Kerala High Court
Satheeshkumar vs State Of Kerala on 20 March, 2010
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY,THE 25TH DAYOF SEPTEMBER 2017/3RD ASWINA, 1939
CRL.A.No. 911 of 2010
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AGAINST THE JUDGMENT IN SC 1866/2006 ON THE FILE OF THE ADDL. SESSIONS
JUDGE (FAST TRACK COURT No.1) TRIVANDRUM, DATED 20-03-2010
APPELLANT/ACCUSED: -
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SATHEESHKUMAR,
S/o GOPALAN,
HOUSE NO.CP/XVII-419,
CHONAKUMARI,
NOCHIYOOR DESOM,
CHENKAL VILLAGE.
BY ADVS.SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.M.VIVEK
SRI.A.RAJESH
RESPONDENT/COMPLAINANT & STATE: -
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STATE OF KERALA,
REPRESENTING CIRCLE INSPECTOR OF POLICE,
PARASSALAPOLICE STATION,
THIRUVANANTHAPURAM,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SR. PUBLIC PROSECUTOR SRI. S.U. NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLYHEARD ON 13.09.2017.
THE COURT ON 25.09.2017 DELIVERED THE FOLLOWING:
DMR/-
A.M.SHAFFIQUE &
P. SOMARAJAN, JJ.
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Crl. Appeal No.911 of 2010
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Dated this the 25th day of September, 2017
J U D G M E N T
P. Somarajan, J.
This appeal is against the conviction and sentence imposed by the judgment dated 20.03.2010 in S.C.No.1866/2006 of the Additional Sessions Judge (Fast Track Court No.I), Thiruvananthapuram, by the accused.
2. The offence alleged against the accused is under Section 302 IPC on account of the death of one Subashkumar due to the injuries alleged to have been sustained by him at about 4.00 p.m on 21.07.2004 by the user of MO1 chopper in the hands of the accused. Though he was immediately shifted to the Medical College Hospital, Thiruvananthapuram, he succumbed to the injuries by 6.25 p.m. on the same day.
3. The alleged incident took place at a river bank at Chettalikadavu at Elamthottam at Machoor Desom of Chenkal Village. The prosecution examined PWs 1-16 and got marked Exhibits P1-P21 and identified MOs 1-8. The learned Sessions Judge found the accused guilty of the offence punishable under Crl. Appeal No.911 of 2010 2 Section 302 IPC and convicted him thereunder and sentenced to undergo imprisonment for life and to pay a fine of Rs.3,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for three years more with a direction to pay the fine amount, if realized, to the legal heirs of the deceased as compensation under Section 357(1)(b) Cr.P.C., by its judgment dated 20.03.2010. From the side of the accused, DW1 was examined and Exhibits D1 to D6 were marked. PWs 1 and 2 are the occurrence witnesses. PW2 turned hostile to the prosecution.
4. The learned Sessions Judge mainly relied on the oral evidence tendered by PW1, one of the occurrence witnesses, the dying declaration alleged to have been given by the deceased to his brother, PW5, and also the recovery of MO1 chopper used for inflicting the injuries based on the disclosure statement exhibited as Exhibit P6(a).
5. It is argued by the learned Senior Counsel appearing for the appellant that the investigation is highly faulty as the ownership of the two sets of blood stained chappels recovered from the place of occurrence still remains in darkness and no enquiry or investigation was conducted regarding those Crl. Appeal No.911 of 2010 3 chappels or its ownership or to whom it belongs. It was submitted that it causes considerable doubt on the prosecution case as the injuries inflicted on the deceased comes to 25 in numbers and that it would prima facie show the involvement of more than one person or group of persons. No explanation was forwarded regarding the cause of ante-mortem injury Nos.1 and 2 and no investigation was conducted in that behalf. The real cause of death was not revealed by the prosecution, either through oral or documentary evidence. It was inter alia contended that no reliance can be placed on PW1 as he is a person having criminal background. PW1 is not a probable witness and his alleged presence in the place of occurrence is under shadow of doubt. Recovery of MO1 chopper is vitiated as it was recovered from the place of occurrence and it cannot be brought under Section 27 of the Indian Evidence Act. The identity of weapon used is also under shadow of doubt as the blood stain found in MO1 chopper is 'B' positive, where, the blood group of deceased is 'O' positive. As per the seizure mahazar, MO1 chopper is having a handle made up of horn, instead of wooden handle. No reliance can be placed on the dying declaration alleged to have been given by the victim to Crl. Appeal No.911 of 2010 4 his brother, PW5, which was not revealed before the investigation at the first instance. It was contended that the injuries noted in the wound certificate are lacerated wounds and it cannot be produced by using a sharp edged weapon like MO1 chopper.
