recorded their statements. They identified M.O. 5 kerchief and M.O. 14 torn pieces of cloth as belonging to deceased Jolly. On 15th May 1984 he questioned P.W. 8 and recorded her statement. Thereafter on 16th May 1984 he recorded the statements of other witnesses including P.W. 10. The other police officers who were assisting P.W. 71 also questioned several other witnesses and recorded their statements. On 25th May 1984 P.Ws. 36 and 37, two experts from the Biology Section of the Forensic Laboratory attached to the Crime Branch, arrived at Kurichi to assist P.W. 71. The experts inspected the site described in Ext. P-26 mahazar where there was a pit dug out by P.W. 66 in the tapioca plantation of Kavanad Scaria. P.W. 36 collected M.O. 26 series of hairs from the pit. Thereafter the experts inspected the site near the well from which the dead body of Jolly was recovered by P.W. 66. They collected samples of earth from that site. P.W. 71 searched several of the neighbouring houses and the Pioneer Lodge shown in the plan Ext. P-67. On 26th May 1984 P.W. 69, the Circle Inspector of Police in the team of P.W. 71, took into custody M.O. 23 series of scalp hairs kept in a bottle by P.W. 33 who had conducted the post mortem examination. P.W. 69 produced M.O. 23 hairs and the bottle before P.W. 71. This item was sent to the court by P.W. 71 on 28th May 1984 as per his report Ext. P-70. He sent also Ext. P-37 requisition requesting the court to send all material objects to the Forensic Laboratory, Trivandrum for examination and report. On 31st May 1984 P.W. 70, Dy. S.P., questioned and recorded the statements of P.Ws. 21 and 23. P.W. 21 identified the photograph of Jolly as the girl whom he had seen going into the asram compound on 23rd April 1984. P.W. 71 conducted a search of the room occupied by the 1st accused in the Bishops Palace at Quilon on 3rd June 1984. The 1st accused was also questioned. Nothing incriminating was found on the search of the room in the Bishops Palace occupied by the 1st accused. In the meanwhile P.W. 71 deputed police officers working under him to enquire about the 2nd and 3rd accused. Since the whereabouts of accused 2 and 3 were not available, a search for them was also commenced on 3rd June 1984.

10. P.W. 71 on 4th June 1984 conducted a search of the guest house attached to the Bathani Asram with the assistance of the expert P.W. 37. P.Ws. 5, 32 and 44 were also present at the search. Ext. P-33 is the search list. P.W. 71 found both the rooms of the guest house locked up. The rooms were opened with the key produced by P.W. 32. Both the rooms were found unused for sometime. There were dust and cobwebs in both the rooms. P.W. 71 collected several strands of hair from both the rooms. The hairs collected from the southern room had been identified as M.O. 24 and the hairs collected from the northern room were identified as M.O. 25.

11. We are particularly concerned with the search of the northern room which is said to be the scene of occurrence. This room when opened was found unused for a long time with dust gathered everywhere and cobwebs formed on the windows and the furniture inside the room. M.O. 25 and M.O. 25(a) are the two different groups of hairs collected from the northern room under Ext. P-33 search list. The hairs were collected and packed by P.W. 37, the expert from the forensic laboratory attached to the Crime Branch, Trivandrum. P.Ws. 37 and 71 who conducted the search on the northern room found several stains in different parts of the room, particularly in the floor and the walls; more particularly one stain was found on the floor below a tea-chest. It was of brown colour and had a diametre of 7.5 cms. Black ants were seen clustering around the spot of stain. Yet another stain white in colour was found near the door leading to the bath room. This stain was also being attacked by a group of black ants, The stains thus found were collected and taken into custody by P.W. 37. On analysis it was found that one was a bloodstain and the other was a stain due to saliva as can be gathered from Exts. P-46 and P-47 reports of analysis. The asram itself was searched and Ext. P-32, is the search list prepared by P.W. 71. P.W. 1 found a suitcase in the portico room in the asram placed underneath a cot. On opening the suitcase P.W. 71 found Exts. P-35 and P-36 record books relating to his collegiate studies kept by the 1st accused. P.W. 71 effected seizure of the same.

12. Ext. P-34 post mortem certificate shows that the dead body was in a state of decomposition. The body was bloated with pealing of cuticle from all over the body and dagloving of palms and soles. Scalp hair was loosened with its plaits intact and remained in place inside the polythene gunny bag sheets. The eyeballs were bulging. The tongue was within the mouth and facial features were distorted. Rigor mortis had disappeared and there was gas rigidity and maggots 0.8.1 cm. in size were found crawling all over the skin. Vulva and vagina were free of injuries and foreign bodies. Hymen was intact and hymenal opening was annular. The following antemortem injuries are mentioned in Ext. P-34:

"1. Four distinct pressure impressions corresponding to the upper incisor teeth on the under-surface of upper lip. Dissection showed small areas of infiltration with blood.

2. The underchin on the right side of neck showed an area of infiltration with blood 4 x 3 cm. the overlying skin being intact, Layer dissection of neck showed infiltration of blood into the small muscles over the thyroid membrane. The hyoid bone and thyroid cartilage were intact.

The gaping wound on the outer aspect of right ankle noted in the requisition for autopsy was the result of" destruction of tissues by maggots. Two similar but smaller areas were found on the inner aspect of right knee and back of left knee

The opinion as to the cause of death is mentioned as "post mortem appearances are consistent with death from violence applied to the mouth and neck". According to P.W. 33 the exact cause of death could not be ascertained because of the advanced stage of decomposition. He has, however, deposed that he cannot think of any possibility other than death by violence applied to the mouth and neck. P.W. 33 has deposed that the injured area overlies the carotid sinus and pressure over that area can stimulate the branches of vagus nerve causing reflex cardiac arrest. In cross examination P.W. 33 has also stated that signs of asphyxia could not be made out due to the decomposition of the body.

13. As many as 71 witnesses were examined for the prosecution. Exts. P-1 to P-19 were also marked. M.Os. 1 to 47 are the material objects identified in the case. The defence had Exts. D-1 to D-15 marked on its side and had also examined D.Ws. 1 to 6. After the close of the trial when questioned under S.313 of the Crl. P.C. all the accused denied their complicity in the crime charged against them. According to the 1st accused he came to know about the death of Jolly only when her photograph appeared in the local newspapers.

