Manoj vs State Of Kerala on 20 January, 2011

[Cites 10, Cited by 0]

Kerala High Court

Manoj vs State Of Kerala on 20 January, 2011

Appellant was the first accused in SC 1061/2006 on the file of the court of session, Thalassery division. He was convicted and sentenced under Sec.302 of the Indian Penal Code (IPC) by the additional sessions judge of the said court.

2. The prosecution case is stated below: It was at 6.30 p.m on 12.7.2002 the incident. The incident was the murder of one Mohammed Ismail Ravuthar (hereinafter referred to as the deceased or Ravuthar). He was a local leader of the Communist Party of India - Marxist (CPI(M) for short). The accused persons including the appellant belong to the Bharatheeya Janatha Party (for short, BJP). The accused persons had political grudge against Ravuthar. The appellant who was engaged in the sale of illicit liquor was arrested by the police on the complaint of Ravuthar. That too was a motive. The accused persons 2 Crl.A No.274 of 2011 formed themselves into an unlawful assembly. The common object of the assembly was to do away with Ravuthar. The members of the unlawful assembly rioted arming themselves with deadly weapons. The appellant cut Ravuthar from behind with a billhook. Ravuthar sustained grievous injury. He breathed his last at 11.55 p.m on the same day at the co-operative hospital, Thalassery.

3. The FI statement was given and the FIR was registered in the morning of 13.7.2002. Investigation was conducted and charge-sheet was filed. The second accused absconded. The case against the other accused persons was committed to the court of session. The learned sessions judge made over the case to the learned additional sessions judge for disposal.

4. The learned additional sessions judge after hearing the prosecution and the defence framed charges against the appellant and accused 3 to 13 under Secs 143, 147, 148, 149 and 302 of IPC. The charges were read over and explained to the aforesaid accused persons. 3 Crl.A No.274 of 2011 They pleaded not guilty and claimed to be tried.

5. PWs 1 to 18 were examined and Exts P1 to P25 were marked on the side of the prosecution. MOs 1 to 8 were also marked.

6. The learned trial judge on completion of the prosecution evidence examined the appellant and accused 3 to 13 under Sec.313 of the Code of Criminal Procedure (Cr.P.C). They denied the incriminating evidence and circumstances against them. The appellant filed a written statement of defence. The trial court found that there was no ground for acquittal under Sec.232 of Cr.P.C. The accused persons who were tried were therefore called upon to enter on their defence and adduce evidence.

7. DWs 1 and 2 were examined and Exts D1 to D16 were marked on defence side. Of those exhibits, Exts D2 to D14 are the contradictions in the statements given by some of the prosecution witnesses under Sec.161 of Cr.P.C.

8. The court below acquitted accused 3 to 13. The 4 Crl.A No.274 of 2011 appellant was acquitted of the charges under Secs 143, 147, 148 and 149 of IPC. He was convicted under Sec.302 of IPC. He was sentenced to imprisonment for life.

9. Heard Sri. P.S.Sreedharan Pillai, the learned counsel for the appellant. Heard the learned public prosecutor Sri.Nicholas Joseph.