6. The injuries which were noted in the post mortem examination report are the following:
"1. Contusion 3.2 x 2.5 x 0.3 cm on the right side of head, 2.5 cm above top of ear.
2. Contusion 1.5 x 1.5 x 0.3 cm, on the right side of head, 9 cm above top of ear.
3. Incised wound 2.5 x 0.3 x 0.3 cm on the front, outer aspect and back of right ear lobe, oblique, its lower front end, 3.3 cm above the tip of ear lobule.
4. Abrasion 3.5 x 0.5 cm, horizontal, on the left side of back of neck, its inner end in mid line and 3.5 cm above the root of neck.
Flap dissection of neck was done and the neck structures were found to be normal and intact.
5. Incised wound 10 x 2.5 x 2.5 cm, oblique, on the top and back of left shoulder, its front outer end Crl. Appeal No.911 of 2010 5 6cm outer to the root of neck. Underneath the upper end of humerus seen cleanly cut for a depth of 0.4cm.
6. Incised wound 7.5 x 6.5 x 3.5 cm, oblique, on the front of right arm and elbow, its lower inner end 2 cm outer to the inner border of elbow. Underneath the soft tissues, blood-vessels and nerves were seen cleanly cut.
7. Incised wound 2.5 x 1 cm, skin deep on the outer aspect of right elbow oblique 0.2 cm below and parallel to the lower margin of injury No.6 and in connection with it. (showed a tailing 1.2 cm long extending outwards and upwards.)
8. Superficial incised wound 4.5 x 0.2 cm, oblique, on the back of right forearm, its lower outer end 20 cm above wrist.
9. Incised wound 4.2 x 3 x 2 cm, oblique, on the back of right forearm, its lower inner end, 16.7 cm above wrist in the inner margin.
10. Incised wound 7 x 1.5 x 0.7 cm, oblique, on the back of right forearm, its lower inner end, 3.5 cm above wrist, showing a tailing 5.2 cm long, extending upwards and outwards from its upper end.
Crl. Appeal No.911 of 2010 6
11. Incised wound 4.7 x 1.5 x 2.5 cm, oblique with bevelling of upper margin on the back of right wrist and hand, its lower outer end 1 cm below wrist and 1 cm inner to the outer border.
12. Incised wound 8 x 2.5 x 1 cm, on the back of left elbow and adjacent part of forearm, oblique, its lower outer end 1 cm inner to outer margin of forearm and 3 cm below elbow. Underneath the upper ends of radius and ulna were seen cleanly cut for a depth of 0.5 cm with fragmentation of proximal ends.
13. Two superficial incised wounds 2 x 0.3 cm and 2 x 0.2 cm on the front of left forearm, oblique, parallel and one above the other and 0.5 cm apart, the upper one being 2.5 cm below elbow.
14. Incised wound 3.2 x 1.5 x 1 cm, on the outer aspect of right hip, oblique, its upper outer end, 12.5 cm below the top of hip bone. The wound showed a tailing 3.5 cm long extending downwards and inwards.
15. Incised wound 11.2 x 4.5 x 1.5 cm on the front of right thigh, knee and leg, vertical, its upper end, 4 cm above knee. Underneath the lower end of Crl. Appeal No.911 of 2010 7 outer aspect of femur and outer aspect of patella were seen cleanly cut for a depth of 0.4cm.
16. Incised wound 11 x 3 x 2 cm, oblique, on the front of right leg, its upper inner end, 13.5 cm below knee. Tibia underneath was cleanly cut for a depth of 1 cm with fragmentation of the lower end.
17. Incised wound 4 x 1 x 0.5 cm, oblique, on the front of right leg, its upper inner end 23 cm below knee. Underneath the tibia was seen cleanly cut for a depth of 0.5 cm with fragmentation of the lower end.
