Babu vs State Of Kerala on 24 July, 2019

[Cites 12, Cited by 0]

Kerala High Court

Babu vs State Of Kerala on 24 July, 2019

Equivalent citations: AIRONLINE 2019 KER 445

In this appeal, the appellant Babu, who is the sole accused, challenges the judgment of conviction and order of sentence passed against him by the 4th Additional Sessions Judge, Kottayam in S.C. No. 276 of 2012. By virtue of the said verdict, he was found guilty for offences under Sections 452 and 302 of the Indian Penal Code, 1860 (for short 'IPC') and was directed to suffer imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for six months for offence under Section 302 of I.P.C. and also sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `5,000/- (Rupees Five Thousand only) in default of which to suffer rigorous imprisonment for two months for offence under Section 452 of I.P.C. All sentences were directed to run concurrently. Fine amount, if realized, was directed to be paid to PW2, PW3 and DW1 equally under Section 357(1) of the Code of Criminal Crl.Appeal No.981/15 -:3:- Procedure, 1973 (for short 'Cr.P.C.').

2. Case of the prosecution against the appellant is as under:

The appellant was in enmity with PW2 and her husband Wilson @ Geevarghese (the deceased herein) out of his unfounded belief that they were extending help to PW8 who is the wife of the appellant. PW8 was sent out of the house by the appellant due to marital issues and from there on, the appellant was in inimical terms with relatives of PW8, especially PW2 and her husband. On 18/03/2012 at about 07.15 p.m., the appellant trespassed into the dwelling house of PW2 bearing no. 233 in the 14 th ward of Kooroppada Panchayath hiding a knife on his back. He broke open the door of the house and trespassed into the main hall where the younger child of PW2 was watching television. Suddenly, PW2 and Geevarghese came to the hall from the kitchen. The appellant rushed towards PW2 and at that time, Geevarghese intervened and asked the appellant to go away from there. Immediately, the appellant took out a long knife from his back and stabbed on the left elbow of Geevarghese. Using the same Crl.Appeal No.981/15 -:4:- knife, he again stabbed on the left chest of Geevarghese below the nipple. The injured was taken to hospital, but on the way, the victim succumbed to his injuries.

3. To prove the case, prosecution examined PW1 to PW27 as witnesses, marked Exts.P1 to P27 documents and identified MO1 to MO10 as material objects. After closure of prosecution evidence, the appellant was questioned by the learned Sessions Judge under Section 313 of Cr.P.C. to offer explanation regarding the incriminating evidence against him, which the appellant denied. He filed a written statement, wherein he stated that he had married Minimol Jose as per rites and customs of Hindu community and two daughters were born out of the wedlock. They lived together happily for 10 years. One day, a quarrel took place regarding a telephone call and on the next day, she left the house taking her children along with her. She managed to arrange a rented house with the help of her lover. Appellant herein filed a complaint regarding missing of his wife and children. After 10 days, he was called to office of Dy.S.P where he met his wife and children. The Sub Inspector asked him to seek Crl.Appeal No.981/15 -:5:- remedy through Family Court. After a few days, a relative of his wife Mr.Ranjan who was the Assistant Sub Inspector of Police called him over phone and told him to come to his house. He went there and saw his wife and children in Ranjan's house. Ranjan asked the appellant to forgive the wrongs of appellant's wife and take her and her children back with him. After one month, the appellant took them back. But his wife again started to call others in secret. Finally, the appellant came to know that his wife is an agent of a sex racket. He filed complaint to Magistrate Court alleging threat from unknown people. Then, he published the matter in Kerala Kaumudi daily and Surya television channel. His wife and her lover engaged quotation team to kill him. In an attempt for the same during Onam celebration at Kunnelpeedika, one Vijesh got killed. But the appellant was apprehended for killing him. He was released on bail after 52 days and began to lead a peaceful life by doing work. The henchman of his wife again threatened the parents of the appellant for which his father filed a complaint to the Superintendent of Police, Kottayam. The condition of bail of the Crl.Appeal No.981/15 -:6:- appellant was that he had to appear before police on every Sunday. On 18/03/2012, he came to the police station and then to the toddy shop at 12th Mile for having lunch. Thereafter he went to his sister's house at 14th Mile. From there, he had gone to Nenmara, Palakkad in search of a job with the help of his friend. He came to know about the death of Geevarghese on 22/03/2012 from his sister. On 23/03/2012, he returned to Changanacherry. On 24/03/2012, when he came to the Judicial First Class Magistrate's Court to inform about the incident, he was caught by the police. According to him, he has not committed the offence. DW1 to DW9 were examined as witnesses and Exts.D1 to D2 were marked as contradiction from the side of the defence. The defence was conducted by the appellant himself though he was offered and in fact availed the service of three Advocates by the Court below.

