State of Kerala v. Prince @ Unni

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 2ND DAY OF NOVEMBER 2012/11TH KARTHIKA 1934 CRL.A.No. 1307 of 2008 ( ) -------------------------SC.457/2002 of COURT OF ADDL.SESSIONS JUDGE-II, MAVELIKKARA APPELLANT/ACCUSED: ------------------------ PRINCE @ UNNI BHAVANI BHAVAN, SOUTH MANKUZHY, BHARANIKAVU VILLAGE MAVELIKKARA BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENT(S)/COMPLAINANTS: --------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. CIRCLE INSPECTOR OF POLICE, MAVELIKKARA. BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 9.10.2012, THE COURT ON 02-11-2012 DELIVERED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR, JJ.** ---------------------------------------- Crl.A.No.1307 of 2008 ---------------------------------------Dated this the 2[nd] day of November, 2012 ## **JUDGMENT** ## **Ravikumar, J.** Appellant, the accused in S.C.No.457 of 2002, was convicted and sentenced to undergo imprisonment for life under Section 302 and to undergo rigorous imprisonment for one year under Section 324 of the Indian Penal Code by the Additional Sessions Judge-II, Mavelikkara. This appeal is directed against the judgment dated 16.5.2007 whereby and whereof the aforesaid conviction was entered against and the aforesaid sentence was imposed on, the appellant. 2. The deceased Saleena, PW1 Mumthas and PW2 Asharaf are siblings. Koyakutty (PW7) is their father. Shabu (PW13) is the husband of the deceased and Dirshad (PW14) is their son. The deceased Saleena and PW13 along with their children (PW14 and PW4) were residing at Muttathutharayil Veedu, bearing Door No.VP-V/13 of Vallikkunnam Village, taken on rent from Jamaludheen Kunju (PW3) and PW1, PW2 and PW7 were residing in the family house that situated Crl.A.No.1307/2008 2 on the north of the said Muttathutharayil Veedu. Accused/appellant Prince @ Unni is a friend of PW13 Shabu and earlier, he had been the driver of Sbahu's taxi car and PW13 Shabu was owing certain amount to the accused. The case of the prosecution is that on 20.12.2000 at about 2.30 p.m. the accused criminally trespassed into the courtyard of the said Muttathutharayil Veedu for demanding return of the money in debt, due from PW13 who was then outside the country, from the deceased and during the course of such demand and on forming the intention to kill the deceased the accused drew out MO1 knife from his waist and stabbed Saleena on her right chest. Even while smarting she beseeched “don't kill me” and fell down and then, the accused withdrew the knife and stabbed her on the left abdomen. Though PW2 Asharaf, her brother, intervened to save the deceased he too, was stabbed by the accused with the intention of inflicting such grievous bodily injuries capable of causing death. Thereafter, the appellant took to his heels pulling off his torn shirt and throwing off the knife. The injured Saleena and PW2 were taken firstly to PW8 Dr.Suresh who on examination from Karalil Hospital, Manappally, declared Saleena's death. PW2 who was stabbed by the accused was admitted in Government Hospital, Kayamkulam. PW1 went to Vallikkunnam Police Station and lodged Ext.P1 First Information Statement which was Crl.A.No.1307/2008 3 recorded by Sri.M.S.Radhakrishnan Nair, the then Sub Inspector of Police, Vallikkunnam who could not be examined by the prosecution as he was indisposed and laid up, at 3.15 p.m. on 20.12.2000. On its basis, he registered Ext.P15 First Information Report with Crime No.224/2000 of that police station against the appellant alleging commission of offences under Sections 447, 302 and 307 of the Indian Penal Code. PW18 prepared Ext.P2 inquest report and made requisition for conducting postmortem on the body of Saleena. PW16 Dr.Johny Cyriac conducted autopsy on the body of Saleena between 10 a.m. and 11.30 a.m., on 21.12.2000 and prepared Ext.P13 postmortem certificate opining that the death of Saleena was due to the penetrating injuries sustained to the chest and abdomen. PW18 on examination of the place of occurrence seized MO1 knife, MO3 torn shirt, MO3(b) pocket of MO3 shirt and MO4 series of rubber chappals under Ext.P3 mahazar. MO2 series of clothes (skirt, towel, brassiere and shawl) found on the body of the accused, MO5 series of anklets, MO6 series of stud were also seized by PW18. Blood stained sand was also collected from the scene as per Ext.P3 besides the seizure of Ext.P11 letter under Ext.P11(a) mahazar. The dhoti worn by the accused at the time of commission of the offence was recovered by PW18 as per Ext.P17 mahazar. Ext.P3 scene