Kerala High Court
Subhash @ Ansari vs State Of Kerala on 25 August, 2020
Author: M.R.Anitha
Bench: A.Hariprasad, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
CRL.A.No.1134 OF 2016
AGAINST THE ORDER/JUDGMENT IN SC 115/2014 DATED 06-05-2016 OF
ADDITIONAL SESSIONS COURT, PALA
AGAINST THE ORDER/JUDGMENT IN CP 2/2014 OF JUDICIAL MAGISTRATE
OF FIRST CLASS,ERATTUPETTA
CRIME NO.1241/2013 OF Erattupetta Police Station, Kottayam
APPELLANT/ACCUSED:
SUBHASH @ ANSARI
AGED 25 YEARS
S/O.THANKAPPAN, KADAPUZHAYIL (H), MLAKKUZHI COLONY
BHAGOM, TEEKOY KARA, TEEKOY VILLAGE.
BY ADVS.
SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY DIRECTOR OF PUBLIC PROSECUTION, HIGH
COURT OF KERALA, ERNAKULAM - 682 031.
BY SMT. SYLAJA S.L., SPECIAL PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24-07-2020, THE COURT ON 25-08-2020 DELIVERED THE FOLLOWING:
Crl.A.No.1134 of 2016 2
"CR"
JUDGMENT
Dated this the day of 25th August, 2020 M.R.Anitha, J.
1. This appeal has been filed against the conviction and sentence passed against the appellant/accused in S.C.115/2014 by the Additional Sessions Judge, Pala.
2. The prosecution case in short is that the deceased, a widow, got acquaintance with the accused while working in a rubber factory at Thikkody grama panchayat. It developed into an intimacy and he used to visit house No.IV/122 of Thikkody panchayat, of the deceased. For having easy going to the house of the deceased, the accused took shed No.IV/159 owned by PW19 in Thikkody panchayat on lease. Thereafter accused wanted to marry the deceased who was not prepared for the same. There used to have quarrel with respect to that in between them. The deceased had been living in her house with her 12 years old daughter, PW2. While so, on 14.11.2013, the accused slept in the house of Crl.A.No.1134 of 2016 3 the deceased and had altercation with the deceased with respect to their marriage and did not left the house in the morning as usual. At about 1.00 pm on 15.11.2013, the accused trespassed into the middle bedroom of the deceased and there was an altercation between them which resulted in a push and pull. He caught hold of the tuft of her hair and dragged her to the northern courtyard and stabbed her with MO1 knife concealed in his loin. There upon the deceased fell near the drain situated on the northern side of her house. He stabbed at her abdomen and chest repeatedly and caused fatal injuries and thereby committed her murder.
3. At about 1.40 hours accused surrendered at Erattupetta police station with MO1 blood stained knife and confessed to have caused the death of the deceased. Based on the same, PW1, the then sub inspector of police, Erattupetta, registered Ext.P1 FIR. Thereafter he arrested the accused at 2.05 pm and prepared Ext.P2 arrest memo and seized MO1 by describing in Ext.P5 seizure mahazar. PW20 Inspector of police, Erattupetta, conducted the investigation and completed the same and filed the charge-sheet against Crl.A.No.1134 of 2016 4 the accused under Secs 449 and 302 IPC.
4. PW1 to 20 were examined, Exts.P1 to P27 were marked and MO1 to 7 were identified and marked from the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Sec.313 Cr.P.C. He denied all the incriminating facts and circumstances put to him and filed additional statement under Sec.313(5) Cr.P.C contending that he was in love with the deceased from 2011 onwards and converted to Islam. Thereafter from 2012 onwards, he had been residing at her house as husband and wife. On the date of incident, he went for mason work and at about 12.30 pm, on getting information about the death of the wife he went to Erattupetta police station for filing complaint. But he was falsely implicated in this case. There was no defence evidence. On hearing both sides, the court below found the accused/appellant guilty under Sec.449 and 302 IPC and sentenced him to undergo rigorous imprisonment for six years for the offence under Sec.449 IPC, imprisonment for life under Sec.302 IPC and to pay fine of Rs.2,00,000/- under Sec.302 IPC. Half of the fine amount, if realized, is directed to be given to PW2 as Crl.A.No.1134 of 2016 5 compensation. Sentences were directed to run concurrently. Aggrieved by the conviction and sentence, the appellant came up in appeal for the various grounds stated in the memorandum of appeal.
5. Notice was issued to the respondent and the learned senior public prosecutor appeared on behalf of the respondent/State. Lower Court Records were called for and perused. Both sides were heard. The learned counsel for the appellant/accused later filed argument note. (Appellant would hereinafter be referred as the accused).
6. The learned counsel for the accused assailed the conviction and sentence on various grounds. According to him, though the motive alleged is the refusal of the deceased to marry the accused, it has come out in evidence that the marriage of the deceased and the accused had already taken place. So the motive alleged is falsified by the evidence adduced from the side of prosecution itself. Further he contended that PW2 the child, who is the sole eye witness, is none other than the daughter of the deceased and is a tutored witness. He would also contend that the witness in Ext.P5 Crl.A.No.1134 of 2016 6 seizure mahazar for seizing MO1 knife and Ext.P19 the seizure mahazar for seizing the shirt alleged to have been worn by the deceased while surrendering before the police station, were not examined. Hence both Exts.P5 and P19 cannot be relied upon to prove the alleged seizure of MO1 knife and MO2 shirt. Further he would contend that scientific evidence is also not conclusive to point the connection of the items examined with the accused and hence according to him, the court below has entered into a conviction without properly appreciating the facts and circumstances and the evidence adduced in a correct perspective and therefore, requires an interference at the instance of this Court.
7. The learned public prosecutor on the other hand would contend that PW2, a child witness though subjected to lengthy cross-examination, nothing could be brought out to discredit her evidence. Coupled with that, there is evidence of the other witnesses in corroboration with that of PW2. Scientific evidence also adduced connecting the accused with the offence.
Crl.A.No.1134 of 2016 7
8. The fact that the death of the deceased was a homicide is not seen disputed. The evidence of PW16, the associate professor, medical college hospital Kottayam who conducted postmortem on the body of the deceased on 16.11.2013 at 10.00 am and Ext.P14 postmortem certificate substantiate that fact also. The ante-mortem injuries noted in Ext.P14 reads as follows :
"1. Incised penetrating wound 13.5x3.5 cm, vertically placed on the front of chest and adjoining part of abdomen in the midline. The upper sharply cut end was 13cm below the upper end of sternum, the other end was blunt. The wound cut fractured the left side of sternum at the level of 6 th and 7th costal cartilage and entered the chest cavity. It penetrated the front wall of right ventricle of the heart, transfixed the interventricular septum and ended in the cavity of left ventricle. The track of the wound was directed backwards, upwards and to the left and had a minimum depth of 10cm. The left chest cavity contained 500ml of blood.