4. Learned counsel appearing for and on behalf of the appellant Sri.K.Nirmalan argued that Court below committed error in convicting the appellant. PW2 and PW3 are relatives and highly interested witnesses. They have an axe to grind against the Crl.Appeal No.981/15 -:7:- appellant. Their version is not believable and it is liable to be rejected totally. Motive for the crime is not proved by the prosecution. No recovery is effected in the case. Medical evidence and other evidence available in the case do not support the version of witnesses. No scientific evidence in the form of finger print or DNA test is done. He pleaded to reverse the finding and acquit the appellant by extending the benefit of doubt. He placed reliance on the following decisions of the Apex Court to substantiate his arguments:

(i) Govindaraju @ Govinda v. State [(2012) 4 SCC 722] was cited to emphasize the impact of non-examination of independent witnesses when prosecution case is otherwise weak or infirm.

(ii) Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT), Delhi (AIR 2012 SC 750) was cited to fortify the argument that in the absence of fair trial, conviction is liable to be set aside.

5. In reply, learned Senior Public Prosecutor argued that prosecution fully established the case against the appellant and learned Sessions Judge is perfectly justified in convicting the Crl.Appeal No.981/15 -:8:- appellant for offences alleged. PW2 and PW3 are none other than the wife and child of the deceased. Their version is cogent and categoric. Overt act is committed by the appellant by trespassing into the house of the victim by carrying MO1 and MO2 weapons. Medical, forensic and other evidence corroborates the version of prosecution. He submitted to dismiss the appeal as it lacks merit.

6. We heard both counsel in detail and scanned evidence available on record. The question to be determined is whether the Court below was justified in arriving at a conclusion that the death of Geevarghese was a homicide and the appellant herein caused his death as alleged.

