Vinobhai s/o Vijayan v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938 CRL.A.No. 1412 of 2012 () -------------------------AGAINST THE JUDGMENT IN SC 733/2011 of ADDITIONAL DISTRICT COURT, IRINJALAKUDA DATED 08-10-2012 APPELLANT(S)/APPELLANT/ACCUSED:-: -------------------------------- VINOBHAI, S/O.VIJAYAN, KOPPI HOUSE, KONOOR DESOM, MURINGOOR THEKKUMURI VILLAGE, THRISSUR DISTRICT. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.JOSEPH GEORGE(MULLAKKARIYIL) SRI.ARUN KRISHNA DHAN RESPONDENT(S)/COMPLAINANT:-: ---------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. By Public Prosecutor (Crimes) Sri. Nicholas Joseph THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K.ABDUL REHIM &** ## **B.SUDHEENDRA KUMAR, JJ.** .................................................................... Crl.Appeal No.1412 of 2012 ................................................................... Dated this the 7[th] day of September 2016 ## **JUDGMENT** ## **Sudheendrakumar J.,** The appellant is the accused in S.C. No733 of 2011 on the files of the Additional Sessions Court, Irinjalakuda. The trial court convicted the appellant under Section 302 I.P.C. and sentenced him thereunder to imprisonment for life and a fine of Rs.1,00,000/- with a default clause for rigorous imprisonment for six months. 2. The prosecution allegation is that on 31.12.2010 at about 11.45 a.m., the appellant stabbed the deceased Ramakrishnan with MO1 knife, causing grievous injuries on him and as a consequence, the deceased succumbed to Crl.Appeal No.1412 of 2012 -2- the injuries at or about the same time. 3. On the basis of Ext.P1 F.I. statement given by PW1, the brother of the deceased, PW25 registered Ext.P22 F.I.R. for the offence under Section 302 I.P.C. The investigation was taken over by PW26 on 31.12.2010 at 12.30 p.m. He conducted the inquest on the body of the deceased from 12.35 p.m. to 2.35 p.m. on 31.12.2010 and prepared Ext.P2 inquest report. PW26 arrested the accused at 10 p.m. on 31.12.2010. When questioned the appellant in custody, the appellant had given Ext.P23 disclosure statement and pursuant to Ext.P23 disclosure statement and as led by the appellant, MO1 knife was recovered by PW26 as per Ext.P28 mahazar. In the same way, MO2 T.shirt, MO3 dhoti and MO4 mobile phone were recovered at the instance of the appellant pursuant to Ext.P24 disclosure statement given by the appellant and as led by the appellant, as per Ext.P9 Mahazar. He questioned the witnesses and conducted the investigation. Thereafter, the investigation was took over by PW28 on 19.1.2011. He Crl.Appeal No.1412 of 2012 **==> picture [16 x 9] intentionally omitted <==** verified the records and filed the final report before the court after completing the investigation. 4. In the trial, PW1 to PW28 were examined and Exts.P1 to P32 were marked for the prosecution, besides identifying MO1 to MO8. Exts.D1 to D1(a) were marked for the defence. 5. We have heard the learned counsel for the appellant Sri.P.S. Sreedharan Pillai and the learned Public Prosecutor Sri.Nicholas Joseph. 6. PW21 was the Doctor, who conducted the postmortem examination on the body of the deceased and issued Ext.P16 post-mortem certificate. PW21 opined that the death of the deceased was due to the incised penetrating wound sustained to the left side of the deceased (injury No.6). The evidence of PW21 would show that the blood group of the deceased is 'A' +ve. It is further in the Crl.Appeal No.1412 of 2012 -4- evidence of PW21 that injury No.6 could be caused with MO1 knife. The evidence of PW21 coupled with Ext.P16 post-mortem certificate would show that the deceased died due to injury No.6 sustained by him. 7. PW4 and PW5 are the occurrence witnesses, who supported the prosecution case. PW4 is a newspaper agent. While PW4 was coming in a bike on the date of the incident at about 11.45 a.m., he saw the appellant following the deceased Ramakrishnan from behind. Thereafter, the appellant held the deceased Ramakrishnan by the neck and stabbed him on his chest. The deceased Ramakrishnan fell down on the road procumbent. Then the appellant again stabbed him two-three times. Thereafter, the appellant came near to PW4, intimidated PW4 by keeping a knife at his neck and directed him to him to take the appellant to 'Maryadapalam', which is a nearby bridge. PW4 obeyed the direction of the appellant. PW4 dropped the appellant at Maryadapalam and thereafter, the appellant went away Crl.Appeal No.1412 of 2012 -5- from there with the knife. The evidence of PW4 would show that the dress and the face