10. The appellant was convicted for the murder of Ravuthar. The former allegedly cut the latter with a billhook from behind. The prosecution examined eighteen witnesses. PWs 1, 7 and 10 were examined as ocular witnesses. PW1 gave Ext P1 FI statement. PW16, sub-inspector of police, recorded it and registered Ext P21 FIR. PW11 was examined to prove one of the motives. PWs 3, 8 and 9 are medical doctors. PWs 3 and 8 prepared Exts P3 and P7 wound certificates respectively. PW9 conducted autopsy and issued Ext P8 certificate. PW17, additional sub-inspector of police, conducted inquest. Ext P2 is the inquest report prepared by him. PW2 attested the inquest report. PW14 is one of the nurses who was deputed to nurse Ravuthar in the 5 Crl.A No.274 of 2011 ambulance. PW4, village officer, prepared Ext P4 sketch of the scene of occurrence. PW6 is the photographer who photographed the scene of occurrence. Exts P6 series are the photographs. PW18, circle inspector of police, conducted part of the investigation. He prepared Ext P24 forwarding note for sending the material objects for chemical examination. PW15, circle inspector, conducted the lion's share of the investigation. He interrogated the witnesses and the accused persons. PW15 prepared Ext P5 scene mahazar. PW5 attested it. PW15 arrested the appellant. The former recovered MO1 billhook. It is alleged that MO1 was recovered on the basis of the disclosure made by the appellant and as taken out by him from the place of concealment. Ext P14 is the disclosure statement. Ext P9 is the seizure mahazar pertaining to MO1. PW12 attested Ext P9. PW15 seized MO2 shirt and MO3 dhothi of the deceased under Ext P10 seizure mahazar. PW12 attested that mahazar too. He identified MOs 1 to 3. MOs 7 and 8 are stated to be the lungi and shirt worn by the appellant at the time of the incident. It 6 Crl.A No.274 of 2011 is alleged that MOs 7 and 8 were seized as produced by the appellant. Ext P15 is the seizure mahazar pertaining to MOs 7 and 8. Ext P16 is the disclosure statement. PW13 who turned hostile to the prosecution denied having witnessed the seizure of MOs 7 and 8. PW16 filed the charge-sheet.

11. Ravuthar died in the night of 12.7.2002. It cannot be disputed that his death was homicide. That fact is not disputed also. The learned trial judge accepted the evidence of PWs 1, 7, 10 and 11 to find that Ravuthar sustained a severe incised wound on the back of his chest on 12.7.2002. The learned judge considered the medical evidence also. PW3 at the district hospital, Kannur at 9.20 p.m on 12.7.2002 and PW8 at the co-operative hospital, Thalassery at 11.25 p.m on the same day examined Ravuthar. PWs 3 and 8 issued Exts P3 and P7 wound certificates respectively. PW3 deposed that Ravuthar sustained an incised wound measuring 9/4 cms placed horizontally over the spine, back of chest. PW3 noted in Ext P3 and spoke in court that active bleeding 7 Crl.A No.274 of 2011 was present. PW8 testified that he saw a 7 cms long stab wound on the back of the chest of the victim and that the wound penetrated into the left chest. PW8 spoke to the condition of the patient when the patient was brought. There was no blood pressure, pulse or heart sounds, said PW8. The witness deposed that he tried to resuscitate, but the patient died soon. PW9 conducted post-mortem examination on the dead body of the deceased. Ext P8 is the autopsy certificate. PW9 spoke to the anti-mortem injuries found on the corpse. Those injuries as shown in Ext.P8 and as deposed to by PW9 were (i) a spindle shaped incised wound seen transversely 25cms below the C7 vertebra with 9cms x 3cms with 6cms deep on the left and 2cms deep on the right and 3cms deep in the middle,

(ii) chest wall penetrated through the 9th intercostal space with fracture of 9th rib close to its attachment to the vertebral body, (iii) fracture of the vertebral body of T9 vertebra on the left side exposing the spinal cord, (iv) vertebral artery injured on the left side and (v) underneath the left lung was penetrated through an 8 Crl.A No.274 of 2011 incised wound of 2 x 1 x 1 cms seen in the posterior aspect of the lower lobe of the left lung 3 cms above the inferior border. It was also spoken to by PW9 that the thoracic cavity contained around 300 ml of blood and a handful of clots. PW9 opined that the post-mortem appearances were consistent with death due to shock due to hemorrhage. On the aforementioned materials the learned trial judge concluded that Ravuthar died as a result of the injuries sustained by him. The said finding of the court below was not assailed either in the memorandum of appeal or at the time of hearing of the appeal. We confirm the finding of the court below. The prosecution proved that Ravuthar was murdered.

12. PWs 1, 7 and 10. They are the ocular witnesses. They and PW11 deposed that the members of RSS (Rashtreeya Swayam Sevak Sangh) used to perform their drill on the land of one Gopala Kurup. The said land is adjacent to the house of PW11 as stated by herself and the ocular witnesses. It is also the evidence of PWs 1, 7, 10 and 11 that PW11 wanted the venue of the drill shifted 9 Crl.A No.274 of 2011 to some other place as the drill disturbed the study of PW11's children. The aforesaid witnesses stated that PW11 sought the help of Ravuthar in the matter. The ocular witnesses stated that they, Ravuthar and CW7 visited the house of the 9th accused on 12.7.2002 and had a talk with him on the said issue. According to the ocular witnesses, the incident occurred while returning from the house of the 9th accused.