7. Evidence adduced by the prosecution, in short, are as follows:

PW1 is the father-in-law of the deceased who gave Ext.P1 First Information Statement to police on 18/03/2012. PW2 is the wife of the deceased and PW3 is the elder son of the deceased and PW2. Both PW2 and PW3 are occurrence witnesses. PW4 is a neighbour who arranged the taxi to take the injured to hospital and PW5 drove the said taxi. PW6 deposed that in the intervening night Crl.Appeal No.981/15 -:9:- between 18th and 19th at around 07.45 - 08.00, he had seen the appellant passing through the road on the southern side of Kannamkulam House at Ponnappan City in 7th Mile. PW7 deposed that he had seen the appellant conversing with PW6. PW8 is the estranged wife of the appellant. She stated the motive for the crime. PW9 stated that appellant is his friend and they were going together for plumbing work and fishing. The appellant possessed MO1 from 2010 onwards. On request of the appellant, he had given a piece of pipe suitable to cover MO1. Said pipe is identified as MO2. PW10 is a staff of toddy shop no.35 of Pampady Range. He stated that the appellant had come to the toddy shop on the date of incident during noon and he remained there till 05.00 p.m. MO4 is identified as the big shopper found with the appellant on that day. PW11 is an attestor to Ext.P2 seizure mahazar of big shopper and the articles found in it. PW12 deposed that CW20 who is the sister of the appellant handed over MO5 plastic cover in which 14 articles were there. Ext.P3 is the mahazar for the same. PW13 is an attestor to Ext.P4 scene mahzar through which MO1 and MO2 were seized. PW14 is an Crl.Appeal No.981/15 -:10:- attestor to Ext.P5 mahazar for the seizure of MO6 belt. PW15 is the owner of Noble Plaza lodge near KSRTC Bus stand, Palakkad. He produced the register of the lodge showing the name and pseudo address of the appellant. Ext.P6 is the mahazar for its seizure. PW16 is a police personnel who is an attestor to Ext.P7 mahazar prepared for the seizure of MO3 dress of the accused at the time of his arrest by the Investigating Officer from Changanacherry Police Station. PW17 is an attestor to Ext.P8 inquest report. PW18 is the photographer who took Ext.P9 series (15 nos.) of the corpse of Geevarghese. PW19 is the then Village Officer who prepared Ext.P10 site plan. PW20 issued Ext.P11 residence certificate of the house of the deceased. PW21 conducted post-mortem examination on the dead body of Geevarghese on 19/03/2012 at 11.15 a.m. Ext.P12 is the post- mortem certificate. According to him, death of Geevarghese happened due to incised penetrating injury sustained to the chest. MO1 can cause injury nos.1 and 2. PW22 is the photographer who took Ext.P13 series (19 nos.) photographs of the place of occurrence as per the request of the Investigating Crl.Appeal No.981/15 -:11:- Officer. PW23 is the Scientific Assistant who collected 4 samples of blood stains from the place of occurrence. MO1 and MO2 were found from the place of occurrence. Ext.P14 is the report prepared by her for the same. PW24 is the then Sub Inspector of Police, Changanacherry Police Station. He arrested the appellant on 24/03/2012 from the premises of Changanacherry Court. PW25 is the room boy of Noble Plaza lodge, Palakkad. It is his version that on 22/03/2012, the appellant came to the lodge and he allotted room no.306 for him. Ext.P15 is the accommodation register maintained in the lodge. Customers write their address in the said address register. Page no.61 of the register contains the details of address written by the appellant which is marked as Ext.P15(a). According to PW25, the appellant first wrote the name and address as Sunny, Thadathil House, Kozhikode District and then it was scored off and written as Babu C.T., Thonnamkunnu, Velloor, Kottayam. The first address was scored when he was asked to write the pin code and to show his identity card. He showed his identity card and in it, it was seen as Babu and hence he scored the first written address and wrote the above address. Crl.Appeal No.981/15 -:12:- PW26 recorded Ext.P1 FIS of PW1 and Ext.P16 is the FIR registered based on Ext.P1. PW27 conducted the investigation of the case. On 19/03/2012, he prepared Ext.P8 inquest report. MO7 cloth is found on the body of the deceased. Ext.P4 scene mahazar was prepared as per which MO1 and MO2 were seized from the place of incident. He seized other material objects also. Ext.P17 is the arrest memo, inspection memo, custody memo and arrest intimation of the appellant. Ext.P21 is the report showing name and address of the appellant. Ext.P18 register contains the attendance of the appellant on 18/03/2012 in Pampady Police Station which attendance is one of the conditions of his release on bail for being accused in another murder case having Crime No.473 of 2011 of Pampady Police Station. Ext.P19 is the requisition for chemical analysis of the samples collected and Ext.P20 is the chemical analysis report of those articles. Ext.P22 is the chemical analysis report of blood samples.

8. Defence evidence consisted mainly of the oral version of DW1 to DW9. DW1 is the younger son of PW2 and the deceased. He stated that he knows the appellant/accused as the Crl.Appeal No.981/15 -:13:- husband of Mini aunty. The appellant used to come to his house and demand money from his father. On 18/03/2012 at 07.30 p.m., appellant came to the house and stabbed his father and as a result of which his father died. DW2 is a neighbour of the deceased. Hearing the cry of wife and children of deceased, neighbours including DW2 gathered there. He had taken Geevarghese to hospital. DW3 is the mother of estranged wife of the appellant. DW4 is the brother of PW8. DW5 deposed that a big shopper containing articles were found in front of the plantation where he was working and it was taken by Pampady Police. DW6 is the sister of the appellant. She deposed that the appellant came to her house after 05.00 p.m. on the fateful day. Some articles belonging to the appellant like watch, mobile phone and dresses were produced before police. DW7 is the brother-in- law of the appellant. He deposed that the appellant came to his house at 05.00 p.m on the date of incident and he returned only after 07.30 p.m. He told them that he was going to Palakkad for job. DW8 is the brother of the deceased. He stated that he had seen the appellant at the house of the deceased. He was present Crl.Appeal No.981/15 -:14:- at the time of conducting the inquest. DW9 is another brother of the deceased. He was also present at the time of inquest.