mahazar was prepared Crl.A.No.1307/2008 4 and thondi articles were forwarded to the court as per Ext.P20 property list. The court was moved for sending the properties recovered for chemical analysis. The appellant was arrested on the same date viz., 20.12.2000 at 7.p.m. Ext.P16 arrest memo, Ext.P16(a) inspection memo were prepared and the injuries found on the body of the accused were noted in Ext.P16(a) by PW18. After completing the investigation PW18 laid the final charge before the Judicial First Class Magistrate Court, Mavelikkara. The learned Magistrate committed the case to the Sessions Court, Alappuzha. Learned Sessions Judge made over the case for trial and disposal to the Court of Additional Sessions Judge-II, Alappuzha. After a preliminary hearing charge was framed against the accused under Sections 447, 302 and 307 of the Indian Penal Code. It was translated, read over and explained to the accused and he pleaded not guilty. 3. To prove the charge against the accused/appellant prosecution examined PWs 1 to 18, marked Exts.P1 to P21 and identified MOs 1 to 9 series. During the cross examination of the prosecution witnesses Exts.D1 to D3, the portions of Section 161 statement respectively of PWs 2, 5 and 7, were marked. Exts.C1 and C1(a) were marked as court documents. After closing the prosecution Crl.A.No.1307/2008 5 evidence the learned Additional Sessions Judge questioned the accused under Section 313 Cr.P.C. On finding that the accused cannot be acquitted under Section 232 Cr.P.C. the accused was asked to enter on his defence. However, the accused did not adduce any evidence, either oral or documentary. On a careful consideration of the evidence on record the learned Additional Sessions Judge found the accused guilty for offences punishable under Sections 302 and 324 of the Indian Penal Code and convicted the accused thereunder. After hearing him on the question of punishment the appellant was sentenced to undergo imprisonment for life under Section 302 IPC and to undergo rigorous imprisonment for a period of one year for the conviction under Section 324 IPC and they were ordered to be run concurrently. This appeal is directed against the conviction and sentence imposed as aforesaid. 4. We have heard the learned counsel for the appellant and also the learned Public Prosecutor. 5. The learned counsel for the appellant contended that the prosecution has failed to conclusively establish the guilt of the accused and that the motive alleged was not proved. It is contended that it was a case of sororicide occurred accidentally at the hands of PW2 Ashraf Crl.A.No.1307/2008 6 and that the appellant was implicated solely to save PW2 on trumped up charges. The absence of blood stains on MO3 shirt and MO7, the sand collected from the scene of occurrence that allegedly stained with blood would debunk the version of the prosecution regarding the incident, it is contended by the appellant. It is also contended that if the place of occurrence was outside the Muttathutharayil Veedu where deceased was living, certainly blood stains would have been present in MO7 viz., sand collected from the scene of occurrence. It is further contended that the learned Additional Sessions Judge ought not to have believed the oral testimonies of PWs 1, 2 and 14 to fix the appellant as the culprit. PWs 1 and 2 are interested witnesses as they being the siblings of deceased Saleena. The evidence of PW13, which would disprove the alleged motive and the results of the chemical analysis showing absence of blood in MO3 shirt and MO7 sand collected from the scene of occurrence, allegedly stained with blood, make the oral testimonies of PWs 1 and 2 untrustworthy. It is further contended that the evidence of PW14 would show that the deceased had sustained the injuries causing her death when she came between the appellant and PW2 during the scuffle. Per contra, the learned Public Prosecutor contended that being the siblings of the deceased is no reason to disbelieve PWs 1 and 2 especially when despite the lengthy cross Crl.A.No.1307/2008 7 examination the defence could not elicit anything to discredit the oral testimonies of PWs 1, 2 and 14 and therefore, the trial court was perfectly justified in relying on their evidence. The learned Public Prosecutor further contended that the fact that MO3 and MO7 on chemical analysis found not stained with blood by itself cannot be a reason to hold that the appellant was unconnected with the offence when the ocular evidence was credible and reliable. It is also contended that in such circumstances defects or lapses in the investigation cannot defeat the prosecution case and evidence. 