2. Incised penetrating wound 8x2cm, vertically placed, with its upper sharply cut end 1.5cm to the right of midline and 5cm above the level of umbilicus. The other end was blun. It had penetrated the abdominal wall, and transfixed the left lobe of liver and the front wall of stomach. The wound was directed backwards upwards and to the left and had a minimum depth of 8cm. Portion of small intestine and mesentery were protruding out through the wound. Abdominal cavity contained 750ml of blood.Crl.A.No.1134 of 2016 8
3. Incised punctured wound 3.5x0.5x1 cm. obliquely placed on the right side of abdomen with is upper sharply cut end 0.5 cm outer to midline and 5cm below the level of umbilicus. The other end was blunt.
4. Incised wound 7x2x1.5 cm, horizontally placed on the back of right arm, 16cm below the tip of shoulder.
5. Incised wound 6x2x1.5cm, horizontally placed on the back of right arm, 4cm below the injury No 4.
6. Incised wound 4x1.5x0.5cm, obliquely placed on the back of right arm with its lower front end touching the elbow.
7. Incised wound 4x1x1cm. obliquely placed on the back of right hand with its lower inner end touching the root of little finger.
8. Incised wound 3x2cm, bone deep, obliquely placed on the front of left hand overlying the middle finger with its lower outer end, just below its middle knuckle.
9. Incised wound 4x1cm. bone deep, obliquely placed on the front of left hand, overlying the ring finger, with its upper outer end touching the middle knuckle.
10. Incised wound 9x4x3cm, muscle deep, vertically placed on the back of right thigh, with its lower end 16cm above knee.
11. Incised wound 5x2x0.3cm, obliquely placed on the outer aspect of right ankle.
12. Superficial incised wound 3.5x0.2x0.1cm. vertically placed on the middle of abdomen, with its upper end 3cm below injury No.1.Crl.A.No.1134 of 2016 9
13. Superficial incised wound 3x0.1x0.1 cm on the front of right forearm, placed obliquely with its upper outer end 12cm below elbow.
14. Superficial incised wound 3x0.1x0.1 cm on the front of chest involving the lower outer quadrant of right breast 10cm outer to midline.
15. Superficial incised wound 3x0.1x0.1cm obliquely placed on the left side of chest, involving the lower inner quadrant of left breast, 4cm outer to midline.
16. Superficial incised wound 3.5x0.5x0.2cm, obliquely placed on the back of left arm. 1cm above the back fold of axilla.
17. Superficial incised wound 2x0.1x0.1cm on the front of left hand, 1cm above the root of little finger.
18. Superficial incised wound 4x0.1x0.1cm obliquely placed the right side of neck with its lower front end 2cm outer to midline and 5cm below the lower jaw.
19. Lacerated wound 0.3x0.1x0.1cm on the right side of forehead. 4cm outer to midline and 3.5cm above eyebrow.
20. Abrasion 4x3cm an the back of right arm, 3cm above elbow.
21. Abrasion 4x2cm on the back of left elbow.
22. Abrasion 0.5x0.2cm on the front of left hand 2cm below wrist.
23. Abrasion 4x3cm on the front of left leg 12em below knee.Crl.A.No.1134 of 2016 10
24. Abrasion 8x4cm on the outer aspect of left thigh and adjoining part of knee.
25. Multiple small abrasions over an area 10x 5cm on the outer aspect of left thigh 14cm above knee.
26. Multiple small abrasions over an area 8x6cm on the outer aspect of left leg 15cm below knee.
27. Contusion 3.5x3x1cm on the inner aspect of right thigh 5cm below groin.
28. Contusion 3x2x1 cm on the inner aspect of left thigh 5cm above the knee"
9. PW16 also deposed that the death was due to stab injury sustained in the chest and abdomen. He also deposed that injury No.1 to 18 can be caused by stabbing with weapon like MO1 which is a dangerous one. He would also depose that MO1 was shown to him by the police and injury no.1 and 2 are fatal to cause death and can independently cause death also. The cross-examination of PW16 is to the effect that injuries can be caused by any other similar weapon. So the fact that these injures are caused by a weapon is not seen disputed. So we do not have any hesitation to hold that the death of the deceased was a homicide.
10. To prove the occurrence prosecution mainly relies Crl.A.No.1134 of 2016 11 upon the evidence of PW2 a child and the daughter of the deceased and also PW3 to PW7 who have reached the spot immediately after the incident. The main attack of the learned defence counsel with regard to the evidence of PW2 is that she is a tutored witness. So the first question to be resolved is with regard to the competency of PW2 to testify.