9. First of all, it is necessary to look whether the death of Wilson @ Geevarghese was a homicide or not. Apart from the oral testimony of relatives, there are other evidence to throw light on this aspect. Ext.P8 is the inquest report of the deceased. PW21 Dr.Zachariah Thomas, the then Associate Professor of Forensic Medicine at Government Medical College, Kottayam conducted autopsy on the corpse of victim. Ext.P12 is the post-mortem certificate. He stated that he had noted following ante-mortem injuries on the corpse of the victim:

"1. Incised penetrating wound 6x1.3cm horizontally placed on the left side of front of chest, with its sharply cut inner end 8 cm outer to midline and 14.5 cm below collar bone, the outer end was blunt. The lower margin of the wound showed a 'V' shaped notch 4cm outer to the sharply cut end. The 4 th left intercostal space was seen penetrated by cutting the upper border of fifth rib, and the would terminated by piercing the inner border of lower lobe of left lung 3x0.8 cm through and through. The wound rack was directed backwards, downward and to the right for a total minimum depth of 12 cm. The left chest cavity contained 1000 ml of blood mixed with clots. Left lung was pale and collapsed.

2. Incised wound 10x2cm muscle deep oblique on the Crl.Appeal No.981/15 -:15:- back of left forearm, its back upper end, 5 cm below elbow.

3. Inner abrasion 4cm long oblique on the outer aspect of right arm, its upper end 13 cm below top of shoulder.

4. Linear abrasion 7 cm long on the left side of back of abdomen horizontal, 13 cm outer to midline and 6 cm below costal margin.

5. Superficial lacerated wound 0.5x 0.1cmx 0.1cm on the front of lower lip corresponding to right upper central incisor tooth."

According to him, the cause of death was incised penetrating injury sustained to the chest of the deceased. Said injuries could be caused by MO1 which is a dangerous weapon. From these, it is rather clear that the deceased herein is Wilson @ Geevarghese and his death was a homicide. We agree fully with the finding of the trial Court on that point.

10. Next question is whether the appellant herein caused the injuries which led to the death of victim. Trial Court came to a conclusion that the injuries were inflicted by the appellant herein and that he had done so with the intention of causing death of the victim Geevarghese. To find out the correctness of the said finding, it is essential to scan through the material evidence in detail, especially that of PW2 and PW3 who are cited by the Crl.Appeal No.981/15 -:16:- prosecution as eyewitnesses.

11. PW2 Jayamol C. Chacko was the wife of the deceased. The appellant is her cousin's husband. According to her, on 18/03/2012 between 07.00 and 07.30 p.m., the appellant came to their house. At that time, herself and her husband were in the kitchen. Their younger son Jacob Richu was watching television sitting at the hall. PW3, their elder son also was standing near the kitchen. They heard the calling bell and simultaneous pushing of the door. Immediately, herself and her husband came to the hall. The appellant rushed towards her telling that she had spoiled the family life of the appellant. Suddenly, her husband interfered and asked the appellant to go away from the place. The appellant immediately took out MO1 knife which was hidden on his back and stabbed on the left elbow of the victim. Thereafter, he stabbed on victim's chest. The younger son went out of the house crying loudly and the elder son PW3 also reached to rescue the victim. The appellant then took out the knife from the chest of the victim and carrying the same, went out through the kitchen door. On the way, he dropped the knife and its cover in the Crl.Appeal No.981/15 -:17:- kitchen. Immediately, PW3 made a phone call to police station. Geevarghese somehow managed to reach the sit out and collapsed there. Neighbours gathered there hearing their cry and in the taxi brought by PW4, the victim was taken to Government Medical College Hospital, Kottayam. The body was covered with a white dhothi. Doctor examined Geevarghese and declared him dead. PW2 witnessed the incident with the help of two CF Lamps in the hall of their house. The appellant killed her husband on the wrong belief that his wife was being helped by them. She identified MO1 knife, MO2 cover of the knife made of PVC pipe and MO3 dress of the appellant which he was wearing at the time of incident. Her younger son suffered shock out of the incident and has not yet completely recovered. He is a little slow even then to understand matters and to respond to it.