* * * * *

His Loardship discussed the evidence in the case in para 14 to 36 and continued:

37. There is no direct evidence to connect the accused with the crime. The case depends entirely 011 circumstantial evidence sought to, be relied on by the prosecution. The Supreme Court has laid down the principles governing the appreciation of circumstantial evidence. The circumstantial evidence should unerringly lead to the conclusion consistent with the guilt of the accused and at the same time inconsistent with any other hypothesis suggesting the innocence of the accused. In Mahmood v. State of U. P. 1976 SCC (Crl.) 72 it is stated at page 74:

"9. It is well settled that in a case dependant wholly on circumstantial evidence, the Court before recording a conviction on the basis therefor must be firmly satisfied-

(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt;

(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and

(c) that the circumstances, taken collectively, arc incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him."

Mahajan, J., as he then was, in Hanumant v. State of Madhya Pradesh AIR 1952 SC 343 [LQ/SC/1952/49] stated at page 345:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words their must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

Referring to the above decision the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 [LQ/SC/1984/171] at p. 1655 stated:

"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established.

(1) the circumstances from which the conclusion of guilt is to

be drawn should be fully established:

* * * *

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

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

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

The same principle is stated in a recent decision of the Supreme Court in Lakshmi Raj Shetty v. State of Tamil Nadu 1988 (3) SCC 319 [LQ/SC/1988/257] wherein it is stated:

"20. The law relating to the proof of a case based purely on circumstantial evidence has been settled by several authorities of this Court as well as of the High Court. In Erabkadrappa v. State of Karnataka [(1983)2 S. C. C. 330 : 1983 S. C. C. (Crl.) 447.] it was observed that in cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the circumstances so established should not only be consistent with the guilt of the accused but they must in their effect be such as to be entirely incompatible with the innocence of the accused and must exclude a reasonable hypothesis with his innocence."

38. Apart from the evidence of P. W. 21, two other circumstances relied on by the prosecution are (1) Ext. P-117 confessional statement of the 1st accused, and (2) Ext. P-47 the report of analysis of M.Os. 23, 25 and 26 scalp hairs recovered by the investigating team.

39. Ext. P-117 is the statement said to have been made by the first accused to P. W. 71 and it has been recorded in the case diary. Ext. P-117 is in Malayalam. A true translation of the same would read:

"By about 1 p. m. during the night Kunju Kunju (A-2) came By that time the pathway was deserted. When Kunju Kunju came I told him "1 have committed a mistake, you will have to help me. Krishnankutty (A-3) was called and he was also told about the same. Thereupon Krishnankutty, out of fear offered to help.

* * * * *

When they were taking away the dead body there were rings in the ears, gold chain on the neck and wrist-watch on the hand of the dead body. The gold chain and the gold rings might be in the possession of either Krishnankutty or Kunju Kunju."

According to Sri Kunjirama Menon appearing on behalf of the prosecution, the entire statement contained in Ext.P-117 is admissible in evidence and this item of evidence would conclusively establish the guilt of the 1st accused. According to Sri Sukumaran Nair appearing on behalf of the 1st accused, Ext. P-117 is wholly inadmissible in evidence. The statement was made to the investigating police officer at a time when the 1st accused was in custody. There was no discovery of any relevant fact in pursuance to the statement Ext. P-117. Learned counsel therefore submits that no part of the statement Ext. P-117 is admissible in evidence.

40. Ext. P-117 is the extract of the statement given by the 1st accused while in custody to P. W. 71, the investigating police officer during the course of the investigation. A confession to a police officer is wholly inadmissible in evidence (vide S.25 of the Evidence Act). No confession made by any person whilst in the custody of a police officer shall be proved as against him unless the confession is made in the immediate presence of a Magistrate (vide S.26 of the Evidence Act). S.27 of the Evidence Act however enacts a proviso to S.25 and 2.6 that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered maybe proved. Every statement recorded by the investigating officer in the course of investigation whether it be of the witness or the accused would fall under S.161 of the Code of Criminal Procedure. S.162 of the Code bars the admission of such statement in evidence except to the extent provided for in the proviso to the section, namely, for the purpose of contradiction and also so much of the statement as would fall under S.32(1) or S.27 of the Evidence Act. In Mahabir Mandal v. State of Bihar 1972 (3) SCR 639 the Supreme Court stated at p. 657:

. "According to S.162 of the Code of Criminal Procedure, no statement made by any person to a police officer in the course of an investigation shall be signed by the person making it or used for any purpose at any enquiry or trial in respect of any off-nee under investigation at the time when such statement was made. The only exception to the above rule is mentioned in the proviso to that section. According to the proviso, when any witness is called for the prosecution in the enquiry or trial, any part of his statement, if duly proved, may be used by the accused and with the permission of the court by the prosecution, to contradict such witness in the manner provided by S.145 of the Indian Evidence Act and when any part" of such statement is so used, any part thereof may also be used in the re-examination of such witness for the purpose only of explaining any matter referred to in his cross examination. The above rule is, however, not applicable to statements falling within the provisions of clause I of S.32 of the Indian Evidence Act or to affect the provisions of S.27 of that Act. It is also well established that the bar of inadmissibility operates not only on statements of witnessess but also on those of the accused [see Narayan Swami v. Emperor AIR 1937 Mad. 618 [LQ/MadHC/1937/100] ] (1939) PC 47 [LQ/PC/1939/1] .

Ext. P-1 17 will be admissible in evidence only if it is brought under S.27 of S.32 of the Evidence Act. S.32 has admittedly no application and the only question is whether the whole or any part of the statement contained in Ext. P-1 17 can be admitted under S.27 of the Evidence Act. Only so much of the statement as is directly related to the facts discovered is admissible under S.27 of the Evidence Act. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is a direct outcome of such information. Secondly only such portion of the information as is distinctly connected with the said discovery is admissible against the accused. Thirdly the discovery of the fact must relate to the commission of some offence. The embargo against the admissibility of statements of accused before the police will not apply if all the above conditions are fulfilled.