11. In this case it has come out in evidence that PW2 was 11 years at the time of incident and at the time of examination before the court she was 13 years of age. It is true that voir dire of PW2 was not taken before examination by the Sessions Judge. In this context before going to the acceptability of evidence of PW2 it would be relevant to quote Sec.118 of the Indian Evidence Act which reads as follows :
"118.Who may testify.- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation.- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."Crl.A.No.1134 of 2016 12
12. So the question with regard to the competency to testify depends upon the capacity of the witness to understand the questions put to him/her and to give rational answers to the questions. Usually the courts used to test the competency by making a preliminary enquiry. In this case obviously such an enquiry is not seen conducted by the learned Sessions Judge. But the question is whether that would itself make the evidence of PW2 the child witness inadmissible in evidence. In this context it is to be remembered that in every case of child witness before examination the trial court should conduct a preliminary examination. It is a rule of prudence and not a legal obligation. The fact that the preliminary examination was not conducted by itself will not make the evidence inadmissible if the evidence of the witness is otherwise found to be reliable on a scrutiny of the evidence tendered by the child witness. It is relevant in this context to quote Damodar Das Alias Bhoi v. State of Orissa (2019 KHC 2165) (Orissa high court). In that decision while dealing with Sec.118 it has been held that all persons are competent to testify unless the court considers that they are Crl.A.No.1134 of 2016 13 prevented from understanding the questions put to them or giving rational answers to those questions due to tender years. It is also held that no particular age has been prescribed as a demarcating line for treating a witness incompetent to testify by reason of his/her tender age and it is also held that competency to testify depends on ability to understand questions and to give rational answers and further that it depends on the capacity and intelligence of the child witness and his appreciation of difference between the truth and falsehood as well as his duty to speak truth. In that case victim was aged 14 years at the time of giving deposition and was below 12 years at the time of occurrence,. The trial court has not put any formal questions to the witness to testify her competency. Para 8 of the said judgment is relevant in this context which reads as follows :
"There is no dispute that in view of S.118 of the Evidence Act, all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions due to tender years etc. No particular age has been prescribed as a demarcating line for treating a witness incompetent to testify by reason of his/her tender age. Competency to testify depends on ability to understand questions and to give rational answers. It depends on the capacity and intelligence of the child witness, his appreciation of difference between the truth and falsehood as well as his duty to speak truth. When a witness is called upon to Crl.A.No.1134 of 2016 14 give evidence and there is reason to suspect that he/she may not be capable of giving rational answers to the questions put to him/her, it is but necessary for the Court to put some questions to such witness with a view to ascertain whether he/she is a competent witness to give evidence or not. There is no dispute that since a child witness is prone to tutoring, his/her evidence should be scanned carefully and preliminary questions are required to be put to such witness to ascertain as to whether he/she has intellectual capacity to understand the questions and hive rational answers thereto. The preliminary examination of a child witness is nothing but a rule of caution. The trial Court is required to record its query to a child witness in the form of questions and answers so that the Appellate Court will be in a position to see whether child witness understands the duty of speaking truth. Even though it is desirable to make such preliminary examination but it is not always imperative. There is no rule that in case of every child witness, the trial court should conduct a preliminary examination. It is only a rule of prudence and not a legal obligation. When questions are raised regarding the intellectual capacity of the child witness, the court can peruse the evidence of the victim in its entirety to find out as to whether he/she was capable enough to give rational answers to the questions put to him/her after understanding the same. Absence of preliminary examination of the child witness would not render his/her evidence inadmissible. The victim in this case was aged about 14 years at the time of her deposition. Even though the learned trial court has not put any formal questions to the victim to testify her competency by the nature and tenor of the evidence of the victim, the manner in which she has deposed about the occurrence in examination-in-chief and also faced and stood the test of searching cross-examination by the defence counsel, I am satisfied about the competency of the victim girl and I am not inclined to accept the contention raised by the learned counsel for the appellant that the evidence of the victim should be rejected in toto as the learned trial court has not made any preliminary examination of the victim. However I have to scan the evidence of the victim more carefully and with greater circumspection to convince myself regarding the quality and reliability of her version."
13. It is also relevant in this context to quote Lalu v. State of Kerala 2015 KHC 535). Therein while dealing with S.118 of the Act the competency of the child witness to testify, it has been held by this court that it is not the age Crl.A.No.1134 of 2016 15 which really matters and the determining factor is the capacity to understand the questions put and to give rational answers to the same. It is also held that persons of same age differ in mental age and their ability to understand it. In that case the child was above 12 years and preliminary examination was not conducted by the Sessions Judge. In that context it has been found by the court that the preliminary test is conducted by the court only to ensure that the witness is capable of understanding the nature of questions put to him and its ability to answer. It is also held that mere fact that voir dire test is not conducted does not affect the credibility of the evidence furnished by the witness. It is further found that if the court after taking evidence finds that the witness is capable of giving cogent, convincing and rational answers, then the witness is a competent witness under S.118 of the Act. It is also found that it is of course desirable that the trial judge should preserve on record the questions put and the answers given to assure himself that the child understood the duty of speaking the truth. But merely because such test is not conducted it does not take away the probative value of the Crl.A.No.1134 of 2016 16 evidence furnished by such a witness.
14. In this case also the fact that no preliminary examination was conducted by the learned sessions judge, would not infringe the admissibility of the evidence of PW2 who was a girl of 13 years at the time of examination before the court. It is true that if at all a voir dire test was conducted by the sessions judge and preserved it as a record it would have been a material for the appellate court to assess the competency of the witness even during the statement given at the time of preliminary examination.
15. It is also relevant in this context to remember that proviso to S.4(1) of the Oaths Act 1969, states that where the witness is a child under 12 years of age and the court is of the opinion that though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of the section and provisions of Sec.5 (Sec.5 deals with the affirmation by persons desiring to affirm) shall not apply to such witness and it also provides that in any such case the absence of an oath or affirmation shall not render Crl.A.No.1134 of 2016 17 inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. So S.4 of the Oaths Act also put the rider with respect to the child under 12 years of age. So in this case the victim was 13 years at the time of examination before the court and that may be the reason why the court below omitted to conduct Voir dire. So without any further discussion, it can be found safely that the failure of the sessions judge to conduct preliminary examination of PW2 with respect to the competency to testify by itself will not affect the probative value of the evidence tendered by PW2.The admissibility of evidence of PW2 has to be ascertained by appreciating her evidence in toto as to whether she is giving rational answers after understanding the questions put to her.
16. PW2 in chief examination gave a detailed narration of the incident and according to her, mother was murdered at 1.00 pm on 15.11.2013. She had seen the accused in the morning at her house. While she got up at 7 am accused was sitting on the verandah and she did not go to the school on that day since the deceased told her not to go to the school on that day. She heard the accused asking the Crl.A.No.1134 of 2016 18 mother to marry him and the mother denying the request. After 10.00 am, mother went for bath and returned at about 10.45 am. Even at that time, accused was sitting on the verandah. When mother came PW6, Minichechi came and to PW6 also accused stated about the marriage and she also objected the same. At about 12 'O' clock PW6 returned to her house. She also had been to the house of PW6 and at that time, PW3 Ajesh, was there. Since PW6 was not there, she returned to her house. Then door was locked from inside and she heard a cry inside. She knocked at the door and then heard a screaming of the mother and again she knocked on the door and mother asked her to come through the kitchen door and she went inside the house through the kitchen door and the mother was sitting in the middle room of the house and accused attempted to stab the mother with knife. Her mother tried to ward off the same. Thereafter accused caught hold on the tuft of the hair of the mother and took her to courtyard through the kitchen. At that time, mother and accused together fell into a drain; then the accused stabbed the mother three to four times. It was at the leg, hands, chest and abdomen and PW2 screamed Crl.A.No.1134 of 2016 19 shouting that her mother is being killed. Then PW3 came and asked the accused as to what is he doing. Then the accused asked him to return and PW3 took PW2 and went upwards. Accused was following them with the knife and he was wearing a bed sheet and ran away. She rushed to the house of PW5 Raziya aunt (father's sister) and stated that Ansari stabbed the mother and PW5 asked who is Ansari and she stated that it is Subhash. Then PW5 informed the murder to PW4 Mini. Herself PW3, PW4 Mini and PW5 came to their house and the mother was leaning on the basement of the drain by stooping down to the drain. They sprinkled water on the face but she was motionless. She also stated the motive as refusal of the mother to marry the accused and that before two to three weeks of the incident, she is in acquaintance with mother. She identified MO1 knife, MO2 shirt and also MO3 dhoti which had been worn by the accused and MO4 as the bed sheet.