13. PWs 1, 7 and 10 narrated the incident. They spoke to the overt act of the appellant. The ocular witnesses stated that when they and Ravuthar reached near the Vadakkini Illam colony, the second accused stopped Ravuthar to talk to him. The witnesses said they moved further while the 9th accused was talking to Ravuthar. The ocular witnesses spoke that they heard an utterance from behind. The utterance was to kill Ravuthar. The witnesses looked back. They testified in one voice that they saw the appellant inflicting a cut on the back of Ravuthar with a billhook. It hit at the back of Ravuthar on the left side, said PWs 1 and 7. It was stated 10 Crl.A No.274 of 2011 by PWs 1 , 7 and 10 that when they rushed to Ravuthar, the appellant and the other accused persons fled from the scene of occurrence.

14. We have narrated the incident and the overt act of the appellant as narrated by PWs 1,7 and 10. There has been no much cross-examination on the overt act of the appellant. The prosecution alleges, and the ocular witnesses have deposed to, only one overt act. That perhaps is the reason why there was no much cross- examination on that aspect. The learned counsel for the appellant pointed out various other aspects to contend that the ocular witnesses could not be believed. We shall consider those aspects pointed out by the learned counsel.

15. The learned counsel Sri. Sreedharan Pillai argued that there was no consistency for the prosecution and its witnesses as to the precise time of the incident and the exact locale of the crime. Going by Ext P1 FI statement and Ext P21 FIR, the time of the incident was 6.30 p.m. PWs 7 and 10 stated that the incident occurred 11 Crl.A No.274 of 2011 at around 6.30 p.m. But PW1 stated that it was at 6.00 p.m. The learned counsel highlighted Ext D8 contradiction in the statement of PW10 recorded under Sec.161 of Cr.P.C. Ext D8 statement is that PW10 and others returned from the house of the 9th accused at 5 - 5.30 p.m. It was submitted by the learned counsel that in view of Ext D8 statement it should be taken that PW10 and others had taken 30 minutes to one hour to cover a distance of just 100 metres.

16. As has been indicated by us already, there has been no inconsistency as to the time of the incident in the FI statement, FIR and the depositions of PWs 7 and 10. The time was 6.30 p.m or thereabouts. The evidence of PW1 that it was at 6.00 p.m cannot be magnified as a material inconsistency capable of demolishing the prosecution case. Minor discrepancies are bound to happen when evidence is given after a few years (8 years in the present case). All the ocular witnesses deposed to the approximate time of the incident, and not the exact. They are not expected to do more than that. Who looks at the 12 Crl.A No.274 of 2011 wrist watch when an incident happens? What one gets from Ext D8 contradiction is also an approximate time. Ext D8 statement is not that PW10 and others left the house of the 9th accused exactly at 5.00 p.m or 5.30 p.m. The time mentioned in Ext D8 is 5-5.30 p.m, an approximate. The arguments advanced based on the evidence of PW1 as to the time of the incident and Ext D8 contradiction do not impress us.

