Vaisakh @ Hari Vss State Of Kerala

Ziyad Rahman A.A., J.

The appellant is the accused in S.C No 76/2010 on the file of Additional Sessions Court-I, Thiruvananthapuram. He stands convicted for the offences punishable under Sections 449, 302 and 309 of the Indian Penal Code (IPC). The sentence imposed upon him is imprisonment for life and fine of Rs.3 lakhs with default sentence of rigorous imprisonment for 2 years under Section 302 IPC, rigorous imprisonment for 5 years and a fine of Rs.10,000/- with default sentence of rigorous imprisonment for 6 months for the offence punishable under Section 449 of IPC and rigorous imprisonment for 6 months for the offence punishable under Section 309 of IPC. It was ordered that the sentence of imprisonment shall run concurrently.

The prosecution case in brief is as follows: The appellant who was romantically involved with the deceased Deepthi, came to know that she had fallen in love with PW1 which triggered a discordant note in his mind. On account of the same, he decided to eliminate her and with that intention, on 9.8.2006 at around 4.30 p.m., armed with deadly weapons viz. magnetic granulated choppers, knife, pointed chisel, egg-white laden syringes, bottled medicated liquid, blade, dissection needle etc, he trespassed into her house and forcefully administered some medicated liquid to her. She was also inflicted with cut wounds on her neck, face and head with chopper, stabbed her on vital parts of her body with pointed chisel, tester and chopper. Consequent to the fatal injuries inflicted upon the body of the deceased, she passed away at 2 a.m. on 10.8.2006 while she was undergoing treatment at Medical College Hospital, Thiruvananthapuram.

In connection with the above, Crime No.221/2006 was registered suo motu by PW16, the Sub Inspector of Police, Kadakkavoor Police Station and Ext.P14 is the First Information Report. The accused was arrested from the place of occurrence.

The prosecution examined PWs.1 to 17, marked documents Exts.P1 to P23 and material objects as MO1 to MO43. The contradictions in Section 161 statements of certain witnesses were marked as Exts.D1 to D4 by the defence.

After the trial, the appellant was questioned under Section 313 Cr.P.C. and the incriminating materials brought out against him by the prosecution were put to him. He pleaded innocence and stated that he happened to be in close acquaintance with the deceased Ms.Deepthi as he used to meet her during his daily commutation to Kollam, by train, where he was studying for Hotel Management course. PW1 was his classmate. The deceased Deepthi and her friends were studying in S.N.College, Kollam. On 9.9.2006, in order to make some inquiries, he went to the college and while he was returning from the college by Kollam-Thiruvananthapuram shuttle train, the train halted for crossing at Kadakkavoor at around 4.35-4.40 p.m. for a long time. At about 5 p.m., as the train was still at halt at Kadakkavoor, he thought of meeting Ms.Devi and Divya, two among the daily commuting friends of Ms.Deepthi. He also wished to see Ms.Deepthi, the deceased also, as her house was not very far from the railway station. Accordingly, he went there and he found the gate of the house open. When he entered the compound, he found the doors and windows were open. Even though he waited outside for 3 to 4 minutes, there was no response from inside. Accordingly, he peeped through the window and he found someone lying down on the floor. Immediately, he went inside and found Ms.Deepthi lying in a pool of blood and he attempted to lift her up. She informed him that someone had stabbed her. By that time, several persons rushed to the spot followed by police and questioned him as if he is the culprit and even though he pleaded his innocence, he was dragged into the police jeep, brutally tortured and taken to the police station. On analysis of the entire materials, the version of the accused was disbelieved by the Sessions Court to find the appellant guilty and he was sentenced as above.

Heard Adv.Nireesh Mathew, Learned Counsel for the appellant and Smt. Ambika Devi S., Special Government Pleader for Atrocities against Women and Children and Welfare of Women and Children.