17. During cross-examination she stated that on the day when her mother died she had been to the house of PW4 for taking lunch and further she stated that when she went there PW4 was not there and hence she returned. PW4, Crl.A.No.1134 of 2016 20 though a hostile witness also stated that PW2 came to her house at 10 am and she returned and she went for grazing the cow. She also stated that she had not served lunch to PW2 and she had not seen PW2 in her house after 10 am. So also PW2 stated that while she screamed shouting that mother had sustained injury PW3 Ajesh came and he took her and they ran to the house of PW5 the aunt and stated about injury sustained to the mother. PW3 Ajesh though do not fully support the prosecution case would depose in corroboration with PW2 that on hearing the cry of PW2 seeking for help he went there and thereafter he took PW2 to the house of PW5 and informed the matter and PW5 informed PW6 and four of them went to the house of the deceased and sprinkled water on the face of the deceased. Though he would not support his version of seeing the accused with weapon at the place of occurrence, he would admit the fact that he had been to the place of occurrence on hearing the cry of PW2 and accompanied PW2 to the house of PW5 and himself, PW2 and PW5 and PW6 together came to the house of the deceased. So those facts deposed by PW2 is in corroboration with the evidence of PW3. Crl.A.No.1134 of 2016 21 During chief examination also she deposed that she is in acquaintance with the accused before 2 to 3 weeks. In spite of the lengthy cross-examination she stated in page 15 of the cross that she knew the accused before 2 to 3 weeks of the incident. She also identified MO1 to 4 and would stoutly denied during cross-examination that it is because those were seen in the court that she identified those material objects. On evaluating the evidence of PW2, it is very clear that when she returned from the house of PW3, the mother and accused were inside the house and at the request of the mother she went inside and saw the altercation between the deceased and accused and further that the accused attempted to stab the deceased and it was warded off by the mother. She also stated that mother was dragged from the house towards the kitchen. She also stated the time of incident as 10 minutes and further that there was a push and pull between the accused and deceased inside the room. As per the scene mahazar Ext.P12 there was no blood stains inside the room and the room was found in a disorderly condition PW2 also deposed that the room was in disorderly condition. To a question whether there was push Crl.A.No.1134 of 2016 22 and pull at the kitchen, though she pleaded ignorance further she categorically stated that the mother was dragged from there. So the altercation and push and pull taken place between the deceased and the accused has been spoken to by PW2 which has been fortified by the scene mahazar. That would also prove the prosecution case that PW2 was present in the room when the altercation was going on between the deceased and the accused inside the middle room. So if at all she has not witnessed the incident it would not have been possible for her to give such rational answers during cross-examination.
18. According to the learned counsel for the appellant/accused the version of PW2, the child witness has not been corroborated in material particulars and the child witness is a tutored one. He would also contend that voir dire test was not conducted by the sessions Judge to ascertain the competency of the witness to depose. The prosecution also failed to obtain the statement of the child witness under Sec.164 Cr.P.C. He would also contend that the deposition of PW2 would show that there are many inconsistencies in her version which would point out the Crl.A.No.1134 of 2016 23 tutoring of the witness.
19. To substantiate his contention he would take our attention to the evidence of PW2 in chief examination that she is in acquaintance with the accused before 2 to 3 weeks of the incident. But during cross-examination she would state that the mother and the accused were in love and that was not liked by the family members of the mother and they have strong protest against it. She would also admit about the conversion of accused to Islam and his adoption of the name Anzari to reside with the mother.
20. But it is to be noted that the incident took place on 15.11.2013 but the evidence was recorded on 16.03.2016. At the time of the incident she was 11 years old and while giving evidence she was 13 years old. During those period she may be residing with the family members of the deceased and may be during that period she might have came to know about the protest of the family of the relationship between the mother and deceased. It is also quite improbable that the girl about 11 years age would understand the nature of relationship between a man and Crl.A.No.1134 of 2016 24 her mother. That would be more clear when she says in chief examination and also cross-examination that she got acquaintance with the accused only 2 to 3 weeks prior to the incident.
21. The learned counsel also relies upon the version of PW2 with regard to the presence of PW3 at the scene of occurrence and he would contend that PW3 when examined would say that when he reached the spot on hearing the cry of PW2 nobody was there. But it is to be noted that PW3 has been declared as hostile by the learned public prosecutor. So his evidence retracting from the version given to the police regarding the presence of accused when he reached there cannot be relied upon by the accused to impeach the credit of PW2. So also he relies upon the evidence of PW4 to contradict the version of PW2 that as requested by the deceased she went to the house of deceased to talk with the deceased. The very same principle applies and the accused cannot be heard to contend about the discrepancy of the evidence of PW2 by relying upon contradictory version given by a hostile witness.
Crl.A.No.1134 of 2016 25
22. The learned counsel also would contend that PW2 is a tutored witness and hence her evidence should have been corroborated by other independent evidence. The learned counsel would take our attention to Arbind singh v. State of Bihar ( 1995 Supp. (4) SCC 416) which according to the learned counsel, is a similar case where the evidence of child witness alone was there. The counsel also quoted para 3 of that judgment which reads as follows :
"........"Having taken a careful look at the evidence of the child witness we are of the opinion that implicit faith and reliance cannot be placed on her testimony since it is not corroborated by any independent and reliable evidence. It is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring."
23. But on going through the above decision it is seen that, that was a case in which husband was charged with the murder of his wife by hanging and the entire case was hinging on the evidence of the daughter of the deceased. She was aged 5 years at the time of incident and 9 years at the time of deposition and the trial Judge did not take voir dire though it has been noted that witness was capable of understanding and answering questions. But the witness was found not to be consistent in her version and case of tutoring was found on certain aspects of case. On analyzing Crl.A.No.1134 of 2016 26 the discussion of facts of that case it is seen that in the first statement she did not say that her mother was hanged. Subsequently she said that mother was hanged by electric wire. She later said she was hanged with the help of jute string and in the 164 statement she stated that her father had thrown a jute string around the neck of her mother and killed her. So it was in the above circumstances that it has been found that she has not been consistent in her version. So also that is a case of a child witness aged 5 years at the time of incident and 9 years at the time of giving deposition. But in the present case PW2 was 11 years old at the time of incident and 13 years at the time of giving deposition and there is no such inconsistency as has been noted in the above cited decision on analyzing the deposition of the PW2.