of the appellant were stained with blood. He informed the matter to his nephew and Panchayat Member Suresh and thereafter, he returned to the place of occurrence again. PW4 identified MO1 knife used by the appellant to inflict stab injuries on the deceased. PW4 also identified MO2 shirt and MO3 dhoty worn by the appellant at the relevant time. 8. PW5 is another occurrence witness who also supported the prosecution case. PW5 stated about the incident in tune with the evidence of PW4 in all material aspects. PW5 is employed in the Co-operative Bank. On the fateful day, he was bit late in proceeding to the office. On the way, he saw the appellant taking out MO1 knife from his loin and following the deceased from behind. The appellant caught hold of the neck of the deceased with his left hand and stabbed him on the left chest with MO1 knife. The deceased Ramakrishnan fell down on the road Crl.Appeal No.1412 of 2012 -6- procumbent. Thereafter also, the appellant inflicted twothree stab injuries on the deceased. Thereafter, the appellant had gone to the eastern side in the bike of PW4. 9. The learned counsel for the appellant has argued that both PW4 and PW5 are partisan witnesses who maintained animus against the appellant and in the said circumstances, the evidence of PW4 and PW5 cannot be accepted. It has been further argued by the learned counsel for the appellant that there was hardly any chance for PW4 and PW5 to reach the place of occurrence at the relevant time and in the said circumstances also, their evidence cannot be believed. It has been further argued by the learned counsel for the appellant that PW4 is a co-accused along with the deceased in the case registered in connection with the murder of the brother of the appellant and PW5 is an injured in a case registered against the appellant herein and others in connection with the incident which had taken place in retaliation of the murder of the Crl.Appeal No.1412 of 2012 -7- brother of the appellant and in the said circumstances, their evidence cannot be accepted. 10. It is borne out from the evidence that PW4 and PW5 belonged to C.P.M. Party and the deceased also belonged to C.P.M party. The appellant belonged to R.S.S. Party. Therefore, there is no dispute that the appellant and the witnesses namely, PW4 and PW5 belonged to different groups having constant rivalry. It is also borne out from the evidence of PW4 that he was a co-accused with the deceased in the case registered in connection with the murder of the brother of the appellant. It is also borne out from the evidence of PW5 that he was an injured in a case registered against the appellant and others in connection with the incident which took place in retaliation of the incident leading to the death of the brother of the appellant. 11. It is settled law that the evidence of witnesses cannot be discarded on the sole reason that the said Crl.Appeal No.1412 of 2012 -8- witnesses are partisan or interested. However, in such a situation, the court must be very cautious in evaluating the evidence and their evidence can be accepted only after testing it with touch stone of credibility and trustworthiness. PW4 stated that PW4 witnessed the occurrence while he was proceeding in a motor cycle. He stated that his intention was to canvass more people residing near to the temple as subscribers of the newspaper. PW4 stated that he turned towards south when he reached at the canal bridge. He further stated that the temple is on the northern side of the canal. In the said circumstances, the learned counsel has submitted that there was no need for PW4 to turn towards south. It is clear from the evidence of PW4 that his intention was to canvass more subscribers from the locality of the temple. Therefore, even though the temple was situated on the northern side of the canal, the persons residing on the immediate south side of the bridge are also residing in the locality of the temple and in the said circumstances, it was only natural that he Crl.Appeal No.1412 of 2012 -9- turned towards south for the purpose of proceeding to the houses from where he could get the subscribers. Having gone through the evidence of PW4, we are of the considered view that PW4 fairly explained the reason why he happened to be present at the place of occurrence at the relevant time. Further, the evidence of PW4 would show that the appellant intimated PW4 by keeping a knife at the neck of PW4 and directed him to take the appellant from there in the motor cycle ridden by PW4. Accordingly, PW4 had taken the appellant from the place of occurrence to Maryadapalam. The above part of the evidence of PW4 is corroborated by the evidence of PW5 who also stated that PW4 had taken the appellant from the place of occurrence in the motor cycle of PW4. 