6. Virtually, the fact that the death of Saleena was a case of homicide has not been disputed by the appellant. In fact, it is indisputable in view of the evidence of PW16 with Ext.P13 postmortem certificate. PW16 Dr. Johny Cyriac conducted autopsy on the body of Saleena on 21.12.2000 and prepared Ext.P13 postmortem certificate recording the following ante-mortem injuries:- - “1. Incised penetrating wound, over the inner half of right breast, vertical, the skin part being 4 x 0.51.5cm, 6cm outer to the mid line, with its upper end sharp cut, 12.5cm, below the inner end of right collar bone, and the lower end round, coursing backwards, inwards, and downwards for 6.5cm (up to the sternum), and cutting through the right half sternum Crl.A.No.1307/2008 8 vertically at the level of 2[nd] and 3[rd] costal cartilages (4.5cm in length) and piercing the whole thickness of the upper lobe of right lung through the lower part of the front surface of the lobe. Around 1000 ml of blood was present in the right chest cavity and the lung was collapsed. 2. Incised penetrating wound, left side of front of trunk across the costal margin, vertically oblique with its skin part 7.5x1-4cm, the lower inner sharp cut end being 10cm outer to the midline and 12cm above the top of left hip bone (this end showed tailing, 1.5cm long) and the upper outer round end 4cm above the costal margin. Part of stomach and greater omentum was protruding out through the wound. It coursed upwards, backwards and inwards, cutting, the left 8[th] and 9[th] ribs vertically in the mid clavicular line (6.5 x 1.5cm) and the diaphragm to enter into the chest cavity, causing two incised wounds in the front surface of the lower lobe of left lung. Left lung was collapsed and around 500 ml of blood was present in the left chest cavity. The wound also entered into the abdominal cavity directly, and an incised wound was present on the front surface of left lobe of liver (2.5x1x1cm). About 800ml of blood was seen in the abdominal cavity.” PW16 opined that the death of Saleena was due to the penetrating injuries sustained to the chest and abdomen. The evidence of PW16 and Ext.P13 postmortem certificate were not seriously challenged by the defence. From the nature of the injuries which caused the death of Saleena as recorded in Ext.P13 and the evidence of PW16 would undoubtedly show that those injuries are sufficient in the ordinary Crl.A.No.1307/2008 9 course of nature to cause death. In the circumstances, it can only be found that the death of Saleena is a case of homicide. 7. When once it is found that the death of Saleena was homicide, the next questions are who was the assailant and how those injuries that caused the death were inflicted. To prove the culpability of the appellant the prosecution has relied on direct evidence. PW1 and PW2 who are siblings of the deceased are the eye witnesses and they were residing in the family house situated nearby Muttathutharayil Veedu whereon the deceased was residing. PW1 Mumtas is the younger sister of the deceased. She would depose that on 20.12.2000 at about 2.30 p.m. while she was sitting inside her house she heard the deceased loudly talking to somebody and thereupon she along with PW2 Asharaf and one Abdul Rahim went to the place of occurrence and saw the deceased and the appellant engaged in an altercation over some money transaction. She would further depose that in the course of that brief verbal confrontation the appellant uttered that he would go to jail after killing her. The appellant drew out MO1 knife from his waist region and then stabbed Saleena on her right chest and Saleena fell down beseeching “don't kill me” and then the appellant withdrew the knife and stabbed her on the left abdomen, it was further deposed. Crl.A.No.1307/2008 10 She would also depose that PW2 attempted to snatch away the knife from the appellant and in the melee between them both had sustained injuries and the appellant then stabbed PW2 on his wrist with MO1 knife. Hearing the din people started gathering and then the appellant abandoned the knife there and ran away from there. She had also deposed that thereupon, Saleena and PW2 were taken to Karalil Hospital and on examination the doctor declared the death of Saleena and PW2 was then taken to Government Hospital, Kayamkulam and from there he was referred to Medical College Hospital, Alappuzha. PW2, the brother of the deceased and PW1, is a salesman in Koyikkal Jewellery, Adoor. Since harthal was observed in that area on 20.12.2000 he came