Pushpakaran v. Kerala State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 11TH DAY OF JUNE, 2019 / 21ST JYAISHTA, 1941** ## **CRL.A.No. 401 of 2015** **AGAINST THE ORDER IN CP 48/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA** **AGAINST THE JUDGMENT IN SC 226/2013 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, NORTH PARAVUR DATED 13-03-2015 CRIME NO. 2324/2011 OF ALUVA EAST POLICE STATION , Ernakulam** ## **APPELLANT:** **PUSHPAKARAN AGED 52 YEARS S/O. KUMARAN, CHACKALAKKAL HOUSE, EDAYAPPURAM, ALUVA** **BY ADV. SRI.RAJIV NAMBISAN** **RESPONDENT:** **KERALA STATE REP. BY CIRCLE INSPECTOR OF POLICE, ALUVA POLICE STATION** ## **BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2019, THE COURT ON 11.06.2019 DELIVERED THE FOLLOWING:** CRL.A.NO.401 OF 2015 :-2-: ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** This appeal arises from the judgment and order on sentence dated 13.3.2015 passed by the Additional Sessions Court, North Paravoor in S.C.No.226/2013, for the offence punishable under Section 302 of the Indian Penal Code (for short 'IPC'). The trial court convicted and sentenced the appellant to undergo imprisonment for life and to pay fine of Rs.1 lakh, in default to undergo rigorous imprisonment for one year more. The accused is the appellant. 2. Prosecution case in brief is hereinbelow:- The accused had been entertaining a grudge against the deceased for two reasons. Firstly, at the time when the family properties were partitioned, the accused was not given his due share. Secondly, the deceased Jayachandran was the owner and in possession of a scooter, which the accused had been using for a considerable long period of time. Subsequently, owing to the disagreement between them, the deceased Jayachandran has refused to give the scooter to the accused for a ride and that therefore, the accused was on inimical terms with the deceased. Out of the above enmity, with an intention to do away with the aforesaid Jayachandran, on 20.8.2011 at 7.45p.m at Edayappuram on the eastern side of Thottumugham-Keezhmad Public road,near the CRL.A.NO.401 OF 2015 :-3-: residential building bearing Door No.XVII/136 belonging to one Sujatha, the accused stabbed on the right and left chest of Jayachandran and also inflicted stab injuries on various parts of the body which resulted in his death. 3. PW1 is an eye witness to the occurrence, who lodged Ext.P1 First Information Statement before PW14, the Station House Officer, Aluva East Police Station. On the strength of Ext.P1, PW14 registered Ext.P10 First Information Report for the offence punishable under Section 302 of IPC. PW16 conducted major part of the investigation and recovered MO1 weapon on information furnished by the accused. PW16 prepared Ext.P6 inquest report on 21.8.2011 in the presence of witnesses. He also prepared Ext.P3 Scene Mahazar and recovered MO2 handbag from the scene of occurrence. On that day, PW11 Scientific Assistant examined the place of occurrence and took custody of four items including blood stained samples from the scene of occurrence as per Ext.P9 mahazar. PW16 identified the accused and arrested on 21.8.2011 at 8 a.m. from Aluva GTN. After his arrest, PW16 recorded the confession statement of the accused. According to PW16, the accused furnished Ext.P15 information that he had kept the knife inside the dicky on the rear side of the autorickshaw in front of his house. Based on the confession statement, PW15 proceeded to the house of the accused as led by the accused and recovered MO1 knife. Subsequently, CRL.A.NO.401 OF 2015 :-4-: the accused was produced before the learned Magistrate. The learned Magistrate remanded the accused to judicial custody. PW.15 questioned the witnesses and recorded their statement to prove the occurrence and PW17 laid chargesheet against the accused. 4. The case was taken on file as CP NO.48/2011 before the Judicial First Class Magistrate Court-I, Aluva. After complying with the usual formalities, the learned Magistrate committed the case to the Sessions Court, Ernakulam on 29.1.2013. The learned Sessions Judge took cognizance of the offence under Section 302 of the IPC and registered the case as SC No. 226/2013 from where the case was made over to the Additional Sessions Court-I, North Paravur for trial and disposal. 