12. PW5 was a person working in the Co-operative bank. He is a resident of Konoor. He stated that he witnessed the occurrence on the way to his office. The evidence of PW5 would show that he used to walk nearly Crl.Appeal No.1412 of 2012 -10- 1 k.m. along the canal road to catch the bus to his office. He stated that he used to reach Kovoor junction through the the canal bund and from there, he used to get the bus. It is borne out from the evidence that there was an alternative way also to reach the bus stop. However, the evidence of PW5 would show that both the said routes are having more or less the same distance. Having scrutinised the evidence of PW5, we are of the considered view that PW5 could also convincingly explain the reason as to how he happened to be present at the place of occurrence at the relevant time. 13. The learned counsel for the appellant has argued that even though CW12 and CW14 were cited to prove the motive for the present incident, which had taken place just half an hour before the incident in this case, the prosecution did not incline to examine them, and thereby the prosecution suppressed the genesis of the case and consequently, the appellant is entitled to benefit of doubt. From the memo of evidence, it is clear that CW12 and Crl.Appeal No.1412 of 2012 -11- CW14 were cited by the prosecution to prove the incident in this case and not to prove the incident which had taken place just half an hour prior to the incident in this case. The prosecution had also examined PW6 and PW8, who were independent witnesses, to prove the occurrence, even though both PW6 and PW8 did not support the prosecution case. 14. The Apex Court in Narain v. State of Punjab (AIR 1959 SC 484) held that if a material witness has been deliberately or unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it, may be open to challenge. 15. The Apex Court in State of U.P. and another v. Jaggo and others (AIR 1971 SC 1586) observed thus:- “It is true that all the witnesses of the prosecution need not be called but it is Crl.Appeal No.1412 of 2012 -12- important to notice that the witness whose evidence is essential to the “unfolding of the narratives” should be called”. 16. The Apex Court in Sawal Das v. State of Bihar (AIR 1974 SC 778) quoted with approval the principle in Stephen Seneviratne v. The King (AIR 1936 PC 289) that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. 17. This court relying on various decisions of the Apex Court held in Swarnamma and another v. State of Kerala (2015 KHC 561) thus:- “If a material witness is deliberately or unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the Crl.Appeal No.1412 of 2012 -13- validity of the conviction resulting from it, may be open to challenge. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, nonexamination of such other witnesses may not be material.” 18. In this case, the prosecution examined PW4 to PW6 and PW8 to prove the occurrence. Of the said witnesses, PW4 and PW5 alone supported the prosecution case. In the said circumstances, the prosecution did not incline to examine CW12 and CW14. Having gone through the relevant inputs, we are of the view that overwhelming evidence is available in this case to prove the occurrence and hence the examination of the other witnesses would have been only a repetition or duplication of the evidence already adduced. In the said Crl.Appeal No.1412 of 2012 -14- circumstances, the non-examination of CW12 and CW14 cannot be said to be fatal to the prosecution case. 19. It has been further argued by the learned counsel for the appellants that the conduct of PW4 and PW5 in not taking the deceased to the hospital is not a normal human conduct of a person and in the said circumstances, it has to be held that PW4 and PW5 were not present at the place of occurrence at the relevant time. It is borne out from the evidence of PW4 that the appellant intimidated PW4 by keeping a knife at his neck and directed him to take away the appellant from the spot in the motor cycle of PW4 and accordingly, PW4 had taken the appellant from the spot. It is true that PW5 did not take the deceased to the hospital. However, the evidence of PW4 and PW5 would show that immediately after the incident, the deceased died. Therefore, even the people assembled there after the incident also did not take the deceased to the hospital. Since the deceased had already died, there was hardly any Crl.Appeal No.1412 of 2012 -15- need to take the deceased to the hospital. In the said circumstances, the conduct of PW4, PW5 or the other persons, who reached the place of occurrence, in not taking the deceased to the hospital, cannot be said to be an abnormal conduct. 