12. PW3 John Christo is the elder son of the victim and PW2. He deposed that the appellant is the husband of his aunt Minimol C. Jose (PW8). On 18/03/2012 after 07.00 p.m., the appellant came to their house. He was standing on the side of the kitchen to take bath. His younger brother was watching Crl.Appeal No.981/15 -:18:- television. He heard the calling bell and started to reach the hall wearing a shirt. Before that, he peeped through the window on the side of the kitchen to the hall to see the visitor. Then he saw the appellant stabbing on the chest of his father. Immediately, he rushed to the hall to rescue his father. His brother went out and cried aloud. He tried to catch the appellant but it did not succeed. The appellant fell down. When PW3 began to call police through phone, the appellant tried to attack him and then he went out through the kitchen door. MO1 is the knife used by the appellant to stab his father. MO2 and MO3 were also identified. The appellant removed the knife from the chest of Geevarghese before leaving the place. Appellant left the knife in the kitchen. It is the version of PW3 that the appellant had inflicted injury on the left elbow of his father. His father was carried up to the road in a chair and from there, in a taxi, he was taken to Government Medical College Hospital, Kottayam. In hospital, his father was declared dead. He witnessed the incident with the help of two CF Lamps at the main hall. The appellant killed PW3's father under the erroneous belief that his parents were helping the wife of the Crl.Appeal No.981/15 -:19:- accused.

13. PW6 Rajeshkumar stated that he came to know about the murder of Geevarghese from the news papers on 19/03/2012. On the night in between 18th and 19th of March, he had seen the appellant passing through the road on the southern side of Kannamkulam House at Ponnappan city in 7th Mile. It was around 07.45 and 08.00 p.m. As it was dark, PW6 enquired the appellant where he was going. The appellant replied by calling the name of PW6. From the voice, he knew that it was the accused. The appellant is known to him as the person residing on the opposite side of the locality near his residence. The appellant was wearing pant and shirt at that time.

14. PW7 Saji K.Rajan deposed that he had seen the appellant while the appellant was conversing with PW6. It is his version that PW6 inquired the appellant where he was going and the appellant replied PW6 by calling his name. PW7 came to know about the murder on the next day from news papers.

15. PW8 Minimol C. Jose is the estranged wife of the appellant. She left the company of the appellant on 27/08/2010 Crl.Appeal No.981/15 -:20:- because of the physical torture of the appellant doubting her fidelity. The appellant used to assault her and her relatives. The appellant assaulted her father at Pampady Police Station. He had also beaten her grand parents at her brother's residence. All her academic certificates were destroyed by the appellant by setting fire. The appellant threatened that he would kill about 10 of her relatives and PW2 would be the first among them. The deceased is her cousin's husband. On 18/03/2012 at about 10.00 p.m., her cousin Princy informed her over telephone that Geevarghese was murdered. She identified MO1 and MO2 as that of the appellant's for he had possessed the same before she left his company in 2010.

16. Learned counsel for the appellant raised contentions in two angles. First of all, he contended that the appellant herein himself defended the case in the lower Court and hence he was obviously denied the opportunity to effectively conduct serious Sessions case like the one at hand which includes trial of offence under Section 302 of I.P.C. Court below committed serious error in allowing the same and hence, gross miscarriage of justice took Crl.Appeal No.981/15 -:21:- place. Constitution of India ensures right to life and personal liberty to all persons including an accused and he is entitled to have a fair trial and constitutional protection from being prejudiced by non-availability of a counsel to defence himself. This contention is a serious one and it need to be looked into at the very outset.

17. Art.21 of the Constitution of India reads as under:

"No person shall be deprived of his right to life or personal liberty except according to the procedure established by law."

18. Supreme Court through its vast array of judgments made visible the horizon of this crucial Article in the Constitution. In K.Anbazhagan v. Superintendent of Police (AIR 2004 SC

524), Apex Court observed that free and fair trial is sine qua non of Art.21 of the Constitution of India. In Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1369), Court made it clear that 'fairness' enshrined under Article 21 of the Constitution of India would be impaired, if the accused is not offered free legal aid, where he is too poor to engage a lawyer, provided the lawyer engaged by the State is not objected to by the accused. In Crl.Appeal No.981/15 -:22:- Khatri v. State of Bihar (AIR 1981 SC 928), Supreme Court further illuminated the said aspect by holding that accused need not apply for legal aid. A trial held without offering legal aid to an indigent accused at State cost will be vitiated and conviction will be set aside. Hence, whether the appellant was denied a fair trial by the Court below is to be answered primarily. We have gone through the records and order sheet of the trial Court to assess the factual scenario on the point. In the order sheet, certain observations were seen recorded by the learned Sessions Judge regarding engagement of counsel for the appellant to defend his case. Relevant portions of the proceedings paper are extracted below with date:

"02.06.2014: Accused produced from custody. Concerned counsel relinquished the vakalath of the accused. Accused submitted that he himself is to conduct his case. This court offer legal aid through Legal Service Authority. But he refused to accept. However, I am giving time to rethink. Produce the accused on 30.06.2014. For preliminary hearing to 30.06.2014.