back home and reached the house at about 12.30 p.m. As it was fasting period he went to the mosque for prostration and then returned home. He would further depose that while sitting at home at about 2.30 p.m., he heard the deceased loudly talking to somebody and thereupon himself, PW1 and one Abdul Rahim rushed to the place of occurrence. PW2 deposed that the altercation between the appellant and the deceased was regarding some money transaction and he heard the deceased telling the appellant that she would repay the amount as and when PW13 sent amount from Gulf. He would further depose that he heard the appellant uttering that he would go to Crl.A.No.1307/2008 11 jail after killing her. According to PW2, the appellant thereupon took MO1 knife from his waist region and then stabbed Saleena on her right chest. On receiving the said stab she fell down beseeching “don't kill me”. However, the appellant withdrew the knife and stabbed on her left abdomen. He deposed that he caught hold of the appellant and there occurred a scuffle between himself and the appellant and in that scuffle the shirt worn by the appellant was torn and in the melee he sustained injuries on his four fingers and the appellant stabbed him on his left wrist saying “I will kill you too”. As a result of the said stabbing a vein of his left wrist was cut. Even according to PW1 and PW2, the said incident occurred in the courtyard of Muttathutharayil Veedu. PW14, the son of the deceased and PW13, categorically answered to the court question that after coming back from school he did not go out for playing on that fateful day. He too, deposed that the incident occurred in the courtyard of his house. True that, according to the version of PW14, the appellant came there and asked the deceased whether PW13 telephoned her and it was replied positively and thereupon the appellant went from there. At the same time, PW14 deposed that a scuffle occurred between the appellant and PW2 and that the deceased attempted to separate them. To the court question PW14 deposed as follows:- Crl.A.No.1307/2008 12 “ഉമ�ന� ക�ത� കക�ള�ന��ള ഞ�ന ഉമ�കന പ�റക�ന��ട� വ��ക�കയ�യ�ര�ന�. അന��ള ഉമ�ന മ�ക���യ�ണ� ധര�ച�ര�നത�. എകന ഇന��ള ക�ണ�ച MO1 മ�ക���യ�ണ� ഉമ�ന �&ഭവ �മയ& ധര�ച�ര�നത�.” (I was pulling umman backwards when umman was sustaining stab. Umman was then wearing maxi. Umman was wearing MO1 maxi, now shown to me, at the time of the incident.) True that, PW14 did not depose that it was the appellant who had inflicted the injuries on the deceased. It is quite natural as he himself stated that at the time of stabbing he was pulling her backwards. If he was doing that his version that he had not seen the stabbing viz., who had inflicted the stab injury could not be said to be an attempt to conceal the truth and, in fact, it could be the true version. At any rate, there is no reason to disbelieve his evidence to the extent he spoke of the presence of PW1 and PW2 in the scene of occurrence at the time of occurrence. Besides corroborating the evidence of PW1 and PW2 regarding their presence in the scene of occurrence the evidence of PW14 also corroborates their version that the incident had happened in the courtyard and thus falsifies the case of the appellant that the incident occurred inside the bed room of the deceased. It also would belie the defence case that at the time of the incident the deceased Crl.A.No.1307/2008 13 was wearing only a brassiere and underskirt. PW3 Jamaludeen Kunju is the owner of Muttathutharayil Veedu where the deceased was residing and PW5 is a neighbour residing in the house immediately north of Muttathutharayil Veedu. Both of them deposed that they had seen the appellant running through the road immediately after the incident when they rushed to the place of occurrence on hearing the hullabaloo from there. PW13 is the husband of the deceased and he was abroad at the relevant point of time. His evidence is relevant solely for the purpose of looking into the sustainability of the alleged motive for the murder. He would admit the money transactions with the appellant and categorically deposed that though initially the appellant was engaged as his taxi driver later, he became his bosom friend and the appellant was also not in the habit of pestering him or his wife with demand to return the debt. The evidence of PW13 and PW14 would not support the case of the prosecution regarding the motive imputed against the appellant. But, it is to be borne in mind that in a case where there is direct, reliable evidence failure to prove the motive will not be that much relevant. Thus, the issue precipitate into the question regarding reliability and admissibility of the evidence of PW1 and PW2. As noted earlier, the defence could not elicit anything to make their oral testimonies unreliable or untrustworthy. In Crl.A.No.1307/2008 14 view of the contention of the appellant based on their relationship with the deceased the decision of the Hon'ble Supreme Court in **Dayal Singh & Ors.