5. The accused entered appearance before the Sessions Court through a counsel of his choice. He was enlarged on bail on 21.10.2011. After having heard both sides, the trial court framed charge against the accused for the offence punishable under Section 302 of IPC. The accused pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of its case. The prosecution examined PWs.1 to 17 on prosecution side and got marked Exts.P1 to P20 and 15 material objects as MOs.1 to 15. 6. After the closure of the prosecution evidence, the CRL.A.NO.401 OF 2015 :-5-: accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. His defence is one of total denial. 7. The learned Additional Sessions Judge, who conducted the trial, did not deem fit and proper for recording an acquittal under Section 232 of Cr.P.C. The accused was therefore called upon to enter on his defence and to adduce evidence that he might have in support thereof. The accused examined DWs. 1 to 9 and marked on his side Exts.D1 to D11. 8. We heard Sri.Rajiv Nambisan,the learned counsel for the appellant and Sri.Nicholas Joseph, the learned Public Prosecutor appearing on behalf of the State. 9. The following points arise for consideration in this appeal:- - 1.Whether the prosecution has succeeded in proving that Jayachandran died as a result of sustaining homicidal injuries on 20.8.2011 about 7.45 pm at Edayappuram on the eastern side of Thottumugham-Keezhmad Public Road as alleged? - 2.Whether the prosecution has succeeded in proving that the accused intentionally or knowingly caused the death of Jayachandran by stabbing him to death? If so, has he committed the offence of murder punishable under Section 302 CRL.A.NO.401 OF 2015 :-6-: of IPC? - 3.Are the conviction entered and sentence imposed against the appellant sustainable? 10. The fact that Jayachandran died as a result of homicidal stab injuries sustained by him on 20.8.2011 at about 7.45 p.m. is undisputed. As indicated earlier, in Ext.P6 inquest report prepared by PW14 in column No.7 and 8a, PW14 noted the fatal injuries on the chest of the deceased. In column No.11 in Ext.P2 is pertaining to the apparent cause of death. PW14 noted that deceased died as a result of the stab injury inflicted by the deceased with a knife. 11. PW15 Dr.Liza John, Assistant Professor and Deputy Police Surgeon of Forensic Medicine, Medical College Hospital, Alappuzha conducted autopsy on the body of the deceased and prepared Ext.P11 Postmortem Certificate. The antemortem injuries and other findings recorded in Ext.P11 are the following:- **==> picture [154 x 12] intentionally omitted <==** > 1) Incised wound, 12x3x2.5 cm(Bone deep) horizonal on the right side of front of chest, its inner end being 4cm outer to midline and 12 cm below collor bone, the muscles of the chest wall were cleanly cut exposing the ribs and intercostal muscles. > 2) Incised penetrating wound, 4x1.8 cm, obliquely placed, on the left side of front of chest, its upper inner sharply cut end being 11cm below collor bone and 7cm outer to midline and its lower outer end was blunt. It entered the chest cavity by making an incised wound 4.5x0.1 cm, obliquely through the 4[th] and 5[th] intercostal space on left side, cleanly CRL.A.NO.401 OF 2015 :-7-: cutting the 5[th] rib, incising the medial and lower border of upper lobe or left lung (4x1x1 cm) and terminated in the cavity left ventricular 3cm above its apex. The track of the wound was directed inwards, upwards and backwards for a total minimum depth of 4.1 cm. The left lung was partially collapsed pale, and left chest cavity contained 1.5 cm of fluid blood and 200 gm. of blood clot. Right chest cavity contained 300 ml.of fluid blood. 3) Incised wound 3x1x0.5cm oblique on the outer aspect of left hip 3cm below its top and 17cm outer to midline. 4) Incised wound 8x3x3 cm oblique on the outer aspect of left forearm its lower outer end being 12 cm below the elbow, the muscles, tendons and ligaments were cleanly cut. - 5) Incised wound 2x1x0.1cm on the outer aspect of left knee. - 6) Abrasion 4x0.4cm oblique on the inner aspect of left forearm, its upper inner end 2cm below elbow. ## C.Other finding Skull and scalp was normal and intact. Brain was pale and odemalous. Air passages and lungs were pale (vide injury). Stomach was full with partially digested rice in a fluid medium, no unusual smell.mucosa pale. Urinary bladder was empty. Spienic capsule was shrunken; external genetalla was normal. All other internal organs were pale; otherwise appeared to be normal. The blood group