The learned counsel for the appellant would contend that, he is innocent of the trumped up allegations and the evidence adduced by the prosecution is full of inconsistencies. The evidence of material witnesses; PW1 and PW2, are contradictory in material particulars and hence it cannot be relied upon. The time of commission of the offence as deposed by PW1, PW2 and PW16 were completely different, which affects the credibility of the prosecution case. The prosecution failed to establish the motive behind the crime which is a crucial omission. Material witnesses were not examined by the prosecution which according to him was intended to implicate him in this case falsely. The recovery claimed to have been made on the basis of his confession statement, from his residence, was not properly proved by the prosecution and hence the materials recovered, allegedly at his instance, cannot be relied upon. The learned counsel for the appellant is relying upon the judgments in Babu v. State of Kerala [(2010)9 SCC 189], Takhaji Hiraji v. Thakore Kubersingh Chamansingh & Others [(2001)6 SCC 145], Machindra v.Sajjan Galpha Rankhamb and Others [(2017)13 SCC 491], Sohan and Anr.v. State of Haryana and Another [(2001)3 SCC 620], Pannayar v. State of Tamil Nadu by Inspector of Police [(2009)9 SCC 152], State of Uttar Pradesh v. Kishanpal & Others[(2008)16 SCC 73] and G. Parshwanath v. State of Karnataka [(2010)8 SCC 593].

Per contra, the learned Special Government Pleader would contend that the contentions put forward by the learned counsel for the appellant are not legally sustainable. The prosecution established the offence committed by the appellant by adducing positive and direct evidence particularly that of PW1, PW2 and PW16. Reliance was also placed upon the scientific evidence wherein it was found that the dresses worn by the appellant at the time of occurrence contained blood stains which were identified to be that of the deceased. The presence of appellant in the place of occurrence is clearly proved as he was taken into custody from the scene of occurrence along with the weapons used for commission of crime. In such circumstances, it was urged that the appeal be dismissed.

The first aspect to be examined is the medical evidence to decide whether the death of the deceased was a homicide or not. Exhibit P1 is the postmortem certificate which was proved by PW4, the doctor who conducted the postmortem. The injuries noted were as follows:

Sutured incised wound 10cm long and 2.5cm deep horizontal, on the right side of face, its front end 5cm outer to angle of mouth. Lower end of right ear lobule seen cleanly cut over an area 2.5*0.5cm.

2 Incised wound 2*0.3*0.4cm,horizontal on the right side of back of neck,2cm below mastoid process 1cmbehind the back end of injury No.1 and in line with it.

Sutured incised penetrating wound 5.5cm long, and 2cm deep, obliquely placed on the right side of the back of head, its upper outer end 7cm behind the top of ear. The skull bone underneath seen cleanly cut for a depth of 1.5cm with corresponding clean cut on the dura. The outer aspect of right temporal lobe of brain was seen cleanly cut over an area 5*3*0.5cm surrounded by localized subarachnoid bleed. The wound was directed downwards and to the left. Brain showed flattening of gyri and narrowing of sulci.

Sutured incised wound 4.5cm long and 1.9cm deep, obliquely placed on the right side of back of head its upper outer end 4cm behind the top of ear. The bone underneath was found cleanly cut for a depth of 1cm.

Sutured incised wound 7cm long and 1.5cm deep, obliquely placed on the right side of head 1.5cm above the top of ear with corresponding clean cut in the bone underneath for a depth of 1cm.

Injury Nos.4 and 5 were in the same oblique line 4cm apart.

Lacerated punctured wound 1.2*0.3*2.5cm on right side of back of neck just to the right of midline and 5 cm above root of neck.

Lacerated punctured wound 0.9*0.3*2cm on the back of neck in the middle 3cm above root of neck.

Lacerated punctured wound 0.7*0.3*1cm on the left side of back of neck 2cm outer to midline and 9cm above root of neck.

Lacerated punctured wound 1*0.3*2.5cm on the left side or back of neck 5.5cm outer to midline and 3cm above top of shoulder.

Incised wound 7*0.2*0.2cm, horizontal on right side of back of neck, its inner end in the middle 3cm above root of neck with a contusion 5*1.5*0.3cm around.

Incised wound 1.2*0.2*0.3cm horizontal on left side of back of chest, its inner end in the middle just below root of neck.