25.09.2014: Accused is produced. He submitted that he may be provided legal aid. Address the Taluk Legal Service Committee, Kottayam for appointing a counsel. The accused is sent back. For production on 25.10.2014.

Crl.Appeal No.981/15

-:23:- 25.10.2014: Accused is produced. Adv.Sri. Rajagopal Padipurackal is appointed by the Taluk Legal Services Committee. For preliminary hearing under Section 227 Cr.P.C to 15.11.2014. Accused is sent back. For production on 15.11.2014.

13.01.2015: Case advanced on application. Counsel for the accused, who was appointed by the Taluk Legal Service Committee, Kottayam filed an application for issuing stop memo to the witness and to reschedule the case to another date as the accused did not hand over the copy of the Charge Sheet and the connected records to him. Accused is in judicial custody and it is submitted. In spite of repeated demands the accused did not give the same to the counsel and hence he is not in a position to get ready for examination of the witness. In these circumstances, the petition is allowed. Issue stop memo to the witness. Call on 3.02.2015. 3.02.2015: Accused is produced. He filed a petition stating that he does not require the assistance of the counsel and wants to conduct the case himself. Stop memo already issued to the witness and no witness are present. For further steps. Call on 6.03.2015. Accused is sent back. For production on 6.03.2015.

6.3.2015: Accused is produced. Accused is once again informed about his right to be defended by a counsel, considering the fact the allegation is u/s 302 IPC. But the accused submitted that he does not require the assistance of a counsel and wants to conduct the case himself. For further steps 4.04.2015. Accused is sent back. For production on 4.04.2015".

19. There is no doubt about the fact that the best person Crl.Appeal No.981/15 -:24:- who can defend a case against him as far as factual awareness is concerned is the accused himself. But he may not have the required skill set and knowledge of law and procedure to do the same effectively. It is the Constitutional responsibility of the Court to offer legal aid to the appellant. At the same time, it is the freedom of the appellant not to avail support of a lawyer and he has all the right to defend himself. There is no provision in the Constitution of India which allows the Court to interfere into the free will of an accused and compel him to choose. The moment the person concerned is fairly offered by the Court the assistance of an Advocate at the expense of the State, it is for the accused to avail the said benefit. He has all the freedom to reject the same as part of his right to freedom of choice. In the case at hand, initially, Adv.K.Jayasanker was engaged by the appellant himself to conduct his case. On relinquishment of vakalath, Adv.Sainullabdin was engaged and he also relinquished vakalath. Then, Adv.Rajagopal Padippurakkal was engaged through the Taluk Legal Service Committee, Kottayam to defend the accused/appellant. Adv.Rajagopal submitted before trial Court Crl.Appeal No.981/15 -:25:- that in spite of repeated demands from him, copy of charge-sheet and records were not handed over to him by the appellant. He expressed his inability to defend the appellant owing to the non- cooperation of the appellant. On 03/02/2015, the appellant filed a petition stating that he does not require the assistance of an Advocate and he wants to defend himself. On 06/03/2015, the appellant was again reminded by the learned Sessions Judge about his right to get defended by a counsel in a grave crime like the one at hand. He rejected the same and once again sought permission to defend himself. Above extracts and evidence on record would show that the appellant herein was given sufficient opportunity by the trial Court to avail assistance of a lawyer to conduct his case and advance his defence. But as it is palpable from the records, the appellant chose to defend himself without the aid of an Advocate though the same was consistently offered by the trial Court. Under such circumstances, we find no merit in the argument of the learned counsel for the appellant that the appellant was denied his right of free and fair trial by not providing assistance of a counsel.