of the deceased was detected to be B Rh Positive at the Blood Bank, Medical College Hospital, Vandanam. A sample of blood and viscera were preserved and sent for chemical analysis. Nail clippings were handed over to the investigating officer as per the request. ## - Opinion as to cause of death: Death was due to the penetrating injury sustained to the chest (injury No.2)” 12. PW15 stated before the trial court that death was due to the penetrating injury No.2 sustained in the chest. When examined before court, PW15 opined that injury No.2 is a penetrating deep injury which has entered into the chest cavity through the left side and has gone deep CRL.A.NO.401 OF 2015 :-8-: entering into the lungs and heart which has led bleeding into the chest cavity. According to PW15, this injury alone is sufficient to cause death in the ordinary course of nature. 13. PW1 is the eye witness to the occurrence who lodged Ext.P1 First Information Statement before the Police. He stated that the accused and deceased are none other than the brothers of his father. On the fateful day where the occurrence took place, PW1 was riding his motor cycle through the Edayappuram-Keezhmadu Public Road. When the bicycle reached the occurrence place, he found the deceased on his feet through the side of the road. On seeing the deceased, PW1 stopped his motorcycle and had a brief chat with him. While so, the accused- an autorickshaw driver was found driving his autorickshaw from north to south and the autorickshaw crossed PW1 and the deceased. Immediately thereafter, PW1 found the accused returning back and abruptly stopped the autorickshaw close to them. Suddenly, he rushed out the autorickshaw holding MO1 knife in his hand uttering that the deceased was the cause of everything and stabbed the deceased with MO1 knife. Out of danger and fear, PW1 cried aloud, sought for aid and ran towards the junction on the south seeking help from the people. On hearing his hue and cry, people from the area ran towards the place of occurrence along with PW1. On CRL.A.NO.401 OF 2015 :-9-: seeing the people, the accused immediately got into the autorickshaw and drove towards the south. According to PW1, with the assistance of PWs.2 to 4, he took the deceased to the nearest hospital at Karothukuzhy. The Doctor examined the deceased and declared that the deceased passed away. As suggested by the hospital authorities, PW1 went to the Police Station and lodged Ext.P1 First Information Statement. 14. It is a fact that PW1 is the only one occurrence witness to prove the prosecution case. PWs.2 and 3 were cited to prove the occurrence. However, they turned hostile to the prosecution. PW2 Kamalan stated before court that he took the deceased to the Karothukuzhy hospital along with PW1. He also stated that he knew the accused as an autorickshaw driver. He knew the deceased Jayachandran as well. He further stated that on 20.8.2011, around 7.45 pm. the occurrence took place. At that time, he was going to the town hiring an autorickshaw of his father's brother. While so, according to PW2, he heard a hue and cry from the outer portion of the service station. Immediately, he rushed towards south where he could see deceased Jayachandran found slanting towards the wall. While so, his father's brother brought an autorickshaw and with the help of his father's brother, PW1 Renjith took the deceased to the hospital. Though PW2 turned hostile to the CRL.A.NO.401 OF 2015 :-10-: prosecution, he supported the fact that the deceased sustained injury, PW1 cried aloud and with the help of PW2's father's brother, the deceased was taken to the Karoth Hospital. 15. PW2's evidence is supported by PW4 also. He also turned hostile to the prosecution. Nevertheless, he stated that on 20.8.2011 around 7.45 p.m, while he was talking to PW2, he heard a cry from the northern side and on hearing the cry, he rushed to the spot in an autorickshaw where he could see the deceased found slanting towards the wall. He further stated that PW1 cried aloud and he also assisted PW1 to take the deceased to the hospital. 