Contusion 6*4*0.2cm on the top of left shoulder

Sutured lacerated penetrating wound 1cm long, on left side of back of chest 18cm outer to midline and 8cm below top of shoulder. The chest cavity was seen penetrated through the sixth left intercostals space on the back aspect and transfixed the lower lobe of left lung wound of entrance 3.5cm long and wound of exit 1cm long on under surface both found sutured with a wound track 2.5cm long in between. The wound track was seen directed forwards and downward for a total minimum depth of 5cm.

Sutured lacerated penetrating wound 1cm long on the front of chest 1cm to left of midline and 10cm below the top of breast bone. The chest cavity was seen penetrated through third left intercostals space, pierced pericardium (seen sutured for a length of 6cm) and transfixed the heart (wound of entrance: 1.5cm long sutured on the front of right ventricle 4 cm above apex and wound of exit 0.5cm long sutured on the back of left ventricle 3cm above apex). The wound was directed backwards and downwards for a total minimum depth of 5.8cm. left chest cavity contained 350ml of fluid blood and left lung collapsed.

Sutured lacerated puncture wound 1.2cm long and 3.5cm deep on the back of trunk in the middle 30cm above natal cleft with a tailing 1.5*0.2cm directed downwards and to the right.

Lacerated puncture wound 0.5*0.3*0.5cm on the back of trunk 20.5cm below root of neck.

Sutured lacerated puncture wound 1cm long and 3cm deep on the back of chest 9.5cm to right of midline and 18cm below top of shoulder.

Sutured lacerated puncture wound 1cm long and 3.5cm deep on right side of back of trunk 5cm to right of midline and 8cm above top of hip bone.

Sutured lacerated puncture wound 1cm long and 2.5cm deep on the back of trunk in the middle 17cm above natal cleft. The muscles underneath and tip of third lumbar vertebral spine (0.5cm deep) seen cleanly cut.

Sutured lacerated wound 1.5cm long and 0.5cm deep, oblique on the tip of right eyebrow.

Sutured incised wound 1.5cm and 0.5cm deep, oblique on the front of left index finger, its lower outer end 1.5cm above its tip.

Sutured incised wound 1.5cm long and 0.5cm deep oblique on the front of left middle finger its lower outer end 3.5cm above its tip.

Sutured incised wound 1.5cm long and 0.5cm deep, oblique on the front of left ring finger, its lower outer end 5cm above its tip.

Incised  wound  1.5*0.3*0.5cm  oblique  on  the  front aspect of root of left little finger. Injury Nos.21 to 24 were in the same oblique line.

Incised wound 2*0.5*0.4cm on the inner of right ankle .

Surgical sutured laparatomy wound 15.5cm long vertical on the front of abdomen in the middle 5cm below lower end of breast bone. The muscles underneath seen sutured.

Surgical sutured drainage wound 3cm long on left side of chest 7cm below armpit.

Surgical tracheotomy wound 27cm long on left side of chest and adjacent part of back, its front end 13cm below front fold of armpit. The muscles of left fifth intercostals space found sutured. Pericardium was seen incised and kept open.

Two sutured surgical drainage wounds each being 2cm in length, one behind the other on left side of chest 3.5cm below injury No.28. Injury Nos.8,14,16 and 19 were having shape

The blood group of the deceased was found to be O RH +ve. The opinion, as to the cause of death was that, it was due to penetrating injuries sustained to the head and left side of the chest. The injuries mentioned as Sl.Nos.3, 13 and 14 were independently sufficient to cause death. MO3 chisel was shown to the witness and after examining the same, it was deposed that injury numbers 8,14,16 and 19 could be caused by the said weapon. PW5 is an Associate Professor of Surgery of Medical College Hospital, Thiruvananthapuram. PW5 deposed that on 9.8.2006 at 6 p.m. she examined the deceased when she was brought to her with the history of alleged assault, at home. The victim who was found drowsy, said that she was stabbed by someone. But immediately, she collapsed. Even though the deceased was subjected to emergency surgery, she succumbed to the injuries later. From the above evidence, it is clearly established that, the death of the deceased was a homicide which occurred due to the injuries inflicted upon her body. This leads us to the next question as to whether it was the appellant herein who committed the murder, as contended by the prosecution.