18. Incised wound 1.5 x 0.5 x 0.5 cm on the back of right knee.
19. Incised wound 9.2 x 3.5 x 3.5 cm, on the back and sides of right leg, horizontal 3.5 cm above heel. Underneath the soft tissues, tendons, blood vessels & lower ends of tibia and fibula were seen cleanly cut for a depth of 1 cm with fragmentation of the edges.
20. Incised wound 6 x 1.3 x 4.2 cm, oblique, on the front of left thigh its lower inner end 19.5 cm above knee.
Crl. Appeal No.911 of 2010 8
21. Incised wound 6.5 x 1.5 x 2.5 cm 'y' shaped on the front of left leg, its upper end, 12 cm below knee.
22. Incised wound 12.5 x 5 x 3 cm, on the front of left leg, oblique, its upper inner end, 24 cm above heel. Underneath tibia for a depth of 1.2 cm and whole thickness of fibula were seen cleanly cut with fragmentation of tibial ends.
23. Incised wound 13 x 3.5 x 3 cm, on the back of left leg, oblique, its lower outer end, 13 cm below knee with a tailing 5 cm long extending downwards and outwards.
24. Fracture of right edge of sternum 1 x 0.5 x 0.3, between the 3rd and 4th cortal cartilages (with minimal infiltration of blood around).
25. Incised wound 4.5 x 2 x 2.5 cm, on the left side of back of trunk, horizontal, its inner end 14 cm below shoulder and 14.5 cm outer to midline."
7. Among the 25 injuries, injury No.1 and 2 are only contusions on the right side of head and top of the ear. All other injuries, except injury No.4 which is an abrasion and injury No.24 which is a fracture of right edge of sternum, are Crl. Appeal No.911 of 2010 9 incised wounds. The Doctor who conducted the post-mortem examination on the body of the deceased had admitted that injury Nos.3 to 25, except injury No.4 and 24, are the result of independent blows, based on which it was argued that the probability and possibility would indicate the involvement of more than one person and use of several weapons rather than the involvement of accused and user of MO1 chopper.
8. It was submitted that the oral evidence tendered by PW1 cannot be relied on as he is a person engaged in several criminal activities and criminal cases were registered against him in connection with the sale of illicit arrack. During his examination, PW1 had admitted that he had undergone judicial remand in connection with a criminal case on the allegation of sale of arrack.
9. Though PW1 had undergone a lengthy cross examination extending to several pages, nothing was brought out to discredit his oral evidence. Even no enmity, hostility or ill-will, either against the accused or otherwise, was brought out during his cross-examination and no specific incident of enmity or hostility either put up or brought out at the time of cross-examination. On the other hand, his presence in the Crl. Appeal No.911 of 2010 10 place of occurrence is natural and probable as he came to the said river bank to take a bath. He had seen the incident while he was returning from the bathing ghat and the occurrence place is the river bank near to the said bathing ghat. His evidence gives a vivid picture of what actually transpired there and what he had seen. He noticed the accused and the victim on hearing a screaming from the victim. At that time, he was just 50ft away from the place of occurrence. Admittedly, he had not seen the first attack on the victim by using MO1 chopper. On hearing the screaming, he proceeded to the place of occurrence and he had seen the subsequent attack made on the body of the deceased by the accused using the chopper. He had also spoken about the place where the injuries were inflicted and, according to him, all the injuries were on the upper limb and lower limb of the deceased.
10. The mere fact that PW1 was an accused in one or two criminal cases is not sufficient to discard his oral testimony, if it was otherwise found to be reliable. The presence of PW1 in the place of occurrence was also spoken by PW5. He had accompanied the injured to the hospital in a motor car. Even no suggestion was put up by raising any Crl. Appeal No.911 of 2010 11 particular incident to show any enmity or hostility towards the accused during the cross-examination of PW1. On the other hand, the version given by PW1 was found to be not tainted by any ill-will, hostility or ill motive. The version given by PW1 supports the main substratum of the prosecution case in all respects. Even the defence did not have any case that the accused was not present in the place of occurrence at the time of the alleged incident. But, on the other hand, a suggestion was put up during cross-examination of PW1 admitting the presence of the accused at the place of occurrence. He had also identified MO1 chopper which was used for inflicting the injuries. The contradictions which were marked during his cross-examination as D1 and D1(a) are only minor discrepancies with respect to the nature of injuries alleged to have been sustained by the injured and its resultant effect on the body of the victim. The fact that PW2 turned hostile to the prosecution will not, in any way, take away the untainted testimony of PW1.