41. A Full Bench of the Madras High Court in Athappa Gaundan v. Emperor AIR 1937 Mad. 618 [LQ/MadHC/1937/100] took the view that all incriminating circumstances connected with the statement leading to the discovery of the fact within the meaning of S.27 of the Evidence Act are admissible in evidence. This decision was overruled by the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67. Sir John Beaumont on. behalf of the Board stated at Page 70:

"(10)..................On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in thereof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words he added with which I stabbed A these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

It was further observed at page 71:

"The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into S.27 something which is not there, and admitting in evidence a confession barred by S.26.

Except in cases in which the possession or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law."

This decision was followed by the Supreme Court in Himachal Pradesh Administration v. Om Prakash 1972 Crl. LJ 606. In that case it was held that the information given by the accused that he purchased the knife from P.W.11 and that he would show it if taken to the thari of P.W.I 1 was held not admissible under S.27 of the Evidence Act for the reason that the statement has no connection with the discovery of the knife from a place under a stone. The Supreme Court stated at page 616:

"It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the cause and effect. That information which docs not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under S.27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally S.27 is brought into Operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which is now known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused."

42. The Supreme Court considered the scope and amblitude of S.27 of the Evidence Act in Mohmed Inayahdlah v. The State of Maharashtra 1976 SCC (Crl. ) 199. It is stated at page 202:

"12. The expression provided that together with the phrase "whether it amounts to a confession or not show that the section is in the nature of an exception to the preceding provisions particularly S.25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, S.24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albiet a relevant fact in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only so much of the information as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word distinctly means directly, indubitably, strictly, unmistakably. The word has been advisedly used to limit and define the scope of the provable information. The phrase distinctly relates to the fact thereby discovered is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."

It is also held that the fact discovered includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to the same. The statement of the accused in that case that he would tell the place of deposit of the chemical drums which he had taken from Haji Bunder was held to be not admissible as the accused had not said that he had deposited the drums there. The statement amounting to a confession of guilt of theft was held to be inadmissible as opposed to S.27 of the Evidence Act. It was also held that only the first part of the statement of the accused that he would tell the place of deposit of the drums alone is admissible and the latter part that he took out the drums from Haji Bunder vas held to be only the past history of the drums or their theft by the accused and cannot therefore be admitted in evidence under S.27 of the Evidence Act, since the drums were deposited in a musafirkhana, a public place accessible to the public, it was held there was no discovery within the meaning of S.27 of the Evidence Act. .

43. In Pohalya Motya Valvi v. State of Maharashtra (1980) SCC (Crl.) 261 it is held that the confessional statement to be admissible under S.27 of the Evidence Act should show that the accused himself had hidden the weapon thus connecting the accused with the crime. Referring to the Marathi expression used in the confessional statement the Supreme Court observed at page 266:

"It may be that being not conversant with Marathi language our translation may not be appropriate but if this recovery of bloodstained spear is the only important circumstance of an incriminating character established in this case and if the authorship of concealment is not clearly borne out by cogent and incontrovertible evidence but as the High Court observes left to be inferred by implication, we have considerable hesitation in placing implicit reliance upon it. More so when it is a confessional statement which becomes admissible under S.27 of Evidence Act though made in the immediate presence of a police officer. The recovery of a bloodstained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. And in this case Bhamta was another coaccused. The appellant may have only the knowledge of the place where it was hidden. To make such circumstances incriminating it must be shown that the appellant himself had concealed the bloodstained spear which was the weapon of offence and on this point the language used in the contemporaneous record Ext. 28 is not free from doubt and when two construct ions are possible in a criminal trial, the one beneficial to the accused will have to be adopted."

The same principle is reiterated in State of Uttar Pradesh v. Jageshwar and others 1983 SCC (Crl.) 427 wherein it is held that the statement should contain the makers connection with the fact discovered and that only so much of the statement as would directly lead to the discovery alone is admissible under S.27 of the Evidence Act.

44. It is clear from the above decisions that a statement made to the police officer by an accused in custody is admissible only to the extent to which the statement related distinctly to the fact thereby discovered and not any further. It is also clear that any statement made by an accused in custody to the invesigating officer in the course of investigation is totally inadmissible in evidence in view of the provisions contained in S.25 of the Indian Evidence Act and S.162 of the Code of Criminal Procedure. Whether such statement partakes the character of admission of a fact within the meaning of S.21 or a confession under S.24 of the Evidence Act, or a mere statement of fact recorded under S.161 of the Code of Criminal Procedure unless the ban imposed by these sections is lifted by S.27 or S.32 of the Evidence Act. It is clear that what is admissible under S.27 is not merely the knowledge of the accused regarding the place of concealment of the material object, but his knowledge of the same emerging from the admission that he himself has concealed it there with the exclusion of the knowledge of others. It is also clear that what is admissible under S.27 is only so much of such information as relates distinctly to the fact thereby discovered and that "distinctly" means "directly", "indubitably", "strictly" and "unmistakably". The fact discovered includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to the same.

45. In the light of the principles discussed above no part of the statement contained in Ext. P-117 seems to be admissible in evidence. The gold chain and the rings were recovered from the places pointed out by accused 2 and 3 respectively. There was no recovery of the gold chain or the ring on the basis of Ext. P-117 statement. There was also no discovery of the place of concealment or the knowledge about the same which is directly referable to the statement Ext. P-117. The statement that the gold chain and the rings may be found in the possession of either Krishnankutty or Kunjukunju lacks specificity with regard to the person in possession of the material object. It does not also disclose a definite knowledge of the maker of the statement that the material objects are in the possession of the persons mentioned therein. The statement would appear to be only an expression of opinion that the material objects may be found in the possession of either the one or the other mentioned in the statement. The learned Special Prosecutor contended that the discovery in pursuance to Ext. P-117 related to the complicity of accused 2 and 3 in the crime. It is clear from the evidence in the case that the identity of accused 2 and 3 was discovered by the police long before the 1st accused was arrested in the case. It has come out in evidence that the Circle Inspectors P.Ws. 67, 68 and 69 were in search of accused 2 and 3 as early as from 28th May 1984. The statement Ext. P-117 is long afterwards and it is dated 19th June 1984. It is also in evidence that both accused 2 and 3 were questioned by the investigating officers before 19th June 1984. It is thus clear that there was no discovery of any relevant fact directly related to the statement Ext. P-117. We are therefore of the view that Ext. P-117 statement of the 1st accused is not admissible under S.27 of the Evidence Act. It does not also relate to any contemporaneous conduct of the 1st accused following any statement made by him and is also not admissible under S.8 of the Evidence Act. Even if the statement is held admissible in evidence, it does not in any way connect the 1st accused with the offence. It would at best disclose only his knowledge that the dead body was. taken away by accused 2 and 3 and that the gold chain and the ear-rings may be found in their possession.