20. The learned counsel for the appellant has further argued that the blood stain on MO1 to MO3 was not put to the appellant in his examination under Section 313 Cr.P.C., and in the said circumstances, the said part of the evidence cannot be taken as evidence against the appellant. The learned counsel relied on the decision of the Apex court in Sharad Birdhichand Sardar v. State of Maharashtra (AIR 1984 SC 1622) to support his argument. The Apex Court in Sharad (supra) quoted the decisions of the Apex court in Shamu Balu Chaugule v. State of Maharashtra (AIR 1976 SC 557) and Harijan Megha Jesha v. State of Gujarat (AIR 1979 SC 1566) with approval and held that unless the incriminating circumstances appearing against the accused Crl.Appeal No.1412 of 2012 -16- are put to him in his examination under Section 313 Cr.P.C., the same cannot be used against him. It is settled law that the examination of the accused under Section 313 Cr.P.C. is an opportunity to the accused to explain about the incriminating materials appearing in the evidence against the accused. If an opportunity is not granted to explain the incriminating circumstances against the accused, definitely that part of the evidence cannot be used against the accused. In this case, the evidence of PW13 regarding the blood stains on MO2 T-shirt and MO3 dhothi recovered from the house of the appellant, was put to the appellant during his examination under Section 313 Cr.P.C.. The appellant simply denied the same. Ext. P18 is the chemical analysis report which would show that MO1 to MO3 contained human blood. It further appears from Ext. P18 that MO3 dhothi of the appellant contained human blood belonging to 'A' group. The blood group of the deceased is 'A+' as per the evidence of PW21. When questioned the appellant under section 313 Cr.P.C., with Crl.Appeal No.1412 of 2012 -17- reference to the evidence of PW27, Ext. P18 certificate of chemical analysis was also brought to the notice of the appellant. Then also, instead of giving any plausible explanation, the appellant simply gave the answer in negative. The above discussion would show that the relevant aspects were brought to the notice of the appellant to enable the appellant to give an explanation with regard to the blood stains on MO1 to MO3. It is also to be noted that even if the evidence of PW27 and Ext. P18 report are eschewed, then also there is sufficient evidence to connect the appellant with the commission of the offence. In the said circumstances, the argument in this regard cannot be accepted. PW4 stated that he had witnessed the incident when he reached near to the place of occurrence in his motor bike. However, PW5 in cross-examination stated that PW4 witnessed the incident sitting on the canal bund. In view of the above evidence, the learned counsel for the appellant has submitted that there exists doubt with regard to the presence of PW5 at the place of occurrence. Crl.Appeal No.1412 of 2012 -18- The incident was on the mud road. The evidence of PW4 would show that PW4 was on the bike when the incident occurred. There is no evidence that there was any place on the mud road to sit. The evidence of PW5 would show that the appellant had kept a knife at the neck of PW4 and directed him to take the appellant away from the place of occurrence in his motor cycle. From the above evidence, the only inference possible is that PW5 had seen PW4 witnessing the incident, sitting on the motor bike on the mud road, which is totally in corroboration with the evidence of PW4. Therefore, there is no inconsistency or discrepancy in this regard between the evidence of PW4 and PW5. 