16. PW5 is none other than the uncle of the deceased. In connection with the marriage of his brother's daughter, PW5 went to Edayappuram for inviting the relatives. He reached Edayappuram after two days from the date of occurrence. While so, he noticed a Police vehicle coming to the house of the accused, which is just 15 meters away from the residence of the deceased. According to him, the Police brought him to his house and took him to the courtyard of the house, where the autorickshaw was parked and from the dicky of the autorickshaw, he saw the accused tracing out MO1 weapon stained with blood. During examination, MO1 was shown to PW5. He identified MO1 knife CRL.A.NO.401 OF 2015 :-11-: with a black handle. In addition to MO1, MO5 cover of the knife and MO6 plastic cover were also taken from the dicky of the autorickshaw. Upon recovering MO1,MO5 and MO6, the Police prepared Ext.P5 mahazar on the spot wherein PW5 is a signatory. The other witness namely Janardhanan in Ext.P5 is none other than the brother of PW5. The evidence let in by PW5 would indicate that both PW5 and Janardhanan were not residing adjacent to the place from where the Police recovered MO1,MO5 and MO6 respectively. 17. PW6 was examined to prove the inquest of the deceased at the hospital and the seizure of dress materials owned by the deceased. Pws.7 and 8 were examined to identify Mos.2 to 4 and MO8 and MO11 dress materials worn by the deceased at the relevant time, the bag, tiffin box etc. 18. The accused was arrested on 21.8.2011 by PW16 and he prepared Ext.P12 arrest memo. PWs.16 and 17 conducted investigation in this case and filed the chargesheet. 19. On a consideration of the entire evidence and materials on record, the trial court was of the view that the prosecution had succeeded in proving the following points beyond reasonable shadow of doubt. 1. PW1 is a reliable witness and his evidence can be acted upon. Although PWs.2 and 4 turned hostile to the prosecution, their evidence corroborates with CRL.A.NO.401 OF 2015 :-12-: the evidence let in by PW1. The presence of the deceased and PW1 at the place of occurrence are corroborated by the evidence of PWs.2 and 4. 2. The stab injuries inflicted on the deceased is supported by the medical evidence. 3. The deceased underwent a homicidal death. 4. Section 134 of the Evidence Act does not require any specific number of witnesses to prove a particular fact. 5. MO1 knife was recovered in accordance with Section 27 of the Evidence Act on the basis of the confession statement of the deceased. 6. The accused committed the act of stabbing with a definite motive. 7. After committing murder on the deceased, the accused escaped from the scene of occurrence. 8. PW15 stated before court that the injury found on the deceased was antemortem and is sufficient to cause death. 9. PWs.1 and 4 took the deceased to the hospital. 10. The accused brought MO1 knife with a design to cause the death of the deceased. 11. Evidence tendered by DW1 to DW9 and Exts.D1 to D11 are not sufficient to establish that the case was foisted against the accused falsely. 20. We have been taken through the entire documents oral and documentary evidence adduced by the prosecution and accused at length. Challenging the appreciation of evidence and finding recorded by the learned trial judge, the learned counsel Sri.Rajiv Nambisan appearing on behalf of the appellant assailed various aspects, which are narrated hereinbelow. CRL.A.NO.401 OF 2015 :-13-: 1. The appellant is innocent. 2. He was falsely implicated by PW7, who is none other than his elder brother and PW1, the son of PW7. 3. When the prosecution canvassed a conviction relying on the solitary evidence of an eye witness and if he is a chance witness, interested in the prosecution case and inimical to the accused, then his evidence has to be scrutinised carefully and if possible, court has to search for corroboration. The trial court has not followed the settled legal principles. 4. PW1 is a chance witness interested and is inimical with the appellant. 5. PW5 Sobhanan who was cited to prove the recovery of MO1 who is a chance witness. Further, he is none other than the uncle of the deceased and is residing more than 18kms from the place of occurrence. 6. No independent witnesses were either cited or examined by the prosecution to prove the occurrence. 7. PW1 and PW7 stated before court that they saw the appellant in the police custody long prior to his arrest. The arrest of the accused was illegal. 8. The deceased as well as the appellant belong to same blood group, more precisely B positive. 9. Investigating agency failed to make a request to the Forensic Science Laboratory to determine the age of the blood. 