** v. **State of Uttaranchal** reported in **2012 Crl.L.J. 4323** assumes relevance. Paragraph 10 therein reads thus:- “10. This Court has repeatedly held that an eyewitness version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness. The Court in the case of **Dharnidhar** v. **State of Uttar Pradesh** ( **(2010) 7 SCC 759** : _**2010 AIR SCW 5685**_ ) took the following view: ( _Para 8 of AIR SCW_ ): _“12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In_ _**Jayabalan** v._ _**UT of Pondicherry** ((_ _**2010) 1 SCC 199** : (_ _**AIR 2010 SC (Supp) 352 : 2010 AIR SCW 419** ), this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested_ Crl.A.No.1307/2008 15 _witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (_ _**SCC p. 213, paras 23-24) : (Paras 21 and 22 of AIR, AIR SCW** )_ “23. We are of the considered view that in cases where the court is called upon to deal with the evidence of interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses viz., PWs 1 to 4 also finds corroboration from the facts stated in the complaint.” _13. Similar view was taken by this Court in_ _**Ram Bharosey** v._ _**State of U.P.** (_ _**AIR 2010 SC 917 : 2009 AIR SCW 7220) AIR 1954 SC 704**_ Crl.A.No.1307/2008 16 _**(sic)** , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same.”_ A scanning of the oral testimonies of PW1 and PW2 would not reveal elements of unfairness and undue intention to falsely implicate the appellant, the elements which would make the version of an eyewitness unreliable and unworthy of credence on the ground of relationship with the deceased. There is no contradiction between the medical evidence and the ocular evidence of PW1 and PW2 inasmuch as they pertain to the injuries sustained by the deceased. 8. Now, the question is whether the absence of blood stains on MO3 shirt and MO7, the sand collected from the scene of occurrence, and the other defect/mistake that created a doubtful circumstance on the identity of the weapon used for stabbing on account of its description, are fatal and whether they could fetch Crl.A.No.1307/2008 17 acquittal on such grounds. Before answering the question and, in fact, for answering this question, it is apposite to refer to paragraphs 13, 14 and 15 of the decision of the Hon'ble Apex Court in _**Dayal Singh's**_ case (supra):- “13. We have already discussed above that the presence of PW2, PW4 and PW5 at the place of occurrence was in the normal course of business and cannot be doubted. Their statements are reliable, cogent and consistent with the story of the prosecution. Merely because PW3 and PW6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. Reference in this regard can usefully be made to the case of **C.Muniappan** v. **State of Tamil Nadu** ( **AIR 2010 SC 3718: (2010) 9 SCC 567** ). 14. Now, we will deal with the question of defective or improper investigation resulting from the acts of omission and/or commission, deliberate or otherwise, of the Investigating Officer or other material witnesses, who are obliged to perform certain duties in discharge of their functions and then to examine its effects. In order to examine this aspect in conformity with the rule of law and keeping in mind the basic principles of criminal jurisprudence, and the questions framed by us at the very outset of this judgment, the following points need consideration: (i) Whether there have been acts of omission and commission which have resulted in improper or defective investigation. (ii) Whether such default and/or acts of omission Crl.A.No.1307/2008 18 and commission have adversely affected the case of the prosecution. (iii) Whether such default and acts were deliberate, unintentional or resulted from unavoidable circumstances of a given case. (iv) If the dereliction of duty and omission to perform was deliberate, then is it obligatory upon the court to pass appropriate directions including directions in regard to taking of penal or other civil action against such officer/witness. 