The prosecution, to establish the case against the accused, relies mainly upon the evidence of PW1, PW2 and PW16. PW1 Rojin Noble has stated that, he and the appellant used to regularly commute to Kollam by train. PW1 was involved with the deceased in a love affair, and on 9.8.2006, both of them talked over phone for one hour at about 4 o'clock in the evening (later in cross examination he clarified that they talked over phone between 3 PM and 4 PM). In the course of the conversation, the deceased disconnected the phone stating that she will call back. After some time, at about 4.15-4.20 PM, she called again and stated that Vaishakh(Appellant) had come and he is threatening to kill her. She told him that the accused threatened her with a knife, forced her to drink something and she also pleaded for help. PW1 then, asked Deepthi to hand over the phone to the appellant and thereupon, the appellant threatened PW1 that he will kill her and PW1. Immediately, PW1 called PW2 Limna, a friend and neighbour of the deceased, over his phone which was attended by her sister. He told Limna's sister about what was happening in the house of the deceased. He again called PW2 Limna, and at that time she attended the call and PW1 instructed her to go to the house of the deceased. She informed him that the accused was inside the house of the deceased and hence PW1 instructed her to call for help of the local people. Five minutes thereafter, he again called her and her phone was engaged. Immediately, he contacted one Shibu at Varkala and told him what transpired. Later, he was informed that Deepthi succumbed to the injuries. PW1 has also stated that he and the appellant used to commute by train daily to Kollam as they were students of Hotel Management Course at Kollam. The deceased along with Limna, Vidya and Deepa also used to travel in the said train to Kollam and they got acquainted during the daily journey to and from the college. The relationship with the deceased developed in the regular commute. During the course of cross examination, he stated that he is not aware as to whether the deceased and the appellant were in love.

PW2 is Limna, who was present in the scene of occurrence at the relevant time. She also deposed in tune with the deposition of PW1. She, was a regular companion of the deceased and she was residing near to the residence of the deceased. Since her house had no parking facility, her car used to be parked in the car porch of the deceased. On the date of occurrence, she went to the house of the deceased to take her car. She stated that as there was no response from Deepthi when she called her from outside the house, she peeped through the window to find that the appellant was standing inside the hall and the deceased was lying on the floor. On seeing her, the appellant yelled at her and questioned her presence. She then, got down from the sit-out of the house and it was at that point of time, PW1 called her. It was then, at about 5 o'clock, PW1 instructed her to go to the residence of the deceased since the appellant was present there and he was threatening to kill Deepthi. After disconnecting the phone, she called her family and informed them about what was happening. Thereafter, she requested the help of the local people who gathered at the spot and a patrol vehicle happened to come to the location. Upon being informed of the incident, they entered the house through the back door of the house, as the front door was locked and found the deceased lying on the floor of the hall. When the police went inside, the appellant was not in the hall. But later, it was found that, the toilet was locked from inside. When the police opened the toilet forcibly, the appellant came out. She identified the dress worn by the deceased at the relevant time. It was marked as MO1. The shirt which was worn by the appellant when she had seen him standing in the hall, was identified as a black shirt which was marked as MO2. She was subjected to lengthy cross-examination by the learned counsel for the appellant but her evidence could not be discredited. However, she stated that she was not aware of any romantic relationship between the deceased and the accused.