46. The statement Ext. P-117 thus eliminated, the only other circumstance urged to connect the 1st accused with the crime is the evidence of P.W. 21 and Ext. P-47 report of the forensic expert P.W. 37.

47. One of the circumstance relied on by the trial court to connect the 1st accused with the crime is the opinion expressed by P.W. 37 that certain samples of human hair recovered from the northern room of the guest house occupied by the 1st accused were found similar to the samples of scalp hair taken from the dead body of deceased Jolly and the samples of human hair recovered from the pit in the tapioca garden. M.O. 23 is the sample of scalp hair collected and preserved by P.W. 33, the doctor who conducted the post mortem examination. M.O. 25 is the sample of hairs taken from the northern room of the guest house by P.W. 71 under Ext. P-33 search list. M.O. 26 is the sample of hairs taken from the pit in the tapioca garden by P.W. 36, the Joint Director of Forensic Laboratory, Trivandrum. Ext. P-47 is the report of analysis submitted by P.W. 37. Item 2 in Ext. P-47 are the hairs collected from the northern room of the guest house. This item consisted of a total of 67 long and short hairs. Out of the 67, 11 hairs were very fine and smooth in texture and straight in nature, the length ranging from 8.5 cms. to 20 cms. These 11 hairs, according to P.W. 37, had striking similarity with the texture and nature of the samples of scalp hair of the deceased ana the sample collected from the pit in the tapioca garden. The opinion expressed is that the 11 hairs collected from the northern room of the guest house of the Bathany Asram are females scalp hairs similar to the scalp hair of the deceased and the hairs collected from the pit in the tapioca garden in all the parameters chosen for comparison. In his evidence before court P.W. 37 expressed his opinion as follows: " I am of opinion that it is highly improbable that the three specimens would have come from different individuals."

The final opinion expressed by the expert as stated above is itself inconclusive.

48. Learned counsel for the defence Sri M. N. Sukumaran Nair addressed elaborate arguments that the scalp hairs collected from the three different sources had not been properly sealed and the possibility of tampering with the same and a mix up of the hairs collected from the northern room of the Bethany Asram with the scalp hairs handed over by P.W. 33 cannot be ruled out.

49. The case was investigated by the Superintendent of Police, P.W. 71, and a team of other officers working under him. In the absence of any material to show tampering of the samples collected from the three different sources, we find it difficult to accept the argument of the learned counsel that the samples had been mixed up and the report of analysis cannot be accepted for that reason. The Supreme Court in Raja Khima v. State of Saurashtra AIR 1956 SC 217 [LQ/SC/1955/120] stated at page 230:

"The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."

In State of Kerala v. M. M. Mathew 1978 (4) SCC 65 [LQ/SC/1978/208] it is stated at page 68:

"It is true that the courts of law have to judge the evidence before them by applying the well recognised test of basic human probabilities and that some of the observations made by the Sessions Judge especially one to the effect that the evidence of officers constituting the inspecting party is highly interested because they want that the accused are convicted cannot be accepted as it runs counter to the well recognised principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case."

The same view is expressed in a recent decision of the Supreme Court in State of U.P. v., Krishna Gopal and another 1988 (4) SCC 302 [LQ/SC/1988/397] at page 312. We are not therefore inclined to accept the submission that the investigating officers had tampered with the hair samples to bring about the result of identity of the person whose hair was collected from the three different places.

50. M.O. 23 is the scalp hair collected by P.W. 33 who conducted the post mortem examination on 27th April 1984. On 26th May 1984 he received a telephone message from P.W. 71 to arrange for exhumation of the dead body for collecting a sample of scalp hair. P.W. 33 informed P.W. 71 that he had already collected and kept with him a sample of scalp hairs from the dead body. P.W. 71 deputed P.W. 69, Circle Inspector of Police, to receive the sample of scalp hair from P.W. 33. P.W. 33 delivered a glass bottle containing the scalp hair to P.W. 69. P.W. 69 took the same in his custody under Ext. P-97 mahazar dated 26th May 1984. P.W. 69 handed over the bottle containing the scalp hair and Ext. P-97 mahazar to P.W. 71 on 26th May 1984. P.W. 71 forwarded the same to the court together with the other items of material objects with Ext. P-70 list and Ext. P-37 forwarding note signed by him. P.W. 58, the U.D. Clerk attached to the court of the Judicial Magistrate of the Second Class, Kottayam, received the material objects mentioned in Ext. P-70 including the scalp hair M.O. 23. All the material objects including M.O. 23 were packed and sealed in the presence of the Magistrate with the seal of the court and the parcel

was sent to the Forensic Science Laboratory, Trivandrum for analysis. P.W. 35, the Assistant Director of Physiology, Forensic Science Laboratory, received the bag containing the material objects including M.O. 23. P.W. 35 acknowledged receipt of the same to the Judicial Second Class Magistrate, Kottayam as per his letter Ext. P-38.