15. In order to answer these determinative parameters, the Courts would have to examine the prosecution evidence in its entirety, especially when a specific reference to the defective or irresponsible investigation is noticed in light of the facts and circumstances of a given case.” Paragraphs 22 and 28 are also relevant inasmuch as they dealt with the duty of the court in such cases of defective investigation:- “22. Now, we may advert to the duty of the Court in such cases. In the case of **Sathi Prasad** v. **The State of U.P.** ( **(1972) 3 SCC 613** : ( _**AIR 1973 SC 448**_ ), this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in the case of **Dhanaj Singh alias Shera & Ors.** v. **State of Punjab** ( **2004) 3 SCC 654** : ( _**AIR 2004 SC 1920 : 2004 AIR SCW 1609**_ ), held, “in the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in Crl.A.No.1307/2008 19 acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.” “28.Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not sub-served. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well.” 9. The sum and substance of the afore-quoted paragraphs is that in such cases, the court has to appreciate the evidence in such manner to see whether they are apparently or impliedly destructive of the substantive case sought to be proved by the prosecution. The above observations are applicable in the case of a defect or a mistake committed by the public analyst as well. Crl.A.No.1307/2008 20 10. As regards the circumstance created by the description of the weapon in Ext.P14, we are of the view that it is not sufficient to shatter the prosecution case. Ext.P14 the weapon subjected to chemical analysis has been described as hereunder:- "A chopper having a wooden handle. It have a maximum length of 35 cms. Maximum width of 5.9 cms. Blade was sharp at one edge and pointed towards the tip." 11. In fact, MO1 knife was seized from the place of occurrence and it has been described in Ext.P3 scene mahazar as follows: “ട� കത� നന�ക�യത�ല തട�കക�ണ� പ�ട�യ�ളത�& രണ� ആണ�കവച� പ�ട� ഉറ��ച�ട�ളത�&, കത�യ�& പ�ട�യ�& ഉളക�കട 26.2cm ന,ളവ�& പ�ട�ക �മ�തത& 11cm ന,ളമ�ളത�മ�ണ�. മധ/ഭ�ഗ& കക�ണ� കത�ക� 2.8cm വ,ത�യ�ണ�. ഒര�വശ& മ3രചയ�& അതഗഭ�ഗ& മ�നയ�മ�ള കത�യ�ണ�. ട� കത�യ�ല രക& പറ���ട�ച� ക�ണ�ന�. ” (On examination the knife is having wooden handle fixed with two nails and 26.2cm. length inclusive of the blade and handle portions and a length of 11 cm. for the handle portion. The middle portion is having 2.8 cm. width. The knife is sharp edged on one side and pointed at the end. The said knife is blood stained.) Crl.A.No.1307/2008 21 12. The following evidence on record, however, would go to show that it was the same knife that was seized from the place of occurrence that was forwarded to the laboratory for chemical analysis and in fact, subjected to chemical analysis. The knife described in Ext.P3 was produced before the Court of the Judicial First Class Magistrate, Mavelikkara on 3.2.2001 as per Ext.P20 property list and it was described thereunder as item No.8. Ext.P21(a) is the forwarding note that carried the description of the weapon at item No.5 as hereunder:- "Blood stained, one side sharp edged, wooden handle, pointed end with a length of 26.2 cms. knife." Above all, when PW17, the Scientific Assistant who conducted the chemical analysis and issued Ext.P14, was cross-examined on the description of item No.5 in Ext.P14 he deposed as hereunder:- "You haven't examined a knife having a length of 26.2 cms (Q)". I examined the knife with maximum length of 35 cms (A). Chopper is a weapon used to cut wooden branches and bushes. Such a chopper was not received for my examination. I examined MO1 and described it as a chopper by mistake." These aspects were considered by the trial court and found that it would not create a circumstance to reject the evidence on the identity Crl.A.No.1307/2008 22 of MO1 knife. We are also of the view that aforesaid mistake made by PW17 in Ext.P14 cannot in the circumstances prove fatal to the prosecution case. Ext.P14 would reveal that MO1 knife was stained with blood though its origin could not be detected as it did not contain sufficient blood for grouping. MO3 and MO7 are found to be not blood stained. The defect in the investigation relating their recovery and the result on chemical analysis are not sufficient to throw doubt on the substantive case of the prosecution in view of the ocular evidence. As stated earlier, the presence of PW1 and PW2 at the place of occurrence cannot be doubted at all in view of their mutual corroboration besides the support they gained from the evidence of PW14 in that regard. PW14 deposed that he had not seen as to who inflicted the injuries on the deceased and at the same time PW1 and PW2 have given the true account of the incident as to how and from whom the