17. We shall next consider the submission of Sri. Sreedharan Pillai that the prosecution failed to fix the exact place of occurrence. It is true that the ocular witnesses did not pinpoint a precise spot as the place of incident. A precise spot could be pinpointed as the place of occurrence in a case where the dead body lay at the exact spot. It was not so in the present case. Ravuthar was removed from the place of occurrence immediately after the incident in order to rush him to the nearest hospital. It is not possible in such a case for the ocular witnesses to spot the exact spot of incident. The depositions of PWs 1 and 10 suggest that Ravuthar was 13 Crl.A No.274 of 2011 interrupted on the temple road at a place from where a pathway leads to the house of one Chathkutty. The said two witnesses have called it a junction only because at that point the said pathway meets the temple road. The version in Ext P1 FI statement is also as deposed to by PWs 1 and 10. When PWs 1 and 10 have referred to the said pathway as the one leading to the house of Chathukutty, the FI statement refers to it as the one leading to the property of Chathukutty. That is indeed not a discrepancy, much less a material discrepancy. The ocular witnesses spoke to the vain attempt of Ravuthar to run to escape. The evidence of PW1 suggests that Ravuthar had even taken a few steps before he was attacked. Therefore it cannot be insisted on that the eyewitnesses should spot the exact point on the road as the place of occurrence. As rightly concluded by the learned trial judge the place of occurrence was the temple road near the pathway of Chathukutty. That inference is certainly possible from a reading of Ext P5 scene mahazar. The failure of the village officer (PW4) to indicate the 14 Crl.A No.274 of 2011 place of occurrence in Ext P4 sketch is not sufficient for the appellant to defeat the prosecution. There are of course a few discrepancies in the evidence of the eyewitnesses. Those discrepancies have been considered by the court below and found not material. Those discrepancies need to be taken note of seriously only if the ocular witnesses should pinpoint a particular spot on the road as the place of occurrence. In the light of the discussions we had above, the discrepancies pointed out by the learned counsel for the appellant and mentioned in the impugned judgment would only be minor in nature. As rightly submitted by Sri. Nicholas Joseph, the learned public prosecutor, even if the entire argument of the learned counsel for the appellant on the place of occurrence is accepted, the difference is only a few metres. We concur with and confirm the finding of the learned trial judge. The place of occurrence has been proved to be on the temple road near the meeting point of the road and the pathway of Chathukutty.

18. It has come out in evidence that a case has 15 Crl.A No.274 of 2011 been registered as crime no.390/2002 at the same police station. Exts D15 and D16 are respectively the certified copies of the scene mahazar and charge-sheet in the said case. Ext D15 mahazar was prepared and Ext D16 charge-sheet was filed by DW1, Dy.S.P by rank. Ext D16 charge-sheet pertains to an incident in which a person by name Sarada was attacked and injured. The time and date of that incident as shown in Ext D16 are 6.00p.m and 12.7.2002. That was the date of incident in the present case too. It was submitted that the appellant and his brother (the second accused) were eyewitnesses in the said case. Ravuthar who died in the incident in the present case is shown as the 6th accused in Ext D16. PWs 1 and 10 are also accused therein. The places of occurrence in Ext D16 case as shown in Ext D15 scene mahazar are the verandah of the house of one Janardhanan and the road on the rear side of that house. The said house is shown in Ext P4 sketch prepared by PW4. That house is indicated in Ext P4 sketch with the number 1 (one). It is in evidence that the aforesaid 16 Crl.A No.274 of 2011 Sarada is the wife of Janardhanan. It was argued before the trial court that the present case and D16 case should have been tried by one judge as case and counter-case. The learned trial judge rejected the said argument stating cogent reasons. We need not go into that question since no such argument was addressed to us. But the learned counsel for the appellant submitted that the real place of incident was shown in Ext D15 scene mahazar. It was also submitted that Ravuthar sustained injuries at the scene of occurrence shown in Ext D15. The learned counsel further submitted that the prosecution purposefully shifted the the place of occurrence to somewhere near the pathway of Chathukutty. If there was such a shifting of the place of occurrence, it would be a serious issue and the appellant could legitimately claim the benefit of doubt.

19. But nothing is available in the available evidence to show the presence of PWs 1 and 10 and Ravuthar at the place of occurrence shown in Ext D15 at 6.00 p.m or at any time on 12.7.2002. The only material produced on defence side was Ext D16 charge-sheet. A 17 Crl.A No.274 of 2011 charge-sheet is only the opinion of the investigating officer. It is not evidence at all, much less substantive evidence. The presence of any person at any place or his involvement in any crime cannot be proved by just exhibiting the charge-sheet and examining the author thereof, even applying preponderance of probability as the standard of proof. That apart, Ext D16 does not show anything other than that PW9, PW10 and Ravuthar were made accused in that case. Although 12.7.2002 is shown in Ext D16 as the date of incident, crime no.390/2002 was registered only on 15.7.2002 as seen from Ext D16 itself. That means Ravuthar was made an accused in crime no.390/2002 only three days after his death. PW1 admitted in cross-examination that himself and Ravuthar were made accused in the said case. But not even a suggestion was put to PW1 that the real place of occurrence was the verandah of the house of Janardhanan or the road on the rear side of the said house. No such suggestion was put to PWs 7 and 10 either.