24. The learned counsel further took our attention to Ratasingh Dalsukhbhai Nayak v. State of Gujarat (2004 (1) SCC 64) wherein the Apex Court observed that precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make- believe. It is also found that though it is an established Crl.A.No.1134 of 2016 27 principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. But on going through the said decision it is seen that the child was tender aged stated to have witnessed a ghastly occurrence where two elderly person lost their lives because of the murderous acts by the appellant. But on a close scrutiny of the evidence and facts and circumstances of that case, it could be seen that the testimony of child witness was found to be credible and the conviction of the appellant placing reliance upon the child witness was held to be justified. So the evidence of child witness and the credibility thereof would depend upon the circumstances of each case. So the above decision cited will not in any way help the accused and each case has to be determined depending upon the facts and circumstances of each case by appreciating the evidence tendered by the child witness and competency to testify.
Crl.A.No.1134 of 2016 28
25. The learned counsel further took our attention to Panchhi and others v. State of U.P. ( (1998) 7 SCC
177). Para 11 of the said judgment containing the argument of the learned counsel for the appellant have been extracted by the learned counsel. It also hold the very same proposition that the testimony of child witness must be evaluated more carefully and with greater circumspection and find some corroboration and it cannot be rejected always. That was a case of murder of 4 members of a family and the narration of incident by the child witness was found to be quite natural though he saw only some part of the occurrence and it was also held that his evidence was decisive as to clear all doubts regarding identity of assailants. The learned counsel was actually quoting the above decision to support the proposition of law that the evidence of child witness must be corroborative before it is relied on. That was also the argument advanced by the counsel for the appellant in that case. But in spite of that it has been held that his narration of incident was quite natural though he saw only some part of the occurrence.
26. The learned counsel also took our attention to Dattu Crl.A.No.1134 of 2016 29 Ramrao Sakhare and others v. State of Maharashtra ( (1997) 5 SCC 341). Para 5 of that judgment has been quoted in the argument notes which reads as follows :
"The entire prosecution case rested upon the evidence of Sarubai (PW2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled principle we may proceed to consider the evidence of Sarubai (PW2).
27. So it has been specifically provided in the above para itself that evidence of child witness and credibility thereof would depend upon the circumstances of each case. It is also held that there is no rule or practice that in every case the evidence of such witness be corroborated before a Crl.A.No.1134 of 2016 30 conviction can be allowed to stand. However as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence of record and on appreciating the evidence. The apex Court also found that the trial Judge and also the High Court accepted the evidence of child witness as a reliable one hence the Apex court do not see a reason to disagree with the observations of the court below as regards the evidence of Sarubai (child witness). In that case also the evidence of child witness was acted upon in corroboration with other evidence the details in the present case would be discussed in the coming paragraphs.
28. The learned counsel further took our attention to Raja Ram Yadav and Others v. State of Bihar ((1996) 9 SCC
287). In that case the sole eye witness was the 9 years old child whose parents uncle and sisters were killed in the incident and the child witness could not tell them names of four out of 8 appellants. Para No.7 of the said judgment was quoted by the learned counsel in the argument notes. But on going through the entire decision it could be seen that ultimately the Apex Court did not interfere with the Crl.A.No.1134 of 2016 31 conviction but only modified death sentence to that of imprisonment for life. But it is to be noted that in that case altogether there were 8 accused and the child witness could identify only four accused by name out of 8 appellants. So taking into account the totality of the facts and circumstances the death penalty was modified to that of imprisonment for life. But the facts and circumstance of this case is entirely different and there is only one accused and PW1 the victim clearly identified the accused and also specifically stated that he was present in her house in the varandah while she got up in the morning on that fateful day. So the facts situation of the case in hand is entirely different. So the contention of the learned counsel for the accused with regard to the incompetency of PW2 to testify cannot be accepted at all.
29. The evidence of PW4-the mother of PW3 also would prove that immediately after the incident she had been to the place of occurrence and saw the deceased with injuries leaning on the ridge of the drain and found her motionless inspite of spreading water on her face. It is true that she was not prepared to admit the conversation between she Crl.A.No.1134 of 2016 32 and the deceased with regard to the nuisance caused by the accused and that at the request of the deceased she had been to the house of the deceased and talked with the accused and the contradictory version so given by her is marked as Ext.P7.
30. The evidence of PW5 the sister-in-law of the deceased also would corroborate with the evidence of PW2 that she had been to the house of PW5 along with PW3 and was informed about the attack of accused. Her evidence would further corroborate with the evidence of PW2 that she in turn informed PW6, and along with PW2, PW3 and PW6 they went to the house of the deceased and saw the deceased leaning towards the ridge of the drain. PW6 also deposed in corroboration with PW5 and PW2 that as informed by PW5 she along with PW5, PW2 and PW3 went to the house of the deceased and saw the deceased leaning on the ridge of the drain. The evidence of PW7 also would show that on getting information about the incident he also went to the spot and saw the deceased leaning on the ridge of the drain with injuries. He also stated about the presence of PW6, PW5, PW3, and PW2 at the time he reached there. Crl.A.No.1134 of 2016 33 So on going through the evidence of above witnesses it could be seen that the evidence of PW2 the child wittiness that she was present at the time of incident and saw the accused attacking her mother with MO1 and she cried for help and PW3 reached there and thereafter along with PW3 she went to the house of PW5 and PW5 in turn informed PW6 and all of them i.e PW2, PW3, PW5 and PW6 together came to the spot is proved beyond any shadow of doubt.
31. In the argument notes filed by the counsel for the appellants it has been contended that there is embellishment in the version of PW5 and 6. He would contend that PW5 stated that PW1 and PW3 came and told that Ansari had stabbed and PW6 would say that PW5 told that Ansari stabbed the deceased. He also pointed out that during cross-examination she stated that the version given to the police by PW6 that PW5 told her that some danger has occurred to the deceased is not correct. He also pointed out that during the examination of PW20 the investigating officer he stated that PW4 has not stated that Subhash had stabbed. PW6 also not stated that PW5 informed that deceased was stabbed by Ansari. Anyway all the above Crl.A.No.1134 of 2016 34 inconsistencies pointed out by the learned counsel are not at all material and even otherwise the evidence of PW6 and PW5 would only prove their information about the incident from PW2 and PW3. So the inconsistencies pointed by the learned counsel with regard to the evidence of PW5 and 6 are not at all material touching the root of the evidence or in other words can only be stated as negligible.
32. There is yet another significance to the evidence of PW2 when she stated that along with PW3 she went to the house of PW5 her aunt and stated that Ansari stabbed mother and aunt asked who is Ansari then she stated that it is Subhash. During cross-examination no specific question was put to her challenging that evidence. PW5-the aunt also deposed that PW2 Shyamila and PW3 came and stated that Ansari stabbed the mother and then she asked which Ansari and PW2 stated that it is Subhash. So the above statement of PW2 to PW5 is almost contemporaneous with the acts and PW5 also deposed about the statements so given by PW2 with regard to the cause of the death and it would amount to res gestae coming within the purview of Sec.6 of the Indian Evidence Act. Sec.6 of the Evidence Act Crl.A.No.1134 of 2016 35 (hereinafter called as 'the Act') is relevant to be extracted in this context, which reads as follows:
"6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations:
(a) A is is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
...................