11. On coming into the recovery of MO1 chopper, the prosecution has to establish that it was recovered and detected on the basis of the disclosure statement given by the accused Crl. Appeal No.911 of 2010 12 while in custody. In order to bring a detection within the sweep of Section 27 of the Indian Evidence Act, the incriminating object, which was detected, should not be otherwise within the reach of investigation. No case was advanced that it was lying concealed or kept in a place which is known to the accused alone. On the other hand, it was recovered from the place of occurrence. If that be so, it could be possible for the investigating officer to detect and recover the chopper from the place of occurrence by conducting a search in and around the place of occurrence or in the near vicinity. No such search was conducted by the investigation. But, he took the accused to the place of occurrence so as to have a recovery of MO1 chopper from there under the guise of a disclosure statement. The prosecution did not have any case that it was lying concealed or it was kept in a place which is known to the accused alone. The recovery of an incriminating object, which is within the reach of investigation, in the ordinary course of investigation, otherwise than through the accused, cannot be brought under the purview of Section 27 of the Indian Evidence Act and what is relevant is the detection of an incriminating fact/object based on the disclosure statement. Crl. Appeal No.911 of 2010 13 Hence, the alleged recovery of MO1 chopper would not come under the purview of Section 27 of the Indian Evidence Act and it will not give any assistance to the prosecution case. Further, the alleged recovery of MO1 chopper stood as vitiated as the recovery was effected not from the place disclosed by the accused under Exhibit P6(a) disclosure statement. What is disclosed in Exhibit P6(a) is that the chopper was thrown away in a shrubby area at Elamthottam near the river bank. But, it was recovered from the place of occurrence, viz. Chettalikadavu.
12. An attempt was made by the accused disputing the nature of the MO1 weapon used for inflicting the injuries based on the material used for making its handle and, according to the accused, what is produced as MO1 is a chopper having wooden handle. But, in the seizure mahazar it was stated as chopper having horn-made handle. The above said argument has no much relevance as the MO1 weapon was identified by PW1 and no question and even no suggestion was put up during his cross-examination regarding the nature of handle/material used for making the handle of the chopper and no challenge was raised in reference to MO1 weapon as to the Crl. Appeal No.911 of 2010 14 material used for preparing its handle and hence we could not find any merit in the above said argument.
13. The blood sample taken from the body of the deceased was subjected to chemical analysis and a certificate was issued exhibited as Exhibit P13. In the certificate the blood group of the deceased is stated as 'B Positive'. It is only a mistake and the actual blood group is 'O positive' and for that purpose the prosecution has examined PW10 and produced the examination of file prepared in the handwriting of the examiner PW10. She had admitted the mistake crept in the document at the time of preparation of a typewritten certificate. MO1 chopper found to be stained by human blood, which is well evident from Exhibit P15 FSL report wherein item No.3 is the MO1 chopper. Human blood belonging to 'O group' was detected in MO1 chopper. But, the Rh-Factor of the blood not seen detected in Exhibit P15 FSL report. But, presence of 'O group' blood stain in MO1 chopper would give sufficient corroboration to the oral evidence tendered by PW1 and his identification of MO1 chopper as the weapon used for inflicting injuries to the victim.
Crl. Appeal No.911 of 2010 15
14. Regarding the dying declaration alleged to have been given by the deceased to PW5, his brother, on his way to the hospital, it cannot be relied on, firstly on the reason that it was not heard by PW1, who was accompanying the deceased in the very same car, and the version given by PW1 is that it was not audible to him and that he could hear only some murmuring. Secondly, it is admitted by PW5 that he had not given such a statement to the police at the first instance. The wound certificate drawn by PW9 Doctor, exhibited as P12, and his oral testimony would clearly reveal that there was no disclosure of the name of accused before PW9 Doctor either by the victim or by the person who brought the victim. If there was any such disclosure made by the victim to PW5 during the course of journey to the hospital, definitely it would have disclosed before the Doctor, PW9, who attended the victim at first. PW9 in clear terms deposed that no such disclosure was made before him either by the injured or by the person who brought the injured to the hospital. This would cause a reasonable suspicion as to the genuineness of the dying declaration alleged to have been made by the victim before PW5, who is none else his brother. The other persons who accompanied the Crl. Appeal No.911 of 2010 16 injured by name Ravi and Kumaran were not examined by the prosecution. Even according to PW5, Ravi, who accompanied the injured to the hospital, seated on the back seat of the car and PW1 seated on the front seat. If that be so, when any such declaration was made by the deceased before PW5, it is probable to hear the same by Ravi also, who was on the back seat of the said car. He was not examined by the prosecution. During cross-examination, PW5, at first denied his statement regarding the presence of Kumaran, the brother of accused, who accompanied the victim to the hospital in the same car. But, on further cross-examination, he admitted that he had given such a statement to the police. All these would make the oral evidence of PW5 as not reliable and hence it would not help the prosecution.