The evidence of PW1 and PW2, is clearly supported by the evidence of PW16 who was the Sub Inspector of Police, Kadakkavoor Police Station. He is the person who registered Ext.P14 F.I.R. and he deposed that on 9.8.2006 while they were on patrol duty, by about 5.45 p.m. when they reached at Chekkalavilakom Oottuparambu temple, they found a gathering of people. On inquiry, they were informed by a woman that one person is standing inside the nearby house and she led them to the said house. Even though they called upon the inmates to open the front door, there was no response. Therefore, they accessed the house through the back door, attached to the grill on the work area of the said building. They found the deceased lying on the floor of the hall in a pool of blood with a chisel (MO3) embedded on her back. PW16 made arrangements for taking her to the hospital and continued further inspection of the house. Thereupon, it was found that the door on the northern side of the hall was locked from inside. He went outside, broke the ventilator and found that the appellant was standing inside. Even though he was asked to open the door, he did not do so. In such circumstances, PW16 broke down the door and went inside. PW16 saw the appellant with a knife pointed to his chest and was attempting to inflict injuries on himself. PW16 managed to pacify him and thereby persuaded him to drop the knife. At that time, he was wearing a white baniyan (vest) and a black pants which were taken into custody and marked as MO8 and MO7 respectively. The shirt, and personal belongings such as identity cards,season ticket of train etc, of the accused were also recovered from the scene of occurrence by preparing Ext.P5 mahazar.

The learned counsel for the appellant would point out that there are several discrepancies in the evidence of PW1,PW2 and PW16. One of such discrepancy highlighted is regarding the time of incident. The learned counsel points out that, according to PW1, the deceased called him at 4.15 p.m. and immediately thereafter, he called PW2. On the other hand the evidence of PW2 reveals that PW1 contacted her at 5 p.m. According to PW16, it was at 5.45 p.m. they reached the spot. The learned counsel for the appellant highlights that the discrepancies in the timing is very serious, and creates a shadow of doubt in the prosecution case. However, we are of the view that the same is not a material inconsistency. It would be impossible for a person to clearly notice and record the exact time, particularly when the incident revealed through the evidence of the said witnesses are too intense to give any attention to the exact time. In our view, even though there was some difference as to the exact time of the offence, the crucial aspect is that the said timings are falling within a time frame; about one and half hours, which is a reasonable and normal variation. In our view, when the evidence of the said witnesses provide mutual corroboration on the other material particulars, marginal difference in the time is not sufficient to cast a suspicion about the credibility of the witnesses.

Yet another discrepancy urged is that, PW1 has stated that, when he called PW2, he instructed her to go to the house of the deceased and accordingly she went there by holding the phone and she informed PW1 that the appellant was inside. On the other hand, PW2 has stated that when she found the appellant inside the hall of the residence through the window she stepped outside the sit-out of the house and at that point of time PW1 called her. She did not say anything and just went outside and gathered the local people. In our view, the said contradictions also cannot be treated as a major one so as to discredit the evidence of the said witnesses as a whole. Such discrepancies are likely to occur when people recount an event they witnessed, especially one as harrowing as the brutal murder of a friend. When we examine the evidence of both the said witnesses as a whole, it can be seen that their narratives indicate a clear picture of the sequence of events that occurred in the residence of the deceased at that point of time. Moreover, the evidence of PWs.1 and 2 are clearly corroborated by the evidence of PW16 as his evidence is also in tandem with their testimony. In such circumstances, we do not find any valid reason to disbelieve the testimonies of the said witnesses.

It is true that; as argued by the learned counsel for the appellant, that the evidence of the said witnesses would indicate that they had not seen the incident of inflicting the injuries upon the deceased. The crucial aspect to be noted in this regard is that the deceased was found in a pool of blood and a weapon was struck on her back side. The presence of the appellant in the scene of occurrence during the course of events is established through the evidence of PW1, PW2 and PW16. The words uttered by the appellant to PW1 and PW2 were clearly mentioned by them, and the same also indicate his involvement in the commission of the crime. Similarly, the evidence of PW2 and PW16 clearly indicate that, when police went inside the hall, they found the appellant having locked himself in the bath room and despite persuasion from police, he did not come out. The police broke open the door and even at that point of time, he was holding a knife (MO 25) and attempting to inflict injuries on himself. The testimony of the witnesses and the clear picture emerging therefrom provide sufficient proof of the circumstances, to unerringly connect the appellant with the offence. Even though an attempt was made to explain his presence in the scene of occurrence, through the statement made by him under Section 313 Cr.P.C , it was not substantiated. On an overall examination of the sequence of events as revealed from PWs.1,2 and 16, we have no reason to believe the statements made under Section 313 examination. This is particularly because the presence of the appellant, coupled with his conduct as revealed through the above witnesses are incriminating circumstances against the appellant. The words uttered by him to PWs 1 and 2 is yet another circumstance inculpating the appellant.