Crl.Appeal No.981/15

-:26:-

20. His second line of argument was on the fallibility in evidence adduced by the prosecution. He questioned the credibility and reliability of so called occurrence witnesses and the probative value and sufficiency of evidence adduced by the prosecution to prove the case. According to him, the prosecution story is not believable. Motive for the crime is not proved by the prosecution. Even though his wife, PW8 is not in good terms with the appellant and also she is a close relative of the victim, her version regarding motive need to be taken with a pinch of salt. There is discrepancy in the time of occurrence while going through the evidence of PW2. According to PW1, the matter was informed by PW2 to him at about 07.00 p.m. But according to PW2, the incident took place between 07.00 p.m. and 07.30 p.m. Also, the width of injury no.1 alleged to have caused death is not corresponding to the width of the weapon. According to PW3, he had seen the incident through the window on the back wall of the hall. But in Ext.P4 mahazar or in Ext.P10 site plan, no window is seen marked. No attempt is made by the Investigating Officer to collect scientific evidence like finger prints from the spot or from Crl.Appeal No.981/15 -:27:- the alleged weapon. The appellant never absconded from the place. He was wrongfully arrested from Court of law while complying with the orders of Court.

21. But we are unable to accept his contentions. This is a case in which prosecution adduced direct evidence in the form of depositions of PW2 and PW3. It is settled law that in a case where occurrence witnesses are available, motive for the crime does not have much relevance. In this case, motive for the crime is clearly spoken to by PW2, PW3 and PW8. PW8 is the former wife of the appellant. Evidence further shows that he was on bail in connection with another murder case and that he was directed to sign at Pampady Police Station every week. The place of occurrence is the house of the deceased in which PW2 and PW3 are residing. Ext.P10 is the scene plan and Ext.P4 is the scene mahazar. Both PW2 and PW3 are natural and probable witness. The overt acts are clearly spoken to by PW2 and it is corroborated by PW3. Apart from minor omission regarding time of incident, nothing is brought out to discredit their evidence. No enmity is alleged against both these witnesses by the appellant. The Crl.Appeal No.981/15 -:28:- weapon was carried by the appellant to the house of victims. He criminally trespassed into the house with intent to commit offence of hurt and wrongful restraint. We do not find any force in the contention of the appellant as far as colour of the dress of accused, which was recovered. Whether it was coffee brown or black in colour are matters which do not attract any attention in the factual situation of the case. For PW2, her husband and for PW3, his father is sustaining stab injuries on his body at the hands of an aggressor who trespassed into the safety of their home. It is totally insensitive to expect this lady and child to remember the colour and design of the dress worn by the killer. Hence the said contention is only to be rejected totally.

22. MO1 sword and MO2 PVC pipe used to cover MO1 while carrying to the place of occurrence were recovered from the kitchen of the house of victim. The weapon was sent for chemical examination. Ext.P20 is the FSL report. It is found to be stained with human blood belonging to group exactly that of the deceased. The appellant was seen and recognized by voice by PW6 and PW7 near the place of occurrence within 15 minutes Crl.Appeal No.981/15 -:29:- after the occurrence. Evidence of PW8 and PW9 shows that MO1 sword belongs to the appellant and MO2 pipe was arranged by the appellant from PW9 which was prepared in such a way that it could be used as a cover to keep MO1 sword. On the date of incident, the appellant was found by PW10 till 05.30 p.m., in the toddy shop in which he was working which is near the locality of the place of occurrence. The fact that the appellant was absconding and was staying in a lodge at Palakkad is proved by the evidence of PW15 and the register of entry of his lodge is proved through him. Medical evidence adduced by PW21 would show that the victim died of incised penetrating injury sustained to chest. MO1 could be used to cause the said injury. Medical evidence and other scientific evidence fully corroborates the version of PW2 and PW3. DW1 is the younger son of the deceased and PW2. His version further strengthens the version of PW2 and PW3. That apart, the evidence adduced by the defence would not in any way support his case. Offences alleged against the appellant are proved beyond reasonable doubt. We do not find any error in the conclusions arrived at by the learned Crl.Appeal No.981/15 -:30:- Sessions Judge. We fully agree with the trial Court.

In the result, the appeal is liable to be dismissed and we do so.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                          N.ANIL KUMAR

Rp               //True Copy//                JUDGE

                  PS to Judge

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