10. MO1 was recovered from an autorickshaw owned by one Ashraff as per Ext.D7 R.C.particulars. The R.C. owner was not cited as a witness. 11. The omission on the part of the investigating CRL.A.NO.401 OF 2015 :-14-: agency to collect finger prints from MO1 weapon is fatal to the prosecution. 12. The alleged motive is not proved. 13. The defence evidence was not considered. 21. DW1 was examined to prove Ext.D3 Medical Certificate maintained in the Government Hospital, Aluva. DW1 was working as Superintendent of Government District Hospital, Aluva. He produced the Accident Register-cumWound Certificate issued to one Pushpakaran, Chakkalakkal House, Edayappuram. Ext.D3 is the Page No.65 of the register where the injuries of Pushpakaran were noted. As per Ext.D3, Pushpakaran was admitted on 20.1.2005 at 9a.m, complaining pain chest on account of the assault made by his brother Purushothaman. Purushothaman is none other than the father of PW1. PW1 adduced evidence to show that the stab injury caused to the deceased was inflicted by the accused. His evidence is reliable as rightly held by the court below and the evidence cannot be discarded on the strength of Ext.D3 in the year 2005. Ext.D3 would go to show that there was an allegation of assault by accused against PW7. To put it clearly, this would go to show that PWs.1 and 7 has previous enmity with the accused. Nothing more and nothing less. 22. DW2 was the S.I.of Police, Aluva in 2014. It is stated before court that he could not trace out complaint CRL.A.NO.401 OF 2015 :-15-: dated 12.8.2010 filed by Pushpakadhan. However, he added that on 19.8.2010, the register maintained at the East Police Station, Aluva would show that consequent to the complaint filed by Pushpakaran, Purushothaman and his son Renjith were summoned to the Police Station and warned not to abuse the complainant in future. Renjith is PW1 and Purushothaman is his father. The alleged assault took place way back in 2010. It has no nexus or connection with the occurrence. Merely because the accused filed complaint against PWs.1 and 7 before the Police earlier, it could not be right in holding that the evidence of PW1 and PW7 is unbelievable for that reason. PWs.1 and 7 adduced evidence to show the purpose of their visit and the circumstances warranting to be there. Going by the evidence of PWs.1 and 7, the reasons offered by PWs.1 and 7 are genuine and trustworthy. 23. One of the contentions taken by the accused is that on the date of occurrence, there was no light adjacent to the electric post, where the occurrence took place. DW3 was a member of the Panchayath representing 18[th] Ward of Keezhmad Panchayath wherein the occurrence took place. On a query made by the learned counsel for the appellant, DW3 clearly stated that she did not receive any complaint that there was no light in and around the occurrence place immediately after the murder of the deceased. Merely CRL.A.NO.401 OF 2015 :-16-: because electrical bulbs were changed frequently by the Panchayath, it could not be sufficient to discard the oral evidence adduced by the eye witness that he witnessed the occurrence in the light emanated from the street light. 24. To prove enmity, the defence examined DW4. DW4 was the Sub Inspector of Aluva Police Station during the year 2014. He stated that he registered a case against PW7 on the basis of a complaint submitted by Rajani, the wife of the accused alleging offences under Sections 341,324,427 read with 34 of IPC against Purushothaman and Renjith as per Ext.D6 and D6(a). On the strength of the evidence let in by DWs.1,2 and 4, it is contended that there existed previous enmity between PW1 and the accused and as such, evidence of PW1 cannot be believed. As indicated earlier, the enmity between the accused and PWs.1 and 7 are not sufficient to discard their evidence. Their evidence is supported by medical evidence and recovery effected by the investigating officer in accordance with the provisions of Section 27 of the Evidence Act. 25. Yet another contention taken by the learned counsel for the defence is that the ownership over the autorickshaw, where the recovery of MO1 knife was made by the investigating officer, is not proved. DW5 was examined to prove that the autorickshaw bearing Regn.NO.KL-07 S 1845 alleged to have parked in front of the courtyard of the CRL.A.NO.401 OF 2015 :-17-: accused was owned and possessed by one Ashraf at Aluva. Ext.D7 R.C.particulars were produced to show that during the period 2010, Ashraf continued as owner. However, it was brought out that the law does not debar from possessing a vehicle other than the registered owner. DW5 admitted that such a possession is not legally barred. In view of the above circumstances, it is difficult to hold that ownership of the autorickshaw is material to prove recovery under Section 27 of the Evidence Act. In the case on hand, recovery was effected by the investigating officer based on the confession statement given by the accused and as led by him in the presence of witnesses. 