deceased Saleena sustained the injuries that caused her death. Their evidence is corroborated by the medical evidence. We are of the view that their statements are reliable, cogent and consistent with the case of the prosecution. Their consistent version which gained corroboration on the points elaborately discussed above, by the oral testimonies of PW3, PW5, PW14 and PW17 would conclusively prove that the appellant was the author of the injuries sustained by Saleena that caused her death. Crl.A.No.1307/2008 23 In such circumstances, the fact that MO3 and MO7 were found not stained with blood is inconsequential and, at any rate, not sufficient to shatter the substantive case of the prosecution. 13. The question then to be answered is what is the offence proved against the appellant? The question, so far as the intention is concerned, is not whether the appellant intended to kill or to inflict injuries of particular degree of seriousness but whether he intended to inflict the injuries in question and when once the existence of the injuries is proved the intention to cause them would have to be presumed unless the evidence or the circumstances warrant an opposite conclusion. Even if the intention is not there, from the evidence of PW16 with Ext.P13 postmortem certificate it can only be found that the penetrating injuries inflicted on the chest and abdomen are sufficient in the ordinary course of nature to cause death. The evidence of PW1 and PW2 would prove that they were inflicted by the appellant. Those particular injuries are not inflicted accidentally. Hence, at any rate, clause thirdly of section 300 IPC applies in this case and if so, the offence could only be under section 300 IPC. None of the exceptions under section 300 applies in the facts and circumstances of this case. Hence, the finding of the learned Additional Sessions Judge Crl.A.No.1307/2008 24 that the accused is guilty of the offence punishable under section 302 IPC is perfectly legal and calls for no interference. 14. As regards the charge against the appellant under section 307 IPC the learned Additional Sessions Judge, on appreciation of the evidence on record, found that the charge under section 307 IPC against the appellant is unsustainable. It was found that Ext.P5 wound certificate did not disclose any injury sufficient in the ordinary course of nature to cause death. Ext.X1 which is the treatment records of PW2 produced by PW15 would not show that PW2 had sustained such an injury. As rightly observed by the trial court not even a suggestion to the effect that he sustained such an injury was put to PW15. However, the evidence on record would reveal that PW2 had sustained incised wounds and tender injury on his left middle finger. Evidence of PW1 and PW2 would reveal that PW2 had sustained a stab injury from the appellant on his left hand. It was also inflicted with MO1 knife which is a dangerous weapon. PW15 would depose that injury No.1 in Ext.X1 could be caused by stabbing with MO1 knife. The finding of the learned Additional Sessions Judge that the appellant had committed only the offence under section 324 IPC as against PW2 for having caused hurt by dangerous weapon, also calls for no interference in view of the Crl.A.No.1307/2008 25 volume of evidence available to support he said finding. It is to be found that Ext.P6 is the wound certificate issued from the Government Hospital, Mavelikkara with respect to the injuries sustained by the accused in the scuffle and PW10 opined that all the injuries sustained by him are minor injuries and caused in a scuffle between two persons for a weapon like MO1 knife. The prosecution has thus satisfactorily explained the injuries found on the body of the appellant through the evidence of PW1 and Pw2. 15. The learned Additional Sessions Judge, on finding the appellant guilty for the offence under section 302 IPC imposed only the lesser sentence of imprisonment for life. We find no reason to interfere with the sentence thus awarded for the conviction under section 302 IPC. For the conviction under section 324 IPC the learned Additional Sessions Judge sentenced the appellant to undergo rigorous imprisonment for one year and the same was allowed to be run concurrently. Therefore, it also calls for no interference in the circumstances. In the result, this appeal is dismissed confirming the Crl.A.No.1307/2008 26 conviction and sentence imposed on the appellant by the judgment of the learned Additional Sessions Judge, Mavelikkara in S.C.No.457 of 2002. Sd/- **M.SASIDHARAN NAMBIAR Judge** Sd/- **C.T.RAVIKUMAR Judge** TKS