.............."
33. It is relevant in this context to quote Kurian v. State [2019 KHC 741] wherein while dealing with S.6 of the Act it has been held by this Court that Sec. 6 is an exception to the general rule that hearsay evidence is not admissible. For giving such hearsay evidence within the ambit of Sec. 6 what is required to be established is that the statement sought to be admitted is forming part of res gestae must have been made contemporaneously with the acts or immediately thereafter.
34. In this case, PW2 immediately after the incident along with PW3 who reached the spot on hearing the alarm went to the house of PW5 and stated that 'Ansari stabbed her Crl.A.No.1134 of 2016 36 mother' and PW5 asked which Ansari, then she replied that it is Subhash. PW5 in her evidence also deposed in corroboration with PW2 with regard to the statement. It has come out in evidence that immediately PWs 2, 3, 5 and 6 rushed to the spot and saw the deceased with injuries leaning on the ridge of the drain and they sprinkled water but she was motionless and after that the body was taken and made to lie on the verandah. So the statements so given by PW2 to PW5 immediately after the incident is so connected with the cause of death of the deceased so has to form the same transaction and hence is relevant under S. 6 of the Indian Evidence Act.
35. In C.D.Field's Commentary on Law of Evidence 13th Edition, page No.785 in a paragraph dealing with applicability of res gestae the essential elements to attract the res gestae has been discussed the portion of the relevant paragraph reads as follows:
"...............................................................................................
An examination of the case will disclose, it has been stated, that the statement or declaration concerning which testimony is offered, must in order to be admissible as part of the res gestae, possesses at least the following essential elements: (1) The statement or declaration must relate to the main event and must explain, elucidate, or in some manner characterize that event. (2) Crl.A.No.1134 of 2016 37 It must be natural declaration or statement growing out of the event, and not a mere narrative of a past completed affair. (3) It must be a statement of fact, and not the mere expression or an opinion. (4) It must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself and not the product of premeditation, reflection, or design. (5) While the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation. (6) It must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which, the declaration or statement was made."
36. So on looking at the essential elements extracted above, it could be seen that all the above ingredients are attracted to the statement given by PW2 to PW5. So the statements so given by PW2 to PW5 with regard to the death of her mother is natural spontaneous statement of fact contemporaneous with the death of her mother without any deliberation on witnessing the act of the accused causing the death of her mother by stabbing with knife. So the above portion of the evidence of PW2 corroborated with that of PW5 is admissible under S.6 of Indian Evidence Act also.
37. Apart from the above, prosecution also relies upon the seizure of MO1 blood stained knife seized from the accused at the time of surrender by describing in Ext.P5 seizure mahazar and also seizure of MO2 blood stained shirt by Crl.A.No.1134 of 2016 38 describing in Ext.P19 seizure mahazar at the police station. Ext.P5 is the seizure mahazar for seizing MO1. Ext.P10 is the recovery mahazar prepared while recovering MO4 bed sheet from the shed of PW19. The disclosure statement leading to the recovery has also been separately marked as Ext.P20. It is true that PW19 the owner of the shed did not admit the fact that he has rented out the shed to the accused but he would admit that he has got 5 to 6 cents of property near Thikkody store and there is a shed in that property. He would also admit that PW14 is his son in law and prosecution case is that it is at the instance of PW14 the son-in-law that he has let out the shed to the accused. PW14 also did not support the prosecution case that accused has resided in the shed of PW19 and he also disown the statement that on his recommendation the father-in-law has given the shed and property to accused but he would admit the fact that he is in acquaintance with the accused for the last two years and further that his father in law PW19 has got property near Thikkody store and further that PW19 Madaswamy is his father-in-law.
38. The witness in Ext.P10 mahazar fully supported the Crl.A.No.1134 of 2016 39 prosecution case regarding the recovery of MO4 bed sheet from the shed at the instance of the accused and he identified MO4 as the bed sheet recovered at the instance of the accused. It is brought out during cross examination that he is a relative of the deceased and is in acquaintance with the accused and reiterated during cross-examination that he has seen the accused producing the bed sheet. Nothing was brought out to show that he has got any enmity towards the accused to inculpate him falsely. So the fact that PW19 has got a shed near Thikkodi store has been proved in evidence and the evidence of PW20 coupled with the evidence of PW10 proved the recovery of MO4.
39. The main contention of the learned counsel for the accused is that none of the witnesses in Exts.P5 and P19 seizure mahazars have been examined and hence Exts.P5 and P19 which alleged to have been seized at the police station cannot be accepted in evidence. It is true that prosecution have not examined the witnesses in Exts.P5 or P19. But Ext.P5 has been prepared by PW1 at the police station and though an independent witness and a CPO has been cited as witnesses and one among them has been Crl.A.No.1134 of 2016 40 arraigned as CW5 in the charge, both of them have not been examined. In Ext.P19 also an ASI of Police has been cited as a witness, but he has not been examined. But the question is whether the non examination of the witnesses cited in the seizure mahazar which were prepared at the police station while seizing MO1 blood stained knife and MO2 the blood stained shirt worn by the accused by itself would efface the sanctity of Ext.P5 and P19 when PW1 the S.I. who seized MO1 and PW20 the Inspector of Police who seized MO2 by describing it in Ext.P19 seizure mahazar have given evidence in support of the seizure mahazars. Moreover, the accused has been arrested at 2.05 p.m on 15.11.2013 as per Ext.P2 arrest memo Ext.P3 custody memo and Exbt.P4 inspection memo are prepared simultaneously have been produced. Though at the time of examination of the accused he has stated that he has gone to the police station on getting information about the death of his wife and was arraigned as accused in this case falsely, all the attending circumstances like arrest memo inspection memo seizure mahazars Exts.P5, P19 etc would falsify the defence case put forwarded by him. Moreover, no Crl.A.No.1134 of 2016 41 specific allegation of enmity is also raised either against PW1 the Sub Inspector before whom he surrendered or against PW20 the Inspector of Police who subsequently investigated the case and filed the charge sheet. So though no witnesses in Exts.P5 or P19 seizure mahazars have been examined there is nothing to disbelieve the evidence of PW1 and PW20 who prepared those seizure mahazars especially because those documents were prepared admittedly at the police station.