51. M.O. 26 is the sample hair collected from the pit in the tapioca garden by P.W. 36. The strands of hair collected from the pit were forwarded by P.W. 36 to the Forensic Laboratory for examination. M.O. 25 consists of the strands of hair collected from the northern room of the guest house in the Bethany Asram on search conducted by P.W. 71 on 4th June 1984 with the assistance of the expert P.W. 37 and the team of officers working under him. In the course of the search P.W. 37 collected various strands of hairs from the northern room of the guest house. P.W. 37 packed the same and handed it over to P.W. 71 at the place of search itself. P.W. 71 despatched the same along with other material objects to the court of Judicial Second Glass Magistrate on 5th June 1984 together with the list Ext. P-69. Ext. P-33 is the search list forwarded to the court. Ext. P-45 is the forwarding note despatched to the court by P.W. 71. P.W. 57, the Head Clerk of the Court, received these material objects together with the forwarding note Ext. P-45 and the list Ext. P-69. All these items packed and sealed with the seal of the court in the presence of the Magistrate were sent to the Forensic Science Laboratory, Trivandrum. P.W. 37, the expert, had acknowledged the receipt of the same as per his letter dated 15th June 1987 addressed to the Judicial Second Class Magistrate, Kottayam, attached to the report Ext. P-47 submitted to the court by P.W. 37.

52. P.Ws. 36 and 37 are the experts examined by the prosecution. Exts. P-46 and 47 are the reports submitted by P.W. 37. P.W. 36 deposed that he had also occasion to see the hair sent for analysis and that the hair had structural peculiarities that he could see under the microscope. He has, however, admitted in cross examination "I had not compared the hair collected by me (M.O. 26) with any other hair". The trial court has accepted and acted upon the opinion expressed by P.W. 37 in his report Ext. P-37. P.W. 37 has deposed that he had noticed structural peculiarities in the formation of the medulla of the hairs examined by him and that he found similarity in all the samples of hairs examined by him namely M.Os. 23, 24 and 25. He has expressed the opinion that it is highly improbable that these three samples would have come from three different individuals. He has, however, admitted in cross examination at page 33 of his deposition that if individual parameters are taken into consideration, there will be large number of hairs showing similar pattern. It is also stated that there are slight variations in measurements in regard to parameters 11, 12, 13 and 14. He admitted that he had only used the instrumental method and had not adopted the microchemical method, nor did he conduct the neutron activation analysis. He has in cross examination admitted that he could not say whether the brother, sister or any other blood relations of the individual would have the same type of hairs.

53. Hair analysis has hot yet developed as a perfect science. Modi in his Medical Jurisprudence and Toxicology, 21st Edn, states at pages 151 and 152:

"If the questioned hair or a piece of hair is to be reliably shown to have originated from a particular person the incidence of one or more of its characteristics in the general population has to be statistically shown as almost rare or infrequent. The microscopic characteristics like the scale-count (number of scales per cm.) and medullary index (the ratio of the medulla diameter and the shaft diameter at a place where the latter is maximum) have been found to be of limited use on account of their variation along the shaft of hair of an individual being comparable with those found among hairs of different individuals. Unless an adequate number of hair is obtained as questioned hair, the sophisticated and very highly sensitive method like the neutron activation analysis may also be scientifically unconvincing and unsuitable for court use."

It is further stated at page 153:

"Extensive work is yet necessary for universal acceptance of these approaches to the examination of even small pieces of hair. Till then it can only be said that by laboratory examination dissimilarity of hair can be more reliably shown than their similarity. Age and Sex of hair also cannot be opined with high degree of reliability in all cases. Any opinion given should therefore be worded with due caution indicating the limitations of examination carried out."

Parikh in his Textbook on Medical Jurisprudence and Toxicology, 4th Edn. states at page 640:

"Examination of hair is of importance in identification. Although one cannot say that a hair came from a particular individual, by careful comparison, one can state that it could have come from him."

It is further stated at the same page:

"The elemental composition of hair may be determined by neutron activation analysis. As many as 29 elements have been detected in human hair. This method may be helpful in identification when comparison samples are available."

In Fields Expert Evidence, 2nd Edn. it is stated at page 234:

"The writers on Medical Jurisprudence, however, have stated that from microscopic examination of the hairs it is possible to say whether they are of the same or of different colours or sizes and from the examination it may help in deciding where the hairs come from. Taylor cites some cases showing that hairs were identified as belonging to particular persons. In Kanbi Karsan Jadav v. Stale of Gujarat AIR 1966 SC 821 [LQ/SC/1962/24] , a scarf has been found which the High Court has held as belonging to the appellant and hairs both of the deceased as well as the appellant were found on that scarf."

Dr. B. R. Sharma in his text book on Forensic Science in Criminal Investigation and Trials, 2nd Edn. States at page 663:

"The identification of hair is not conclusive at the present stage of development. It cannot be said that the hairs in question belong to a particular individual and could not come from any other person. In extremely rare cases, the presence . of some individual dye, contamination, some extraordinary defect or disease in the hair may permit individualization."

It is further stated at the same page:

"Identification of hairs is not an easy task. It requires extensive experience in the field, because there are variations in the hairs of the same person at the same time and at different times. Further, there are similarities in the hairs of different persons. However, recent advances, especially neutron activation analysis (N.A.A.) and blood typing of hair hold promise for more definite and acceptable identifications. The learned author" states at page 674:

"It is not possible to individualise hair and say that they belong to a particular person at present, except in rare cases where external contaminations, defects or diseases may so permit. However, it is hoped it shall be possible to do so in the near future."

In Taylors Principles and Practice of Medical Jurisprudence 13th Edn. it is stated at page 177:.

"In view of its importance as trace evidence much research has been carried out in an attempt to positively identify hair as having come from one individual. In fact, it was hoped at one time that hair would have the specificity of fingerprints. This is not so, but nevertheless the examination of hairs has advanced sufficiently in recent years for the forensic scientist to provide a great deal of information from his examination."

Geoffrey Davies in his Forensic Science, 2nd Edn. states at page 367:

"Considerable attention has been directed to the most perplexing problem of forensic hair examinations: the determination of individual origin of human scalp hairs. As with all other traces, the quantity and quality of questioned and exemplar samples are crucial factors.