26. One of the contentions taken by the appellant is that the appellant was a chronic heart patient, who underwent angioplasty. To prove the said fact, DW6 Casualty Medical Officer, Lisie Hospital, Ernakulam was examined. He produced Ext.D8 Discharge Certificate to show that the accused was admitted on 27.3.2014 and discharged on 1.4.2014 issued by Dr.K.M.Oommen. He also stated that Ext.D9 discharge summary would indicate that accused was treated for Myocardial Infarction and angioplasty was done. His evidence would show that the accused had been undergoing treatment since 2009. It is true that DW6 was not the Doctor actually treated the patient who made entries in Exts.P8 and P9. Still, he was CRL.A.NO.401 OF 2015 :-18-: familiar with the signature, who made entries in Ext.P8 and P9 and the documents were still available in the hospital. The contention that mild Myocardial Infarction, if suffered by the accused is a ground to hold that the accused would not be in a position to suffer mental strain and physical strain and had no sufficient strength to attack the victim on the date of occurrence is against common sense. Myocardial infarction, if treated conservatively, would regain vigour and vitality of an individual and it has no nexus or connection with his ordinary pursuits in daily life. It is not a ground to hold that the accused was incapable of attacking the victim on the date of occurrence. Such a presumption is unknown to law. Hence this part of evidence is unacceptable. 27. DW7 was working as Lab Technician at Medicare Diagnostic Centre at Aluva. On 15.11.2011, DW7 examined the blood of one Pushpakaran and located his blood group as B positive. The contention is that the blood group of the accused is similar to that of the deceased and the blood grouping done by the investigating officer is not sufficient to prove that MO1 knife contained the blood of the deceased. During trial or during examination under Section 313 Cr.P.C., the accused had not raised any contention that he sustained injury in the very same occurrence. Under the circumstances, the blood group of CRL.A.NO.401 OF 2015 :-19-: the accused is not relevant in this case. 28. DW8 was working as Casualty Medical Officer at Lisie Hospital, Ernakulam on 27.3.2014. The evidence of DW8 would go to show that on that day, he had examined Pushpakaran and issued Ext.D8 Discharge Certificate stating that the patient was given the option of Angioplasty or Thromobolysis and the patient preferred Thrombolysis. This is exactly the very same point sought to be proved through DW6, which we have adverted to earlier. 29. DW9 was the Secretary of the SNDP Union, Aluva in 2010. He produced Ext.D11 minutes of the SNDP Union to show that the accused Pushpakaran filed a complaint against his brother Purushothaman before the SNDP Yogam. On crossexamination, it was disclosed that the witness was not aware of the further action taken in the petition and the accused Pushpakaran was a member of Keezhmadu Union during the relevant time. This witness was examined to prove that the accused was on inimical terms with PW7. 30. Going by the entire evidence adduced in this case, it is clear that the accused stabbed the deceased with MO1 knife at the place of occurrence. The occurrence was witnessed by PW1. His evidence would show that there was street light at the place of occurrence. The main contention raised is that the accused was on inimical terms with PW7 and his son PW1. His evidence is corroborated by the evidence of CRL.A.NO.401 OF 2015 :-20-: PWs. 2 and 4 in material particulars though they turned hostile to the prosecution. PW1's evidence supports the nature of the injury and the manner of inflicting the injury with MO1. PW1's evidence is also substantiated by the medical evidence of PW11 and Ext.P11 postmortem certificate. It is disclosed that death