40. Though the learned counsel took our attention to the judgment of the Apex Court in Crl.A.984/2007 (Govinda Raju @ Govinda v. State), the question arose therein was recovery under Section 27 of the Evidence Act and the prosecution case was that Sub Inspector of Police had witnessed the incident. Moreover in paragraph No.36 it has been found that the prosecution has taken no steps to prove whether the weapons of offence contained human blood and if so was it of the same blood group of the deceased or not. It is further stated that "certainly we should not be understood to have stated that the police officer by himself cannot prove a recovery, which he has affected during the Crl.A.No.1134 of 2016 42 course of investigation and in accordance with law". It is also held that in such cases statement of the Investigating Officer has to be reliable and so trustworthy that even if the attesting witnesses to the seizure turn hostile, the same can still be relied upon, when it is otherwise corroborated by the prosecution evidence which was said to be not there in that case. But in this case, it has already been found that evidence of PW2 is reliable and can be acted upon and moreover the weapon of offence which has been produced by the accused at the time of surrender at the police station and also his shirt and bed sheet worn at the time of incident contained human blood belonging to blood group 'O' as per Ext.P27 FSL report. So the fact situation of this case is entirely different from the decision cited above.
41. The learned counsel would further contend that the prosecution case is that, immediately after the commission of the crime accused came to the police station in a bike bearing registration No.KL/35/3476 and that bike was seized as per Ext.P18 mahazar. But prosecution did not cite any of the witness in the seizure mahazar of the bike as witness. According to the learned counsel the seizure of the Crl.A.No.1134 of 2016 43 bike is an important event for establishing the linkage of facts leading to the complicity of accused. It is true that the witnesses in Ext.P18 seizure mahazar of the bike have not been cited as witness by the prosecution. Moreover, in the additional statement filed by the accused at the time of examination under S.313 (1)(b) Cr.P.C it has been admitted by the accused himself that he himself had went to the police station by his bike. So the fact that he has gone to the police station by his bike is rather admitted. So also PW20 the investigating officer stated in chief examination that he seized KL/35/3476 motor bike by which the accused came to the police station, at the police station compound by describing in Ext.P18 seizure mahazar. But curiously enough no question was put to PW20 the investigating officer in this regard. So the fact that the witnesses in Ext.P18 seizure mahazar have not been cited as witness by the prosecution will not in any way help the accused.
42. The learned counsel would further contend about failure of the prosecution in sending MO3 lunki to forensic lab. MO3 is the lunki of the accused seized from the house of the deceased. But the prosecution did not have any case Crl.A.No.1134 of 2016 44 that accused had been wearing MO3 at the time of incident. That may be the reason why it was not send to FSL. The specific prosecution case is that accused had been wearing MO4 bed sheet while he left from the place of incident. PW2 categorically stated during evidence that MO3 was the lunki which had been worn by the accused in the morning while she saw him. So the absence of sending MO3 to the FSL is of no avail to the accused. So the contention of the counsel that Ext.P13 seizure mahazar, which relates to the seizure of MO3 lunki, does not state that lunki was blood stained is also of no consequence.
43. Another important factor is the subsequent conduct of the accused in surrendering before the police with MO1, blood stained knife, immediately after the incident. The evidence of PW1 and Ext.P1 FIR suo motu registered by him would prove that at 1.40 pm FIR was registered in this case. It would prove that accused surrendered before the police at 1.40 pm with MO1 knife stained with blood.
44. It is relevant in this context to extract Section 8 of the Indian Evidence Act which reads as follows : Crl.A.No.1134 of 2016 45
Motive, preparation and previous or subsequent conduct. - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1 - The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2 - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
45. In Aghnoo Magsha v. State of Bihar (AIR 1966 SC
119) it has been held that if the first information is given by the accused himself the fact of his giving the information is admissible against him as evidence of his conduct under Sec.8 of the Evidence Act. That decision has been followed in Siddappa v. State of Karnataka (1991 Crl.L.J 458). In para No.5 of the above judgment it has been stated that when the accused himself gives the first information, the fact of giving the information is admissible against him as evidence of his conduct under Sec.8 of the Evidence Act.
46. While analyzing Explanation 1 to Sec.8 of the Indian Evidence Act it could be seen that what has been provided therein is including acts other than statements. So when the Crl.A.No.1134 of 2016 46 accused surrenders himself with the blood stained MO1 it would come under explanation of act other than the statement and hence to that extent it is admissible under Sec.8.
47.The next contention of the learned counsel for the accused is that prosecution failed to establish that the blood sample taken from the deceased in autopsy was send for chemical examination was that of the deceased. To substantiate this contention it is contented that Ext.P27 FSL report says that item No,10 12 a and 12(b) contained blood which are not sufficient for determining the origin and item 8 and 9 contain sample of human blood which were unsuitable for blood grouping. According to him the blood group of the deceased was not identified. Further he would contend that in item 6 in the report is dark brown stain collected in cotton gauze from the scene of occurrence. As per the property list its number is 376/13 and which is the blood stained gauze of the deceased and according to him as per FSl report item No.9 contained articles as 376/13. But as as per the FSL report the blood groups in item Nos. 1 to 6 and 11 only could be identified. And item No.8 and 9 though Crl.A.No.1134 of 2016 47 contained human blood were found to be unsuitable for blood grouping. So according to him as per the report the blood of the deceased is found to be incapable of grouping.
48. But on a close evaluation of Ext.P22 series and Ext.P27 we are of the view that the learned counsel has totally mistaken in analysing Ext.P22 series and FSL report, Ext.P27, On perusal of Ext.P27 it is seen that item No.6 serial No.6 is the item as per T378/13 which is dark stain collected from the scene of occurrence and item No.11 is a piece of cotton gauze with yellowish brown stain with a label PM 1535/2013, blood stained gauze (the blood stained gauze taken at the time of postmortem of the deceased). FSL report Ext.P27 clearly provides that item No.6 and 11 contains human blood belonging to group 'O'. So there will not be any doubt to conclude that the blood group of the deceased was group O. Though the learned counsel states about item 10, 12 (a) and 12(b), item No.10 is the cover sending blood sample of accused and item 12a and 12b are the nail clippings of the accused. As per Ext.P27 item 10, 12a and 12b though contained blood, were found to be insufficient for determining the origin and group. Crl.A.No.1134 of 2016 48
49.FSL report would also prove that MO6 nighty, MO7 underskirt, of the deceased and MO2 shirt of the accused, MO4 bed sheet recovered from the shed where accused was residing, and MO1 knife and also serial No.6 which is dark stain collected from the scene of occurrence and also item no.11 which is the blood stained gauze taken at the time of conducting the postmortem on the body of the deceased contained human blood belonging to group 'O'. So it would prove that the blood group of the deceased was 'O' and all the above material objects pertaining to the deceased and the accused contained the same human blood of 'O' group. Blood was not detected in the unstained control cotton gauze which was taken as item no.7. It is true that the blood stains in the nail clippings of the accused and also the blood stained cotton gauze and nail clippings, pubic hair, scalp hair collected by the doctor conducting postmortem on the body of the deceased also reported to be unsuitable for blood grouping and nail clippings though reported to have contained human blood the group could not be detected. It also would report that the nail clippings of the accused though subjected to micro-scopic examination, no foreign Crl.A.No.1134 of 2016 49 particles could be detected. In this context the learned counsel for the accused would content that if at all there had been any scuffle in between the accused and deceased as alleged by the prosecution some foreign particles would have been detected in his nail clippings or in the nail clippings of the deceased. But possibility of foreign materials would arise only if there had any marking of scratch by either of them during the push and pull. What is reported is that the blood stains contained in the nail clippings of the accused were found to be insufficient for determining the origin.