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20. It is true that the time of incident shown in Ext D16 is 6.00 p.m. But that by itself is not decisive. PW15 who investigated the present case deposed that the incident alleged in crime no.390/2002 occurred after the occurrence of the incident in the present case. His such evidence is the only evidence available. DW1 who investigated Ext D16 case was examined after the examination of PW15. Still it was not elicited from DW1 that the incident in the case investigated by him was prior in point of time. For what we have stated in this paragraph and the immediately preceding paragraph we hold that there is no merit in the submission that the real place of occurrence was different or that the incident in the present case had any connection with the incident alleged in Ext D16.

21. Yet another submission of the learned defence counsel was about an inconsistency regarding the weapon used to inflict the injury. MO1 is a billhook. It was allegedly the weapon with which Ravuthar was cut from behind on the back of his chest. There has been no 19 Crl.A No.274 of 2011 inconsistency in the depositions of PWs 1, 7 and 10 on the weapon used. All of them spoke that the appellant cut Ravuthar from behind with a billhook. The witnesses asserted that they were able to identify the billhook used by the appellant to cut Ravuthar. The witnesses identified MO1 to be the said billhook. The inconsistency is only in the FI statement. The weapon made mention of by PW1 in the FI statement was an axe. To be precise, a small axe. The learned counsel for the appellant submitted that the weapon was changed by the prosecution after the receipt of the autopsy certificate. PW1 admitted in cross- examination that he stated to the police while giving the FI statement that the weapon used by the appellant was a small axe. PW1 explained why he stated so. According to him, he was tensed at the time of the incident and thereafter and in such a situation he mistook the billhook as an axe. We do not see anything to reject his such explanation. He added that he was convinced when he talked to PW7 over phone that the weapon used was a billhoolk and not an axe. The said evidence of PW1 does 20 Crl.A No.274 of 2011 not mean that the basis of his evidence that the weapon was a billhook was just the information passed on to him by PW7. What PW1's evidence on the point means is that he was convinced when talked to PW7 that the weapon used was a billhook and not an axe. The inconsistency in the FI statement has been satisfactorily explained by PW1. Therefore the said inconsistency does not ruin the prosecution case.

22. The incident was at about 6.30 p.m on 12.7.2002. Ravuthar died at 11.55 p.m on the same day. The FI statement was given on the next day morning at 6.30. The delay in giving the FI statement was 12 hours. The delay cannot be considered too long. The prosecution did not leave the delay unexplained. PW1 was certainly not expected to rush to the police station to give information leaving the injured person unattended. As a good friend of the victim what PW1 did was to do his best to rush the victim to a hospital. It is in evidence that PW1 and others took the victim to a local private hospital at Iritty, from there to the district hospital at Kannur and 21 Crl.A No.274 of 2011 finally to the co-operative hospital at Thalassery, from where the victim breathed his last. Even after the death of the victim PW1 had to remain in the hospital as stated by him till the relatives of the deceased arrived. Thereafter, without wasting time, PW1 went to the police station at Iritty and gave the FI statement. The prosecution explained the delay. An unexplained or improperly explained delay may be fatal to the prosecution, but not a well explained delay as in the present case. The delay is short and it is explained to the satisfaction of the judicial mind.

23. It cannot be contended that the registration of the FIR was delayed in order to get the details of the accused persons including the appellant. As the evidence goes, the victim was first rushed to Nirmala hospital at Iritty and then to the district hospital, Kannur. The doctor who examined the victim at the district hospital prepared Ext P3 wound certificate. It refers to the names of the appellant and a few other accused persons where the history and alleged cause of injury is recorded. PW3 who 22 Crl.A No.274 of 2011 is the author of Ext P3 wound certificate deposed to the said fact in court. He spoke that the history and alleged cause of injury noted was the attack by the appellant and the other accused persons whose names were mentioned in Ext P3. Thus, at the earliest opportunity, even before the giving of the first information and the registration of the FIR, the name of the appellant was stated to the doctor who examined Ravuthar. Therefore the argument that registration of the FIR was purposefully delayed to get the details of the appellant and others cannot be accepted.