was due to the penetrating injury sustained on the chest, i.e., the second injury stated in the Postmortem Certificate. PW1's evidence is consistent. The first injury was on the left side of the chest and then on the right side. PW1 also identified MO1 weapon. It is all the more important to note that MO1 was recovered in accordance with law as contemplated under Section 27 of the Evidence Act by virtue of Ext.P5 mahazar from the residence of the accused pursuant to EXt.P5 information. The MO1 weapon contained the blood stain of the deceased. Going by the testimony of PW1, there is nothing to indicate that he is a chance witness. He was actually present on the date of occurrence and he saw the occurrence. Assuming for argument's sake that PW1 is a chance witness, it is well settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus reliable. ## 31. In **Sachchey Lal Tiwari v. State of U.P.** [(2004)11 SCC 410], the Supreme Court while considering the evidentiary value of CRL.A.NO.401 OF 2015 :-21-: the chance witness in a case of murder which had taken place in a street and passerby had observed as under:- “ _7...........In a murder trial by describing an independent witness as a “chance witness”, it cannot be implied thereby that his evidence is suspicious and his presence at the scene of occurrence is doubtful. Murders are not committed with previous notice to the witnesses-- soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere “chance witnesses”. The expression “chance witness” is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual at any rate in the matter of explaining their presence.............”_ However, in the present case, the presence of PW1 at the place of occurrence is not free from doubt. 32. In view of the above legal principle, the trial court rightly relied on the testimony of PWs.1 and 7 as reliable witnesses. In fact, evidence of PWs.1 and 7 are corroborated by the evidence of PWs.2,4 and 15. Previous enmity between PW7 and the accused is not sufficient to discard the evidence let in by the witnesses and other circumstances. 33. According to PW1, before attacking the deceased, the accused jumped out of the autorickshaw holding knife stating that “he is the reason for everything” and stabbed the deceased. According to the learned counsel for the accused, such a statement deposed by the witness is an CRL.A.NO.401 OF 2015 :-22-: omission in the statement recorded under Section 161 of the Cr.P.C. It is true that the statement recorded under Section 161 Cr.P.C. can be used only for contradiction as provided under Section 162 of Cr.P.C. Hence, naturally a doubt may arise as to whether PW1 has improved his version during trial travelling beyond the scope of the statement recorded under Section 161 of Cr.P.C. On a perusal of the First Information Statement, it is clear that such a statement is found a place in Ext.P1 FIS. Ext.P1 was an earlier statement given by the witness. Merely because such a statement was not recorded by the Police while recording his deposition subsequently, the same itself is not a ground to disbelieve the version of PW1, which has factual foundation in Ext.P1 statement. This cannot be taken as a discrepancy as contended by the learned counsel for the appellant. The principle laid down in **A.Shankar** v. **State of Karnataka** [2011 AlAR (Criminal) 516] is not applicable in this case. 34. The contention next raised is that the failure of prosecution to prove recovery of MO1 knife is not in accordance with Section 27 of the Indian Evidence Act. The learned counsel for the appellant relied on **Mustkeem @ Sirajudeen** v. **State of Rajasthan** [2011 AIAR (Criminal)667]. The learned counsel contended that PW7, who is a witness to the recovery mahazar, was residing far away from the place CRL.A.NO.401 OF 2015 :-23-: of recovery and no local person is called to be witnesses to the recovery. The facts and circumstances of the said case are totally different. In fact, recovery of the weapons in the said case on disclosure of the appellant was made in the presence of two witnesses. The first witness was declared hostile and another witness admitted that his signature was obtained on the MOs. at the Police Station itself. In this case, facts are different. PW7 adduced evidence to show that he was present while recovering MO1 and he put signature in the recovery mahazar. He also stated genuine reasons for his presence while preparing the recovery mahazar by the Police. He has stated that himself and his brother Janardhanan came there to invite the marriage of the daughter of Janardhanan. Further, PW7 is equally related to the accused as well. PW7 is a genuine witness authenticated the recovery of MO1 as contained in Ext.P5 seizure mahazar pursuant to the information furnished as per Ext.P15. 