The learned counsel for the appellant would point out that, PW5, the doctor who examined the deceased immediately after the incident, deposed that, the deceased had stated to her regarding the cause of injury as one due to stabbing by a person, but the victim did not mention the name of any person. In our view, non mentioning of the name of the appellant is not very crucial, particularly because, it was specifically stated by PW5 that, immediately after the deceased conveyed the cause of injury, she collapsed and was not in a position to continue the conversation. Thereafter, she did not recover and ultimately the deceased succumbed to the injuries. In such circumstances, it was not possible to elicit any further information from the deceased and hence the assailant having been not named cannot be treated as very crucial.

Apart from the above materials, there are scientific evidences in support of the guilt of the accused. PW12 is the Assistant Director of Serology Forensic Science Laboratory, Thiruvananthapuram who inspected the scene of occurrence immediately after the incident along with the investigating officer. Several articles and blood samples which were found in the place of occurrence were collected by him and subjected to forensic examination. Ext.P9 is the report of the scientific examination. The results of the examination reveal that item Nos. 1,3,5,6,10,19,20, 22 to 26, 28 to 30 and 32 contained human blood belonging to the group O positive; item No.10 therein is the shirt (MO2) worn by the appellant at the time of commission of the offence. Item No.19 is the metalic chopper (MO25). Item No.26 is MO3 chisel with metallic blade. Item No.29 is the pants (MO7) worn by the appellant. Item No.30 is the half sleeve vest (MO8) worn by the appellant. Item No.32 is the wrist watch worn by him. The postmortem report reveals that the blood group of the victim was 'O' RH +ve. His presence in the place of occurrence, coupled with the blood samples found in the dresses worn by him, tested to be of the blood group of the victim, is a crucial evidence against him. Similarly the weapons recovered from the scene of occurrence also contain stains of 'O' positive blood. All these assume special significance when the story explaining his presence at the scene is found to be not credible or believable.

Another evidence highlighted by the prosecution is the use of magnetic materials struck on the blood of the chopper (MO16) and albumin laden syringes found in the premises. PW12 has explained that albumin being a foreign material, if mixed with blood, can cause infection. PW13 is the Assistant Director, FSL, Thiruvananthapuram who examined the metalic blade of the chopper and the granules found struck on the metallic blade. After examination he certified as per Ext.P10 report that articles mentioned above are having magnetic features. He also explained that when the magnetic particles come in contact with blood, physiological changes can happen ie. the iron content in blood will come in contact with magnetic particles and changes occur in the composition of blood. However, we notice that much significance cannot be given to the said evidence as the cause of death as revealed from the postmortem certificate does not indicate the impact of the said articles in causing the death of the deceased. Moreover, as per Ext P9 FSL report, no human blood could be detected on MO16, and thus, there is no evidence that the same was used for commission of crime.