The greater the number of hairs complete from root to tip, the more confident the conclusions are as to the dissimilarity or identity. Hairs from the head of one person vary naturally among themselves and even single hairs may exhibit variations in diameter and other features. Cosmetic treatments and abnormalities may be significant. A distinctive feature occurring throughout the samples increases confidence in a conclusion of identical origin. In the absence of distinguishing characteristics, the conclusion as to origin cannot be definitive solely on the basis of laboratory examinations. However, in most cases, the fundamental problem is to differentiate between specified individuals as to the donor of the trace sample, physical features such as refractive index, density, and scale counts generally are not significant in this respect. Several studies of variations of trace elements in hair have failed to demonstrate distinctive individual patterns."

Lemoyne Snyder in his Homicide Investigation, 3rd Edn. states at page 352:

"It is never possible to state that the hairs on the automobile must have come from the victim and could not have come from any other human being. Thus, hair evidence, while valuable from the circumstantial point of view, does not have the highest probative value."

Peter R. De Forest, R. E. Gaensslen and Henry C. Lee in their "Forensic Science, an introduction to criminalistics" states at page 222:

"The most definitive hair comparison method at present is examination of the microscopic morphology. Although the process is subjective and time-consuming, a forensic microscopist can use it to distinguish many closely related hairs from one another. If differences cannot be found after a lengthy examination, a report is generally issued that says the hairs could have had a common origin, not a very satisfactory conclusion in view of the effort required."

It is further stated at page 223:

"Nearly all the parameters, however, can vary continuously over a fairly wide range within a given sample, and even within the same hair. This variation and the fact that objective observations of many of the properties are difficult limit the overall objectivity of the comparison. Combining a large number of essentially subjective observations does not necessarily produce an objective end result"

Richard Safer stein in his textbook of Criminalistics states at page 137:

"Most often when hair evidence is present in a criminal case, the prime purpose for its examination in a crime laboratory is to establish whether the hair is human or animal in origin, or to determine whether human hair of unknown origin compares with hair that is known to have come from a particular individual. While the distinction of animal hair from human hair can normally be accomplished with little difficulty, the problem of human hair comparisons is one that must be undertaken with extreme caution and with an awareness of hairs tendency to exhibit variable morphological characteristics from one person to another, as well as within a single individual."

In the textbook of Criminal Investigation by John Adam and Collyer Adam, 5th Edn. edited by Richard Leofric Jackson it is stated at page 110:

"The detailed structure of the medulla and its diameter, compared with that of the hair shaft as a whole, together with the distribution and character of the pigment, the scale pattern of the cuticle and the appearance of the hair in transverse section all provide features which, in the aggregate, enable the expert to identify any given hair with certainty."

In the textbook of Criminalistics by Califana/Levkow it is stated at page 106:

"At one time, hair with long, tapering ends was identifiable with the female sex, but this is not true today because males also wear their hair long, Female scalp hairs often have a much thinner diameter than the male hairs."

At page 108 it is stated:

"Years ago, races could be definitely determined by an examination of hair, but intermarriages make identification less certain these days. Caucasians have the highest number of colors-red, brown, blonde, and black. Chinese, Japanese, Mongols, and American Indians have straight black hair,"

53. The learned Special Prosecutor placed considerable reliance on the decisions of the Supreme Court in Kanbi Karsan Jadav v. State of Gujarat AIR 1966 SC 821 [LQ/SC/1962/24] and Maghar Singh v. State of Punjab 1975 (4) SCC 234 [LQ/SC/1975/164] in support of the proposition that the results, of scientific examination of hair had been accepted as a circumstance to prove the guilt of the accused. In both these cases the results of scientific examination of hair had been relied on along with various other -circumstances connecting the accused with the crime. In Kanbi Karsan Jadavs case AIR 1966 SC 821 [LQ/SC/1962/24] it is stated at page 823:

"But a scarf has been found which the High Court has held as belonging to the appellant and hairs both of the deceased as well as of the appellant were found on that scarf. It was argued that the finding of the hairs was of no consequence and at least the Chemical Examiner was not the proper expert who could depose as to the similarity or otherwise of the hairs. The writers on medical jurisprudence, however, have stated that from the microscopic examination of the hairs it is possible to say whether they are of the same or of different colours or sizes and from the examination it may help in deciding where the hairs come from. In Taylors Medical Jurisprudence (1956 Edn.) Vol. I at page 122, some cases are given showing that hairs were identified as belonging to particular persons."

The results of scientific examination of the hair were considered along with the circumstances such as the discovery of the dead body, the buttons with bloodstains and the recovery of the scarf itself at the instance of the accused. If there are other circumstances pointing to the conclusion of guilt of the accused, the results of scientific examination of hair also can be of some use. Similar is the case in Maghar Singhs case 1975 (4) SCC 234 [LQ/SC/1975/164] wherein it is stated at page 237:

"6. The High Court has pointed out that there was sufficient circumstantial evidence, even apart from the extra judicial confession to connect the two accused with the murder of the deceased. There was the evidence of the recovery of the bloodstained clothes from Surjit Kaur, there is evidence of Sarwan Singh who had seen the . deceased along with Surjit Kaur and Maghar Singh shortly before the murder took place and immediately thereafter. The F.I.R. was lodged on June 15, 1972 at 9.00 a.m. the blood stained kirpan was also recovered at the instance of the accused Maghar Singh and the blood was found to be human blood. The matter did not rest here, but even bloodstained clothes were found from the person of the accused which also contained human blood. Apart from this circumstantial evidence which conclusively connects the two accused with the murder of the deceased, namely, recovery of the weapon of offence, the false explanation given by Surjit Kaur, the recovery of the clothes from the person of the accused, there is another important cirumstance which almost clinches the issue and completes the link in the chain of circumstantial evidence and this is that the kirpan recovered from the possession of the appellant Maghar Singh contained blades of hair of the deceased stuck to it and on scientific examination the blades were found to be identical with the hair of the decased. This, therefore, completely establishes that it was the accused Maghar Singh alone who had caused the death of the deceased with the kirpan and this circumstance is not explainable on any other hypothesis except that the accused was guilty of the offence of murder. Thus the circumstantial evidence against the accused referred to above is not only conclusive and independent to prove the charge for the offence of murder but also constitutes substantial and sufficient corroboration of the approvers statement in material particulars."