15. It was also brought to our notice that injury Nos.1 and 2 are two contusions reported on the head of the deceased and that no explanation was offered by the prosecution how the victim had sustained those two contusions. It was also brought to our notice that neither PW1 nor any other witness examined by the prosecution or gives any explanation how those injuries were sustained by the victim and whether the Crl. Appeal No.911 of 2010 17 same were sustained during the course of incident or otherwise. Nothing was whispered even by PW1, who claimed to be the eye witness to the alleged incident. The two contusions reported on the head of the deceased might have happened during the course of a fall on the ground after sustaining the injuries or during the course of moving the injured to the hospital in a motor car. It is true that no explanation was either offered or let in evidence by the prosecution regarding the origin of these two injuries. But, the same is not fatal to the prosecution, especially when they are only two contusions reported on the head of the deceased and it may be possible for receiving such a contusion either during the course of the alleged incident or on a fall on the ground by the victim after sustaining the injuries or during the course of removal of the injured to the hospital in a motor car and this will not discredit or take away the oral testimony given by PW1, the occurrence witness, which fully and completely supports the main substratum of the prosecution case in all respects.
16. As discussed in earlier paragraphs, the untainted testimony of PW1, one of the eye witnesses, cannot be Crl. Appeal No.911 of 2010 18 discarded unless there is sufficient ground for the same. No sufficient ground was brought to our notice and nothing was brought out during the lengthy cross-examination so as to discredit his oral evidence. On the other hand, his testimony was found to be reliable touching every aspect from the moment he had seen the occurrence till the victim was brought to the hospital in a motor car and he had given a vivid picture of what has actually happened on the ill fated day. He had also identified MO1 chopper used for inflicting injuries to the victim by the accused. His version is so consistent and found to be unassailable, though Exhibits D1 and D1(a) contradictions were brought out during cross examination, which are only minor discrepancies with respect to the effect of injuries sustained on the body of the injured through MO1 chopper in the hands of accused, which cannot be, in the normal course, assessed with its specification. It is settled that if the prosecution wants to prove charge of murder by a single direct evidence, the witness must be wholly reliable. However, minor discrepancies do not render the evidence unreliable. [see :
Jayaram Shiva Tagore & Ors. v. State of Maharashtra AIR 1991 SC 1735 and also Vahula Bhushan alias Vehuna Crl. Appeal No.911 of 2010 19 Krishnan v. State of Tamil Nadu AIR 1989 SC 236]. It is also brought out that he is an accused in a crime registered for the sale of illicit arrack. But, this cannot be a ground to discard his oral evidence once it was found to be truthful and acceptable. In Manilal Hiraman Chaudhari v. State of Maharashtra AIR 2008 SC 161 it was held by the Apex Court that even in a case of enmity of witness towards the accused persons and that he had filed a complaint against the accused that they attempted to kill him by itself is not a valid ground to discredit the said witness who was otherwise trustworthy. In State of Maharashtra v. Tulshiram Bhanudas Kamble and Ors. AIR 2007 SC 3042 the same view was reiterated. It was followed in Mallanna and Ors. v. State of Karnataka (2007) 8 SCC 523, wherein the eye witness is a close relative of deceased. What is material and what would be relevant is the truthfulness of the statement made by such a witness and his consistency from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. He had been subjected to a lengthy cross examination, but nothing was brought out either to discredit or deviate the sequence of events spoken by him, Crl. Appeal No.911 of 2010 20 the factum of occurrence, the persons involved, the place wherein it has happened and the manner in which the victim was brought to the hospital.
17. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The legal system had laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. (see: Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; Jose v. The State of Kerala AIR 1973 SC 944; Balraj Sing v. State of Punjab 1976 Cr.LJ 1471; Badri v. State of Rajasthan AIR 1976 SC 560; State of U.P. v. Hakim Singh & Ors. AIR 1980 SC 184 = (1980) 3 SCC 55; Jagdish Prasad v. State of M.P. AIR 1994 SC 1251 : (1994 Crl. Appeal No.911 of 2010 21 AIR SCW 564); Sunil Kumar v. State Govt. of NCT of Delhi AIR 2004 SC 552 : (2003 AIR SCW 6026); Namdeo v. State of Mahasrashtra AIR 2007 SC (Supp) 100 : (2007 AIR SCW 1835); Kuju Alias Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381 : (2008 AIR SCW 835); Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638 : (2010 AIR SCW 4470); Mahesh and Anr. v. State of Madhya Pradesh (2011) 9 SCC 626 : (AIR 2012 SC 2172 : 2012 AIR SCW 2898); Kishan Chand v. State of Haryana JT 2013 (1) SC 222) : (AIR 2013 SC 357 : 2013 AIR SCW 210), and R.Shaji v. State of Kerala AIR 2013 SC 651.
18. The version given by PW1 stood as supported by the medical evidence and gives sufficient corroboration. Though an attempt was made, based on Exhibit P12 Wound Certificate, that lacerated wounds alone were reported in Exhibit P12 wound certificate and that it would not be possible to inflict those lacerated wounds by using a sharp edged weapon like MO1 chopper, we are not in a position to accept the same because of the reason that, what is stated in the wound certificate is only a preliminary clinical analysis of the outward appearance of injuries. Ante-Mortem injuries 1-25 would Crl. Appeal No.911 of 2010 22 clearly reveal the nature of injuries sustained. Except injury Nos.1, 2, 4 and 24, all other injuries are incised wounds and the Doctor who conducted autopsy on the body had given evidence stating that all these injuries are possible by the user of a sharp edged weapon like MO1 chopper. In short, the medical evidence supports the oral testimony of PW1 and gives sufficient corroboration. As discussed earlier, the untainted testimony of PW1, who is an eye witness to the occurrence, stood as corroborated by medical evidence and can be safely acted upon.
19. It is true that no investigation was conducted regarding the two sets of blood stained chappels found in the place of occurrence and neither any evidence was adduced, nor any explanation was forwarded by the prosecution regarding the source of the above said chappels as to whom it belongs. But it is not material in the present case as the oral testimony of one of the occurrence witnesses is found to be trustworthy and reliable and it gives a vivid picture of what actually happened there, the number of persons came to the place just after the incident and removal of the victim to the hospital, which stood as corroborated by the presence of human blood Crl. Appeal No.911 of 2010 23 stain of same group of the victim in MO1 chopper, identified by PW1 and further takes corroboration from the medical evidence adduced.
20. The actual cause of death is neither disclosed in Exhibit P9 postmortem certificate, nor spoken by PW7 Doctor during her examination. In fact, no opinion as to the cause of death was brought out by the prosecution either through Exhibit P9 postmortem examination report or through PW7 Doctor, who conducted autopsy on the body of the deceased. The expert opinion as to the cause of death was not brought out by the prosecution and it would be sometimes fatal to the prosecution case. But, here, in this case, the incised wounds, 21 in numbers, sustained by the victim both in the upper limb and lower limb, which are extensive in nature, would sufficiently show the real cause of death. It may be due to the heavy bleeding resulting in cardiac arrest or due to the injury or trauma caused thereby. In the absence of any other cause, especially when the victim had sustained extensive incised wounds, 21 in numbers, at various places, it would be safe for drawing an inference that the death was due to the injuries sustained by the victim. The user of a sharp edged weapon Crl. Appeal No.911 of 2010 24 like MO1 chopper, extensive nature of incised wounds, 21 independent blows by using MO1 chopper would clearly reveal the ingredients which constitute the intentional act on the part of the accused to commit murder and hence we could not find any reason for interference to the finding of guilt of the accused under Section 302 IPC and the conviction thereunder.
The sentence awarded reflects a proper striking of balance between the mitigating and aggravating circumstances and hence the appeal fails, deserves only dismissal and we do so.
A.M.SHAFFIQUE (JUDGE) P. SOMARAJAN (JUDGE) DMR/-