The prosecution also relies on certain articles recovered from the pocket of the shirt which the appellant was wearing at the time of incident. Among the said articles there were Ext.P12(a) series of letters claimed to have been written by the appellant. Ext P12 (a) series contain several letters, addressed to appellant's parents, brother and to PW1. The letter addressed to PW1 reveals his grudge towards PW1 on account of his relationship with the deceased. Appellant also addressed letters to his parents and attempted to reveal the frustration in his mind. Another letter contained his wishes and good advise to his younger brother to take care of their parents. It also contained an admission on his part as to his involvement in the act, an extra judicial confession. The prosecution relies on the said evidence to establish his per-meditated design to commit the crime. However, we find the said letters cannot be relied upon for more than one reason. First of all, the contents of the said letters were not proved as none of the witnesses have stated about the same. Secondly, the learned counsel for the appellant seriously disputes the veracity of the said letters and also contends that there is nothing to indicate that the same was written by the appellant. In order to prove that the said letters were written by the appellant, the prosecution relied upon evidence of PW15 handwriting expert and Ext P12 report prepared by her after comparing certain hand writings claimed to be that of the appellant, which were recovered from the residence of the appellant. The said recovery was effected on the basis of a confession statement made by the appellant while he was in police custody. The said articles were recovered as per Ext.P6 seizure mahazar. PW9 is the witness to the said mahazar. However, we are of the view that the evidence of PW9 is not credible. He deposed that, he accompanied the police while they were going to the house of the appellant, in a car arranged by the father of the victim. In such circumstances, the chances of he being a planted witness cannot be ruled out. Even the Sessions Court did not accept his evidence and we also find that the same is not at all reliable. It is true that the articles recovered on the basis of the said admission from the residence of the appellant contained several materials containing the hand writings claimed to be that of the appellant. PW15 is the hand writing expert who compared the signatures and found that those were written by the same person. However,as the recovery of the articles including the materials containing the hand writing of the appellant were not properly effected and therefore unreliable, the said materials cannot come to the aid of the prosecution. In other words, since the standard writings of the appellant were procured through an un-acceptable mode, no reliance can be placed upon the findings of PW15. But we notice that Ext.P12(a) series of letters are only one of the several materials on which the prosecution relied upon and we have already found that there is direct evidence in the form of depositions of PW1 and PW2 which stands corroborated by the evidence of PW16, as well as other scientific evidence to establish the guilt of the appellant. In such circumstances, our finding on Ext.P12(a) series of letters would not affect the prosecution case as such.

By placing reliance upon broken piece of magnet used in loud speakers (MO 42) and (MO 43)stone claimed to be used by the appellant to break the said magnet, the prosecution attempted to establish the preparation of the appellant to commit the offence. The broken piece of magnet was intended to establish that, the granules found stuck on MO16 knife, was part of the said magnet. Mos 42 and 43 were recovered as per Ext P6 mahazer and we have already found that the recovery effected as per the same, is not reliable. In such circumstances, the evidentiary value of the said MOs are to be eschewed.

Another contention put forward by the learned counsel for the appellant is regarding the failure on the part of the prosecution to prove the motive. The specific case of the prosecution is that the motive behind the commission of the crime is the enmity of the appellant which emerged from the fact that, even though he was in a romantic relationship with the deceased, she abandoned him and commenced one with PW1. From the materials available on record, we are unable to find anything indicating such relationship. PW1 and PW2 have not spoken about any romantic relationship which existed at any point of time with the appellant and the deceased. In support of the contention as to the necessity to prove the motive, the learned counsel for the appellant relies upon several decisions in this regard such as Babu v. State of Kerala [(2010)9 SCC 189], G. Parshwanath v. State of Karnataka [(2010)8 SCC 593], Pannayar v. State of Tamil Nadu by Inspector of Police [(2009)9 SCC 152]. We notice that the judgments referred above, where cases in which the prosecution was relying upon circumstantial evidence and it was held that motive is crucial. However, when there are other materials connecting the accused directly with the offence and are sufficient to hold him guilty, lack of evidence establishing the motive, would not affect the prosecution case. In Babu's case (supra), in paragraph 25, the Hon'ble Supreme Court was pleased to observe as follows:

"25. In  State  of  U.P.  v.  Kishanpal  this  Court  examined the importance of motive in cases of circumstantial evidence and observed:(SCC pp.87-88, para 38-39)

"38... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.

The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused , the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

We have already found that, evidence of PW1, PW2 and PW16 clearly establish the involvement of the appellant. In the light of such clear evidence, the failure on the part of prosecution to establish the motive loses its significance.