The circumstantial evidence was found to be conclusive against the accused and the result of scientific examination of the blades of hair found on the kirpan was taken as one of the circumstances along with other circumstances connecting the accused with the crime.

54. P.W. 37 at page 13 of his deposition has stated that in vast majority of cases it is not possible to fix the identify of the individual after examining the hair. The only peculiarity noticed by P.W. 37 is what he has stated at page 17 of his deposition which reads:

"I found a peculiarity in the medulla. 1 found oval fragments towards the tips, narrow and interrupted in the middle and totally absent towards the root."

This, according to the expert, is a peculiar formulation which he had not come across before and it is in that context that he gave the opinion that it is highly improbable that the three specimens of hair examined by him would have come from different individuals. He was not sure whether the brother, sister or any other blood relation of the individual will have the same type of hairs. P.W. 37 has admitted that he had used only instrumental method and that he had not adopted the micro chemical method. He has also admitted that he had not conducted the nutrone activation analysis referred to in the textbooks quoted above. In the light of the uncertainty of the method and in view of the imperfection of the science itself, it is unsafe to relay on Ext. P-47 to connect the accused with the offence in the light of the evidence of P.W. 37 referred to above. P.W. 1 in his deposition has stated that himself and Jolly used to go to the Bethany Asram for the purchase of milk. There is also evidence of P.W. 30 the Fr, Superior of the Asram, that women are not allowed inside the Asram, but they are allowed to sit in the guest house. Even if M.O. 25 hair taken from the northern room of the guest house is that of Jolly Mathew, it cannot be said that the presence of hair of the deceased cannot be explained in any other way.

55. The only other evidence to connect the 1st accused with the offence charged against him is the evidence of P.W. 21. He was examined to prove that on 23rd April 1984 at about 2.15 p.m. he saw a girl going to the Asram. When he casually turned back, he saw a priest sitting on the verandah of the guest house. He identified M.Os. 8 and 9 photographs as that of the girl whom he saw going into the Asram. He identified the 1st accused as the priest whom he saw sitting on the verandah of the guest house. P.W. .21 is not a resident of the locality. He came to his wifes house at Kuzhimattom about ten days prior to 23rd April 1984. He turned suddenly ill and was admitted in the Medical Trust Hospital, Kurichi. He was discharged from the hospital in the morning of 23rd April, 1984. His mother-in-law and sister-in-law were with him at the time of his discharge. All of them went to" the Mandiram. Junction on the M. G. Road to purchase a tonic prescribed by the doctor. Since the medical shop was found closed, he got into a bus and went to Chingavanam. He bought the tonic from a medical shop there. From there he decided to walk to his wifes house since he had no money to pay bus-fare. He walked from Chingavanam to Manickam Kavala. From there he turned towards the east and proceeded along the pathway to the house of his wife. As he was passing along the road in front of the Asram, he saw a girl going to the Asram. He saw also the 1st accused sitting on the verandah of the guest house. Then he went to his wifes house and returned on the same day to Kumarakam, his native place, with his wife and child. A week afterwards he went to Pallichal junction near his house to make some purchase. There he heard from other people that the dead body of a girl was found in a well. About a month afterwards his brother-in-law P.W. 23 came to his house at Kumarakam. Then he asked P.W. 23 about the dead body found in a well at Kurichi. P.W. 23 replied that the dead body was found not at Kurchi, but in a well close to his house. Then his wife asked P.W. 23 about the identity of the dead body. P.W. 23 thereupon mentioned the name and the house name of the deceased girl. His wife then told him that the dead body was of the girl with whom she had talked when herself and P.W. 21 were waiting for bus two or three months back. P.W. 23 further told him that the police had questioned several people and they were suspecting the priest in the Bethany Asram also. It was then that he revealed to P.W. 23 that he had on the afternoon of 23rd April saw a girl going into the Bethany Asram. After two days PW. 23 again came to his house and told him that the police was enquiring about him. Then he went along with P.W. 23 to the Police Club at Kottayam. He waited there till 10 p.m. By that time the police who had gone in search of him returned to the club. The police showed him the photograph of the girl while he was in the police club. After the 1st accused was arrested, the witness was again called to the police club. There he saw the 1st accused inside a room. In cross examination he stated that usually he used to go to his wifes house by bus. He happened to see the girl going to the Asram and the priest sitting at the veranda of the guest house only because on that particular day he had gone by walk. P. W. 21 admitted that he had no occasion to know anything about the members of the family of the missing girl including her father. It was only when his wife told him that he came to know that she was the girl whom they had met two or three months back while waiting for bus

56. The witness belongs to Kumarakam and the way to Kumarakam is via Kottayam town. There was no particular reason for him to go by bus to Chingavanam to buy medicine, return to his wifes house and go to Kumarakam on the same day. He knew that his father-in-law and brother-in-law were questioned by the police. It was his brother-in-law who took him to the police club. He was questioned by the police long after the incident. He admitted that when he was discharged from the Kurichi Hospital he was anxious to reach his home at Kumarakam as early as possible because his sister alone was there in his house. This witness was questioned and his statement was recorded only on 31st May 1984. He had no particular reason to remember having seen the girl going to the Asram but for his wife mentioning that it was the same girl whom they had met while they were waiting for bus. P.W. 21 did not know the girl or any other member of her family. The identification of the photographs M.Os. 8 and 9 by P.W. 21 is of no consequence as the witness admits that he was already shown the photograph from the police club at Kottayam. We find it difficult to believe the evidence of P.W. 21 that he casually saw a girl going to the Asram and he could identify the girl with reference to her photograph. He could have purchased the tonic from Kottayam on his way to Kumarakam. There is no apparent reason why he went up to Chingavanam to purchase the tonic and returned to his wifes house by foot along the road for want of money to pay bus fare. He bad on the same day gone to his house at Kumarakam with his wife and child. The evidence of P.W. 21 that he saw the girl going to the Asram and a priest sitting on the verandah of the guest house appears to us too artificial and difficult to believe. Even if the evidence of P.W. 21 is believed, it will not connect the 1st accused with the crime. P.W. 21 has not seen the girl going to the guest house where the 1st accused was sitting. The 1st accused was not the only person present in the Asram. According to the evidence in the case, 4 priests and 4 Sadhus were the permanent residents of the Asram at the relevant period of time. There was a construction work going on and, according to P.W. 22, the 3rd accused who was supervising the construction work was seen dismantling the wooden framework for the concrete work at about 1-30 p.m. on 23rd April i 984. P.W. 22 had deposed that the construction work had been stopped for the Easter that fell on 22nd April 1984; but the work was resumed the next day (23rd April 1984). P.W. 22 was one of the workers engaged in the construction work. P.Ws. 31 and 32, two of the inmates of the Asram, were absent on 23rd April 1984. But there is nothing on record to show that the other inmates including the four Sadhus were absent on that day. Merely for the reason that the girl Jolly Mathew was seen going to the Asram, it is not possible to infer that the 1st accused had caused her death in the northern room of the guest house of the Asram. The evidence in the case discussed above is grossly insufficient to convict the 1st accused for the offence charged against him. The prosecution has failed to prove the guilt of the 1st accused beyond reasonable doubts. The 1st accused is entitled to the benefit of doubt.