21. The learned counsel for the appellant has further argued that the evidence of PW21 coupled with Ext. P16 would show that the rigour mortis was completely established at the time of commencement of post-mortem examination at 3.15 p.m., and in the said circumstances, Crl.Appeal No.1412 of 2012 -19- the incident could not have been occurred as alleged by the prosecution. It has been further argued by the learned counsel for the appellant that there was an earlier incident at 11.15 a.m. and the prosecution withheld the said incident from the court and in the said circumstances, it has to be held that the prosecution suppressed the genesis of the prosecution case. 22. The prosecution had a case that there was a wordy altercation near to the toddy shop at about 11.15 a.m. on the fateful day. PW7 was examined by the prosecution to prove the same. However, PW7 did not support the prosecution case and in the said circumstances, Ext. P4 contradiction in the CD statement of PW7 was marked and subsequently proved. Therefore, it cannot be said that the prosecution suppressed the earlier incident or the genesis of the prosecution case. That apart, the earlier incident was only the motive for the present incident. Crl.Appeal No.1412 of 2012 -20- 23. PW21 stated that rigor mortis was fully established and retained all over the body. PW21 further stated that during summer season, the rigor mortis could be established earlier. It was also stated by PW21 that in the event of physical exertion, rigor mortis could be established within three hours. He further stated that when there is violence, rigor mortis could be established all over the body earlier. The defence did not put even a suggestive question to PW21 that the death was prior to 11.45 a.m. on 31-12-2010. There is absolutely nothing on indicate to suspect that the death in this case occurred prior to 11.45 a.m. on the fateful day. The evidence of PW21 coupled with the evidence of PW4 and PW5 would prove that the death was due to the attack on the deceased with MO1 knife. Therefore, the only inference possible is that the rigor mortis was established earlier due to the violence. For the said reasons, the argument in this regard lacks merits. Crl.Appeal No.1412 of 2012 -21- 24. The learned counsel for the appellants relied on the decision in Lallu Manjhi and Another v. State of Jharkhand [(2003) 2 SCC 401] and argued that PW4 and PW5 are interested witnesses and hence their evidence cannot be relied upon. In Lallu Manjhi (supra), the Apex Court held thus:- “The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration Crl.Appeal No.1412 of 2012 -22- in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness”. 25. The Apex Court in State of U.P. v. Krishna Master and Others (2010 KHC 4526=AIR 2010 SC 3071) observed in paragraph 11 thus:- “While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of Crl.Appeal No.1412 of 2012 -23- context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details”. 26. In Md. Ishaque and Others v. State of West Bengal and Others (2013 KHC 4366), the Apex Court observed that the mere fact that some of the witnesses are interested witnesses, that by itself is not a ground to discard their evidence, if their evidence taken as a whole supports the case of the prosecution. Crl.Appeal No.1412 of 2012 -24- 27. The Apex Court quoted the observation in Md. Ishaque and Others (supra) with approval and observed in Upendra Pradhan v. State of Orissa (2015 KHC 4335) thus:- “We are of the opinion that the testimonies of interested witnesses are of great importance and weightage. No man would be willing to spare the real culprit and frame an innocent This view has been person. supplemented by the decision of this Court in Mohd. Ishaque v. State of West Bengal [2013 (14) SCC 581). 28. In Sukhdev Singh and Another v. State of Punjab [(2010) 13 SCC 656], the Apex court held that mere marginal variations in the statements of witnesses cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier and the omissions which amount to contradictions in Crl.Appeal No.1412 of 2012 -25- material particulars, affecting the root of the prosecution case, alone render the testimony of the witness liable to be discredited. The Apex Court in State of U.P. v. Naresh and Others (Supra) held in para 30 thus:- “In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires -26- Crl.Appeal No.1412 of 2012 confidence”. The Apex Court in Bakshish Singh v. State of Punjab and Another [(2013) 12 SCC 187] held that the minor inconsistent versions or discrepancies do not demolish the entire prosecution story, if it is otherwise found to be credit worthy, and only such omissions which amount to contradictions in material particulars can be used to discredit the testimony of the witness. The Apex Court in State of Karnataka v. K. Yarappa Reddy (AIR 2000 SC 185) relied upon the observations in Rana Pratap v. State of Haryana (AIR 1983 SC 680) and Appabhai v. State of Gujrat (AIR 1988 SC 696) and held in paragraph 26 thus:- “Criminal courts should not expect a set reaction from any eye-witness on seeing an incident like murder. If five persons witness one incident there could be five different types of reactions from each of them. It is neither a tutored impact nor a structured reaction which the eye-witness can make. It is fallacious to suggest that PW11 would Crl.Appeal No.1412 of 2012 -27- have done this or that on seeing the incident. Unless the reaction demonstrated by an eyewitness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub his reactions as unnatural”. 