The learned counsel for the appellant would further contend that,PW3, the mother of the victim has stated that, on the fateful day, she left the house to go to a hospital along with her elder daughter. The father of the deceased was also not in the house as he went to Chathanoor. On that day, the deceased was not having classes. When she left the house, she instructed one Bindu, one of her neighbours to be in her house along with the deceased, until they return. By placing reliance upon this evidence, the learned counsel for the appellant would contend that the said Bindu was a crucial witness and failure to examine her, is a clear omission which affects the veracity of the prosecution case. In support of the contention, he relies upon Takhaji Hiraji v. Thakore Kubersingh Chamansingh & Others [(2001)6 SCC 145], Machindra v.Sajjan Galpha Rankhamb and Others [(2017)13 SCC 491] which are the judgments rendered by the Hon'ble Supreme Court on the aspect of non examination of material witness. We notice that, in this case, even though PW3 has stated that she had instructed the said Bindu to be there in the house of the deceased, there is nothing to indicate her presence in the said house at the relevant point of time. PW3 has also not stated that the said Bindu actually went to the residence of the deceased in compliance of the instruction by her. As there is nothing to indicate the presence of Bindu at the relevant time, we do not think that it is an omission on the part of the prosecution. In Takhaji Hiraji's case (supra) the Hon'ble Supreme Court observed that if overwhelming reliable evidence is already available and the examination of other witnesses would only be a repetition, non examination of such witnesses would not affect the prosecution case. In this case we have already found that there is ample evidence in the form of deposition of PW1, PW2 and PW16, to prove the guilt of the appellant. In such circumstances, non examination of the said Bindu is not a matter of crucial importance and therefore the contention of the learned counsel for the appellant in this regard is only to be rejected.

Thus from the above materials, we are fully satisfied that the prosecution was able to establish the guilt of the accused beyond any reasonable doubt. The presence of the appellant and his involvement is clearly evident from the depositions of PW1 and PW2. Their evidence is corroborated by PW16, Sub Inspector of Police who registered the FIR and arrested the appellant from the spot. The evidence of PW16 would further prove that the appellant had locked himself in a bath room and was hesitant to get out of the bath room even when the deceased was lying outside in a pool of blood. Similarly, the words uttered by the appellant to PW2 directly, while she saw him in the hall and also to PW1 when he spoke with the appellant through phone are materials, which cannot be ignored. The said conversations clearly indicate his involvement in the commission of the crime. The stains of blood, of group 'O' Rh +ve, which is the blood group of the victim, was found on the personal belongings of the appellant and the same was proved through PW12. In such circumstances, we find the accused guilty of the offence punishable under Section 302 IPC and we confirm the findings entered into by the Sessions Court in this regard.

As we have already found the presence of the accused in the place of occurrence, which is the residence of the deceased, the offence under Section 449 IPC also stands proved. Accordingly the conviction entered into by the Sessions Court for the said offence is also confirmed. Another offence for which the appellant was found guilty is under Section 309 IPC. The crucial materials relied upon by the prosecution to prove the attempt on the part of the appellant to commit suicide were the letters claimed to have been written by him and were recovered from the shirt worn by him at the time of occurrence. We have already found that Ext.P12 report of the handwriting expert cannot be relied upon in view of the fact that the said report is based on a comparison of the handwriting contained in Ext.P12 letter with that of the materials allegedly recovered from the residence of the appellant. We have already found that the recovery effected from the house of the appellant is not reliable and trustworthy. It is true that PW16 deposed that when he opened the door of the toilet in which the appellant had locked himself, he found the appellant trying to inflict injuries on himself. However, in our view, that circumstance alone would not be sufficient to attract the offence under section 309. The threat of committing injuries on himself made by the appellant could be an attempt to deter PW16, a police officer, and to prevent him from arresting the appellant, who was cornered in a toilet. We have no materials before us to arrive at the conclusion that the appellant had an intention to commit suicide, especially when he was alone for quite a long time and had not inflicted any injuries on himself despite having a weapon. In such circumstances, we find the appellant not guilty of the offence under Section 309 IPC.

Thus on the basis of the above observations, we hereby confirm the finding of conviction and sentence of the Sessions Court under Sections 302 and 449 IPC. However, we hold the appellant is not guilty of the offence punishable under Section 309 IPC and accordingly, the appeal is partly allowed to that extent.