24. The learned counsel Sri. Sreedharan Pillai had one more attack against Ext P1 FI statement. He submitted that PW1 was not the person who signed Ext P1. Ext D1 is the certified copy of the seizure mahazar in an abkari case in which the appellant was one of the accused. Ext D1 was attested by PW1. He admitted it in cross-examination. The signature of PW1 in Ext D1 is marked as Ext D1(a). That signature differs from the signature in Ext P1 F I statement. PW1 admitted the 23 Crl.A No.274 of 2011 difference in his two signatures. He further admitted that he usually use English alphabets to sign as signed in Ext D1, but he subscribed to Ext P1 not using English alphabets. But he denied the suggestion that the signature in Ext P1 was not his. He asserted that he did sign Ext P1 and that the signature in it was his own. He is the best person in the world to identify his signature. He usually signs in a different way does not go to a positive conclusion that his assertion that the signature in Ext P1 is his own is untrue. There is no reason also to forge his signature with his connivance. The learned trial judge accepted the evidence of PW1 that he was the person who signed Ext P1. We do not have a different view. We accept the assertion of PW1.

25. Another item of evidence relied on by the prosecution to establish the complicity of the appellant is the recovery of MO1 billhook allegedly at his instance. The evidence to be considered mainly is the deposition of PW15 who investigated the case. His evidence on the point is as follows: He arrested the appellant on 24 Crl.A No.274 of 2011 19.7.2002. On interrogation the appellant stated that he had kept the billhook in the bush near his house and that he would show it if he was taken there. At 10.30 a.m on 19.7.2002, PW15 and his police team along with the appellant reached the house of the appellant. He had taken out MO1 from the bush which was on the rear side of his house and handed it over to PW15.

26. The evidence of PW15 discussed above, if acceptable, would suggest that MO1 was recovered at the instance of the appellant, as produced by himself and based on his disclosure statement. PW15 said he prepared Ext P9 seizure mahazar at the time of seizure of MO1. It is also his evidence that Ext P14 is the extract of the disclosure statement. In cross-examination also PW15 maintained his stand. He stated in cross-examination that he recorded the disclosure statement of the appellant at 9.30 a.m on 19.7.2002 and that he proceeded to the house of the appellant along with the appellant. PW15 denied the suggestion that people assembled around the bush even before the appellant was taken there. PW15 25 Crl.A No.274 of 2011 asserted in cross-examination that the appellant himself had taken out the billhook from the bush. It was also the evidence of PW15 that he saw the billhook only when it was taken out from the bush by the appellant. The evidence of PW15 on the recovery of MO1 could not be demolished in cross-examination. There is no reason to reject his evidence on this aspect. According to PW15, he remembers to have seen blood on MO1 at the time of its recovery. But he admitted that he did not state so in Ext P9 seizure mahazar. It was also his evidence that he was aware that the blood on MO1 was a very important incriminating evidence. In these circumstances, his evidence that he remembers to have seen blood on MO1 is not acceptable. But rest of his evidence on recovery is believable.

27. The evidence of PW15 on recovery has been corroborated by PW12 who attested Ext P9 mahazar as a witness. PW12 deposed that he followed the police team and the appellant to the bush on the back side of the house of the appellant. PW12 stated that he saw the 26 Crl.A No.274 of 2011 appellant taking out the billhook from the bush and handing it over to the police. PW12 spoke to the preparation of Ext P9 seizure mahazar by the circle inspector and its attestation by PW12. He identified MO1 to be the said billhook. The witness withstood cross- examination. The evidence of PW15 has been sufficiently and satisfactorily corroborated by PW12.

28. The learned counsel Sri.Sreedharan Pillai has submitted that the recovery of MO1 on 19.7.2002 at the instance of the appellant is an unacceptable story. According to the learned counsel, the investigating officer had shown MO1 to PWs 7 and 9 on 14.7.2002. If that is true, the recovery should fall to the ground.