57. Accused 2 and 3 are charged for offences under S.201, 404 and 120-B I.P.C. The charges under S.201 and 120-B I.P.C. cannot stand in the light of our finding that the prosecution has failed to prove the 1st accused guilty of the offences charged against him. The 2nd accused was arrested on 20th June 1984 by P.W. 68. He made a confessional statement Ext. P-85 to P.W. 68 that the gold chain that Jolly was wearing at the time of her death was kept in his house. He was taken to his house in a jeep. The 2nd accused took out M.O. 1 chain from inside a pillow on a cot in his room. Ext. P-10 is the mahazar under which M.O. 1 was recovered. The mahazar is attested by P.W. 47 and another witness. P.Ws. 1, 6 and 11 have identified M.O. 1 as the chain that the deceased was wearing at the time of her. disappearance. The 3rd accused was also arrested on 20th June 1984 by P.W. 69 from the bus-stand

at Changanacherry. He gave a confessional statement Ext. P-9,4 to P.W. 69 that the gold rings had been concealed in his house and that he was willing to take them out. P.W. 69 took him to his house at Thukalassery in Thiruvalla. The 3rd accused took a key from the roof of his house and opening an old box took out a packet containing M.O. 2 rings. M.O. 2 was recovered as per Ext. P-68 mahazar attested by P.W. 66 and another witness, M.O. 2 is identified by P.Ws. 1, 6 and 11 as the ear-rings that the deceased Jolly Mathew was wearing on 23rd April 1984.

58. Counsel for accused 2 and 3 relies on the evidence of D.W. 5 and submits that accused 2 ana 3 were actually arrested on 3rd June 1984 and their statements Ext. P-85 and Ext. P-94 cannot be accepted as voluntary statements made to the investigating officers. D.W. 5 was cited as C.W. 63 to be examined as a witness for the prosecution. The prosecution had given him up for the reason that he Was not supporting the prosecution. It is in that context that the defence has examined him as D.W. 5. In the light of the decision of the Supreme Court in Ahar Raja Khima v. State of Saurashtra AIR 1956 SC 217 [LQ/SC/1955/120] , State of Kerala v. M. M. Mathew and another 1978 (4) SCC 65 [LQ/SC/1978/208] and State of U.P. v. Krishna Gopal and another 1988 (4) SCC 302 [LQ/SC/1988/397] referred to supra we have no reason to disbelieve the evidence of the investigating officers that accused 2 and 3 were arrested only on 20th June 1984 and the statements Exts. P-85 and P-94 were recorded immediately after the arrest. We disbelieve D.W. 5 and hold that accused 2 and 3 were arrested on 20th June 1984 and M.Os. 1 and 2 were recovered in pursuance to their statements Exts. P-85 and P-94. The recovery of the gold chain and the earrings is a direct consequence of the statements made by these accused. Those statements are admissible in evidence under S.27 of the Evidence Act. The evidence of P.W. 29 that he saw accused 2 and 3 at about 3-30 a.m. on 24th April 1984 standing on the public road in front of the bunk shop of one Kesavan is not sufficient to prove the offence charged against the accused under S.201 I.P.C. The prosecution case is that accused 2 and 3 caused the disappearance of the dead body at the behest of the 1st accused. Since the case against the 1st accused has not been proved beyond reasonable doubt, the charges against accused 2. and 3 under S.201 and 120-B I.P.C. are also not proved, . .

59. Even though there is proof of the recovery of MO. 1 gold chain from the 2nd accused and M.O. 2 earrings from the 3rd accused on the basis of their respective statements Exts. P-85 and Ext. P-94, we are not satisfied that an offence under S.404 I.P.C. is made out against these accused beyond all. reasonable doubt. We have already held that the prosecution case that the 1st accused committed murder of Jolly Mathew, and accused 2 and 3 at his behest caused the disappearance of evidence relating to the murder by disposing of the dead body is not proved in this case. The genesis of the offence under S.404 I.P.C. charged against accused 2 and 3 is an offence under S.201 I.P.C., and that offence has not been proved. We find it difficult to accept the evidence of P.W. 29 that he saw accused 2 and 3 at 3-30 a.m. on 24th April 1984 in front of Kesavans shop. Even if his evidence is accepted, that will not prove the offence under S.201 I.P.C. charged against accused 2 and 3. Nor does the recovery of M.Os. 1 and 2 by itself prove the offence under S.404 I.P.C. An essential ingredient of the offence under S.404 I.P.C. is the knowledge of the accused that the property misappropriated was in the possession of the deceased at the time of her death. In the absence of proof as to such knowledge, the mere recovery of M.Os. 1 and 2 is not sufficient to bring out an offence under S.404 I.P.C. against accused 2 and 3. We therefore hold that the charge against accused 2 and 3 for the offence under S.404 I.P.C. is also not proved beyond reasonable doubt.

60. For the aforesaid reasons we set aside the conviction and sentence of all the accused and acquit them of the charges framed against them. The 1st accused will be set at liberty forthwith. The bail bond executed by accused 2 and 3 will be cancelled.

Both the criminal appeals are allowed.