50. Though DNA profiling of vaginal swab and smear of the deceased was also done, it is reported that seminal stains found on the same is insufficient for the extraction and finding of DNA. It is also reported that DNA of the accused is not detected in the nail clippings of the deceased. It is also reported that blood stained sample in item no.11 which is piece of cotton gauze collected at the time of postmortem is in a degraded condition and hence is unsuitable for extraction and finding of DNA. So the DNA profiling though conducted is inconclusive. But that will not Crl.A.No.1134 of 2016 50 in any way affect the prosecution case because there are other evidence in abundance which we have already discussed in detail.
51. The learned counsel for the accused would further contend that the motive alleged by the prosecution for commission of offence by the accused is unbelievable. According to him the prosecution case is that accused insisted for marrying the deceased, to which the deceased was not willing. But on reading the evidence of PW2 the child witness, it shows that the accused and deceased were living together as husband and wife. He would also contend that the evidence of PW4 a neighbour establishes that the accused and deceased were already married when PW4 stated that deceased told her in the morning of the day that the deceased had married the accused. He would also highlight the evidence of PW2 that accused adopted the name as Ansari for residing with the mother and he also converted to Islam. So according to him, evidence of PW2 and 4 establish that the accused married the deceased and hence the motive alleged by the prosecution is proved to be false.
Crl.A.No.1134 of 2016 51
52. But on going through the evidence of PW2 she has categorically stated that accused stabbed the mother since the mother was not willing to marry him. PW4 though stated that deceased informed in the morning of the date of incident that deceased told her that accused had married her it cannot be ignored that PW4 is a hostile witness and it is also to be noted that the statement given by her is that on the date of incident in the morning that deceased told her about the marriage between them. Whereas the prosecution case is that on the date of incident PW4 had come to their house at the request of the deceased to persuade the accused to retract from his demand to marry the deceased. So also her evidence also would indicate that till the date of the incident she was not aware that accused had married the deceased. So that itself would point out the fallacy of the defence case that accused married the deceased and they were living together as husband and wife. It is also to be noted that even in the 313 statement accused has not stated about the marriage between himself and deceased though he would state that they were living together as husband and wife.
Crl.A.No.1134 of 2016 52
53. The evidence of PW5 - the sister-in-law of the deceased also would show that there was some illicit relationship between the deceased and the accused and they came to know about that affair before 5 to 6 months of the incident and she did not like that relationship also. It is also notable that to any of the other witnesses including PW5 the sister-in-law of the deceased no specific suggestion was put to the effect that the marriage between the deceased and the accused is already over.
54. The evidence of PW2 also throw some light in the above aspect. She would state during evidence that on the preceding day of the incident she along with mother had been to Vayppoor to see her elder brother and when they returned in the evening accused was not there. But on the next day morning at 7 a.m when she got up she saw the accused on the verandah. So that also would indicate that the visit of the accused to the house of the deceased is during night. That also strengthen the prosecution case that the deceased was having an illicit relationship with the deceased and there might have been some understanding between the accused and the deceased that is the reason Crl.A.No.1134 of 2016 53 why he came to the house during night. She might have subsequently wriggled out from her offer to marry him and that might have resulted in this incident as alleged by the prosecution. So there are evidence in abundance to prove the motive alleged by the prosecution in this case. Moreover, in a case based on direct evidence proof of motive is of little significance. In this context, it is relevant to quote Abu Thakir and ors v. State [AIR 2010 SC 2119]. That was also a case under Section 302 IPC and a contention was raised with regard to the absence of motive from the side of the appellant/accused. In paragraph no.22 of the said decision it has been held by the Apex Court that in the light of the direct evidence of PW2 to 4, 8 and 20 the motive was of no significance.
55. It is also relevant in this context to quote Gosu Jairami Reddy and anr. v. State of Andhra Pradesh [AIR 2011 SC 3147]. That arose in a murder trial. In paragraph no.13 the contention with regard to the absence of motive was dealt with and it has been held that in cases based on eyewitness account of the incident proof, absence of a motive is not of any significant consequence. If a motive Crl.A.No.1134 of 2016 54 is proved it may support the prosecution version. It is also held that existence or otherwise of a motive plays a significant role in cases based on circumstantial evidence. So in a case of direct evidence if the deposition given by the eyewitness account of the incident that led to the death of deceased is reliable, absence of motive would not make any difference. Moreover the prosecution in this case could establish the motive behind the incident also to a great extent.
56. Based on the above discussion, we find no reason to interfere with the conviction passed by the court below against the accused under Sections 449 and 302 IPC. But with regard to the sentence passed by the court below, we find some illegality and irregularity since no default sentence is seen awarded though a fine of Rs.2 lakhs is imposed under Section 302 IPC. The learned Sessions Judge ought not have omitted to impose default sentence after imposing a fine of Rs.2 lakhs under Section 302 IPC apart from the imprisonment for life awarded. In order to see that the sentence is not enhanced in this appeal by the accused, we reduce the substantive sentence imposed Crl.A.No.1134 of 2016 55 under Section 449 IPC by one year. Hence the sentence awarded by the court below is modified as follows:
Accused is sentenced to undergo, rigours imprisonment for five years for the offence under Section 449 IPC, imprisonment for life and to pay fine of Rs.2,00,000/-
(Rupees two lakhs only) for the offence under Section 302 IPC, in default, to undergo further period of imprisonment for one year. Fine amount if realised, shall be given to PW2 as compensation under Section 357(1)
(b) Cr.P.C. Substantive sentences shall run concurrently.
Set off is also allowed as per law.
In the result, conviction passed by the court below is confirmed and sentence passed against accused/ appellant is modified to the above extent under Section 386 (b)(iii) Cr.P.C.
Sd/-
A. HARIPRASAD JUDGE Sd/-
M.R.ANITHA
Mrcs/shg JUDGE