29. PW7 stated in cross-examination that he was questioned by the police only once and that it was two days after the incident. At that time, he said, he was shown the weapons and clothes by the police. He added that he was shown the material objects at a shop at a place called EMS Nagar. It was also stated by PW7 that he gave statement to the police and identified the material 27 Crl.A No.274 of 2011 objects. The evidence of PW7 in cross-examination referred to above cannot be interpreted to mean that the witness identified MO1 before the police officer on 14.7.2002, that is, before its recovery on 19.7.2002. The witness was referring to 'weapons' (plural is used) and not a particular weapon or MO1. No specific question was put to PW7 that what he identified two days after the incident was MO1. The witness also did not say that he identified MO1 on 14.7.2002. Questions were put in cross- examination to PW7 without referring to MO1. None of the questions put to PW7 in this regard referred to MO1 or billhook. It was specifically put to PW7 that the police did not record in his statement that he identified the 'weapon' (singular is used) and the clothes. That question itself suggests that no statement of PW7 was recorded by the investigating officer suggesting identification of any weapon by the witness. The investigating officer (PW15) was asked in cross-examination whether PW7 gave a statement that he was shown the weapons and clothes. PW15 replied that PW7 did not give any statement 28 Crl.A No.274 of 2011 identifying any weapon. The said evidence of PW15 proves that PW7 did not give any statement identifying any weapon. Thus, the evidence of PW7 that he gave such a statement and identified any weapon or weapons is proved to be a mistake committed by him. Such a mistake will not take the appellant to the intended destination.

30. PW7 in cross-examination stated further that he saw the lungi and shirt of the appellant at the shop of M.C.Kunjiraman at EMS Nagar on 14.7.2002. The witness who stated so did not state that he saw MO1 or any weapon at the shop of M.C.Kunjiraman on 14.7.2002. Therefore the said evidence of PW7 is also not useful to the defence to destruct the evidence on recovery of MO1.

31. PW9 who conducted post-mortem examination spoke that he was shown MO1 by the investigating officer. The former stated that he could not say the exact date or day on which it was shown to him. He added that the investigating officer might have shown MO1 one or two days after the post-mortem examination. The said 29 Crl.A No.274 of 2011 statement of PW9 does not mean that MO1 was shown to him exactly one or two days after the autopsy. It is so particularly when he made it clear that he was unable to give the exact date or day. The evidence of PW9 read in its entirety does not suggest that MO1 was shown to him on any day prior to the date of its recovery. We hold that the evidence in the case does not suggest that MO1 was shown to any witness before 19.7.2002.

32. The disclosure statement of the appellant deposed to by PW15 and the consequent recovery of MO1 are admissible in evidence only if Sec.27 of the Indian Evidence Act is attracted. If Sec.27 is not attracted, the disclosure statement is hit by Sec.25 of the Evidence Act and Sec.162 of Cr.P.C. In that event, recovery of MO1 is quite insignificant. What is admissible under Sec.27 of the Evidence Act is not the mere recovery of an object, but the discovery of an incriminating fact. The incriminating fact which the prosecution should prove is that MO1 was the weapon with which the fatal injury was inflicted on Ravuthar.

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33. PWs 1, 7 and 10 assertively deposed that they were able to identify the weapon used by the appellant to cut Ravuthar. The three eyewitnesses identified MO1 to be the said billhook. We do not see anything to suspect the identification of MO1 made in court by the eyewitnesses. The ocular witnesses proved that MO1 was the weapon used by the appellant to cut Ravuthar.

34. Ravuthar before his death was examined by PWs 3 and 8 at different hospitals. The two doctors gave evidence that the injury seen by them on the person of Ravuthar could be caused by MO1. PW9 who conducted autopsy had noted and deposed to the internal injuries as well. He stated that those injuries could be caused by MO1. Suggestions were put to PWs 3, 8 and 9 in cross- examination that the injury or, as the case may be, the injuries seen by them could not be caused by MO1. Although PWs 3 and 8 stated that they were not sure, PW9 asserted in cross-examination too that the injuries noted by him could be caused by MO1. There is thus sufficient medical evidence to find that the injuries sustained by 31 Crl.A No.274 of 2011 Ravuthar could be caused by MO1.