29. It is now well settled that contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect the chore of the prosecution case, should not be made as a ground to reject the evidence in its entirety. In the depositions of witnesses, there are always normal discrepancies, however honest and truthful they may be. In this case, both PW4 and PW5 belonged to a particular faction and the appellant belonged to another political faction. Therefore, the Court has to be more careful in evaluating the evidence of such witnesses. The evidence of such witnesses has to be tested with the touchstone of trustworthiness and credibility before acting upon their evidence. In this case, we have anxiously gone through the evidence of PW4 and PW5 Crl.Appeal No.1412 of 2012 -28- and we are fully convinced that in spite of minor contradictions and discrepancies, their evidence comes within the zone of credibility. In the said circumstances, we find no reason to discredit their evidence merely because they belonged to different political factions than that of the appellant. 30. There is yet another piece of evidence to connect the appellant with the commission of the offence. PW26 arrested the appellant at 10 p.m. on 31-12-2010. When questioned, the appellant had given Ext. P23 disclosure statement and pursuant to the said disclosure statement and as led by the appellant, MO1 knife was discovered as per Ext. P8 mahazar at the instance of the appellant. PW12 fully supported the evidence of PW26 with regard to the recovery of MO1 knife at the instance of the appellant. The evidence of recovery of MO1 knife at the instance of the appellant is a strong piece of evidence connecting the appellant with the commission of the offence. MO1 was Crl.Appeal No.1412 of 2012 -29- stained with human blood as per the evidence of PW27 coupled with Ext. P18 report of the chemical examiner. The presence of human blood on MO1 fastens the culpability of the appellant. 31. The evidence discussed above would show that the evidence of PW4 and PW5 with regard to the sustaining of injury by the deceased is fully corroborated by the medical evidence of PW21 and Ext. P16 postmortem certificate. The evidence of recovery of MO1 knife at the instance of the appellant pursuant to Ext. P23 disclosure statement given by the appellant further corroborates with the medical evidence of PW21 and the oral evidence of PW4 and PW5 with regard to the occurrence. 32. The evidence on record would show that there was intention on the part of the appellant to inflict fatal injuries on the deceased and the said injuries were Crl.Appeal No.1412 of 2012 -30- sufficient in the ordinary course of nature to cause death of the deceased. Therefore, this case squarely falls within the ambit of clause thirdly of Section 300 I.P.C. The learned counsel for the appellant has argued that the appellant is entitled to benefit of Exception 4 to Section 300 I.P.C. The learned Public Prosecutor on the other hand, has submitted that since the appellant had inflicted stab injuries on the deceased even after the deceased had fallen down, the appellant is not entitled to the benefit of Exception 4 to Sec. 300 IPC as the appellant had acted in a cruel and unusual manner. It is borne out from the evidence of PW4 and PW5 that the appellant inflicted twothree stab injuries on the deceased even after the deceased fell down on sustaining the first injury on his chest. This would show that the appellant had acted in a cruel and unusual manner. There is also no evidence before the court to indicate that there was any quarrel or sudden fight. Therefore, the appellant is not entitled to the benefit of Exception 4 to Section 300 IPC. Crl.Appeal No.1412 of 2012 -31- 33. Having re-appreciated the evidence carefully, we are satisfied that the court below correctly appreciated the evidence and rightly convicted and sentenced the appellant under Section 302 IPC and in the said circumstances, we find no reason to interfere with the conviction and sentence passed by the court below under Section 302 IPC. In the result, this appeal stands dismissed. ## **Sd/-C.K.ABDUL REHIM, Judge** ## **Sd/-B.SUDHEENDRA KUMAR, Judge** dl/ani /true copy/ P.S. to Judge