35. As indicated earlier, material objects of the accused were taken into custody by the Police. Subsequently,the above material objects were examined in the Forensic Science Laboratory. On examination, it was disclosed that the material objects contained the stain of blood group B positive. Having regard to the injury inflicted by MO1 weapon, the only logical inference is that CRL.A.NO.401 OF 2015 :-24-: the stain of blood of the deceased happened to be there in the material objects for the simple reason that the accused inflicted injuries on the chest of the deceased with MO1. 36. The learned counsel for the appellant contended that in Ext.P12 arrest memo, PW16 investigating officer has not cited any independent witnesses in violation of Section 41 of the Cr.P.C., which mandates that while arresting a person, the arresting officer has to prepare a memorandum of arrest attested by at least one witness. Assuming for arguments sake, the contention is right, it is settled principle of law that illegality in the arrest of the accused does not vitiate the trial. In **Parbhu** v. **Emperor** (AIR 1944 PC 73] and in **Mobarik Ali Ahmed** v. **the State of Bombay** [AIR 1957 SC 857], the Privy council and Hon'ble Supreme Court held that illegality in the arrest of the accused does not vitiate the trial. Even otherwise, the accused has not proved the factum of he being arrested from somewhere else other than the place proved by the prosecution. 37. The learned counsel for the appellant further contended that the motive alleged by the prosecution is not proved beyond doubt. According to the learned counsel, no independent witnesses were examined to prove that the appellant had a grudge against the deceased as alleged by the prosecution. It is settled principle of law that CRL.A.NO.401 OF 2015 :-25-: where there is clear evidence that the accused has committed the offence, it is immaterial where no motive for commission of the crime has been shown. The Apex Court has reiterated the above view in **Yuvaraj Ambar Mohite** v. **State of Maharashtra** [(2006) 12 SCC 512] wherein it is held that circumstances brought on record by the prosecution clearly demonstrate that it was the appellant alone, who committed the murder and in view of the matter, absence of motive would be immaterial. 38. Last but not the least,the learned counsel for the appellant contends that in a case which hangs on the evidence of a solitary witness, the evidence of such witness should be cogent, reliable and in tune with the probabilities and should inspire implicit confidence as held by this Court in **Sabu and others** v. **State of Kerala** [ILR 2016 (4) Kerala 272]. We are of the view that it is not necessary to examine a large number of witnesses, if the prosecution is able to prove the guilt of the accused even with a limited number of witnesses. It is not the number of witnesses that matters, but it is the substance. The oral testimony of witnesses in this case is wholly reliable. Further, the statement of such witness is corroborated by other evidence and expert evidence. 39. In the instant case, the prosecution has succeeded in proving the guilt of the accused beyond reasonable CRL.A.NO.401 OF 2015 :-26-: shadow of doubt. Placing reliance upon the statement of witnesses, documents, material objects and all other circumstances, the trial court appreciated the evidence in the right perspective and arrived at a logical conclusion. Therefore, the impugned judgment and order passed by the trial court are not liable to be set aside by this Court in exercise of its appellate jurisdiction. In our opinion, the judgment and order of conviction passed by the trial court was based upon proper appreciation of evidence and circumstances. For the reasons stated supra, this Criminal Appeal is dismissed. The judgment of conviction and order of sentence passed by the trial court is confirmed. The appellant will suffer the remaining sentence imposed by the court below. Sd/- **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/