35. Ext P22 report of chemical examination proves the presence of human blood on MO1. It is not possible to agree with the defence counsel that Ext P22 should be discarded since the blood group was not ascertained. Ext P22 suggesting that human blood was detected on MO1 should be taken as an incriminating evidence against the appellant when read with the evidence of the ocular witnesses identifying MO1 and the evidence of PW9. We find that MO1 was the weapon with which the appellant cut Ravuthar from behind. Thus, the recovery of MO1 at the instance of the appellant did discover an incriminating fact against him. There has been discovery of an incriminating fact against the appellant within the meaning of Sec.27 of the Evidence Act. The recovery of MO1 at the instance of the appellant and based on his disclosure statement is an incriminating evidence against him.

36. The prosecution alleges a twin motive for the crime. One of the motives alleged is the political rivalry 32 Crl.A No.274 of 2011 between the CPI(M) and the BJP. Admittedly the appellant belongs to the BJP - RSS and Ravuthar belonged to the CPI (M). The political rivalry between the CPI(M) and the BJP- RSS is not a secret, but that rivalry was not a motive in the present case. As stated by the learned trial judge, Ravuthar and his companions had a peaceful discussion with the 9th accused just before the incident. Therefore the learned trial judge found that the political rivalry was not a motive for the appellant to attack Ravuthar. We do not find any material to disturb the said finding of the trial court.

37. The other motive alleged by the prosecution is that the appellant had grudge against Ravuthar since the former was arrested in an abkari case on the complaint given by Ravuthar. Some evidence was adduced on the prosecution side to establish the said motive. PWs 1, 7 and 10 stated that the appellant was involved in the sale of illicit liquor and that he was arrested on the information given to the police by Ravuthar. Ext D1 seizure mahazar suggests that the appellant was prosecuted in an abkari 33 Crl.A No.274 of 2011 case. On the above materials, the learned trial judge concluded that the prosecution proved one of the motives alleged by it.

38. We are afraid, we are unable to confrim the said finding of the court below. Ext D1 only suggests that the appellant was prosecuted in an abkari case. It does not suggest that the appellant was prosecuted on the complaint filed or information given by Ravuthar. Going by the recitals in Ext D1, the abkari offence was detected during the routine vehicle check. No scrap of paper has been produced by the prosecution to prove that any complaint was made or information was given by Ravuthar to detect any abkari offence against the appellant. PW1 stated in cross-examination that the motive he understood was that Ravuthar gave the information in Ext D1 abkari case. The said statement of PW1 in cross-examination suggests that he had no direct knowledge that the said case was registered on the information or complaint given by Ravuthar. PW1 spoke in cross-examination that he was a witness in the said 34 Crl.A No.274 of 2011 case, but not Ravuthar. The statements given by PWs 7 and 8 in court that the abkari case was initiated on the complaint of Ravuthar have been proved to be omissions amounting to contradictions within the meaning of the explanation to Sec.162 of Cr.P.C. Therefore the evidence of them in court on motive cannot be relied on. We find that the prosecution failed to prove the motives.

39. But, the failure of the prosecution to prove any of the motives alleged by it is not fatal to it. The prosecution could establish by strong evidence beyond a reasonable doubt that the appellant did commit the murder of Ravuthar. We have already discussed such evidence. When the evidence is so strong, motive loses its significance. It has been held so by the apex court. The decision is Bipin Kumar Mondal vs State of West Bengal (AIR 2010 SC 3638).

40. We now conclude. The prosecution produced reliable evidence and proved the guilt of the appellant beyond a reasonable doubt. We therefore confirm the conviction of the appellant under Sec.302 of IPC. The 35 Crl.A No.274 of 2011 sentence imposed on him has been the minimum sentence under Sec.302 IPC. The appeal is devoid of merit. It deserves only a dismissal.

41. Dismissed.

P.R.Ramachandra Menon Judge A.M.Babu Judge sks

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