Nanu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943** **CRL.A NO. 1034 OF 2006** **AGAINST THE JUDGMENT IN SC 745/2003 OF ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-1), KOZHIKODE** ## **APPELLANT:** **NANU, S/O. CHEKKINI,** **CHANDANANDIPOIL HOUSE, MUTHUKUTTI,, CHUZHALI, VALAYAM (POST).** **BY ADVS. SRI.C.VALSALAN SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT:** **STATE OF KERALA (BY CIRCLE INSPECTOR OF POLICE OF NADAPURAM IN CRIME NO.98/02 OF VALAYAM, POLICE STATION), REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, COCHIN.** ## **BY ADV PUBLIC PROSECUTOR** **SRI SANAL P RAJ,PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 1034 OF 2006 -2- ## **J U D G M E N T** This appeal has been filed by the accused in S.C No.745 of 2003 on the files of the Additional District and Sessions Court Fast Track (Adhoc-1), Kozhikode, against the judgment dated 10.05.2006, convicting him under Section 307 of IPC. 2. The prosecution case in short is that on 16.05.2002 at 7 a.m while PW1 was having tea at the shop bearing building No.VP V/362, the appellant/accused who is his brother in law caused grievous hurt on his neck and hand with a chopper with an intention to commit murder and thereby committed the offence. 3. Immediately after the incident, PW1 was taken to Vadakara Government Hospital. Since the injuries were found to be serious, he was referred to Medical College Hospital, Calicut. CW1, ASI, Valayam Police Station, recorded the First Information CRL.A NO. 1034 OF 2006 -3- Statement of PW1 at the hospital. It was marked as Ext.P1. On the basis of Ext.P1, CW1 registered crime against the accused. Ext.P10 is the FIR. PW11, the Circle Inspector, Nadapuram, conducted the investigation. MO1 chopper used for the commission of the offence was seized as per Ext.P2 seizure mahazar consequent to the disclosure statement made by the accused while in police custody. PW11 completed the investigation and filed the final report before the Magistrate. The learned Magistrate after completing the statutory formalities committed the case for trial to the Court of Sessions. 4. The accused appeared at the court below. After hearing both sides, charge under Section 307 of IPC was framed against the accused. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PW1 to PW11 and marked Exts.P1 to 13. MO1 to MO3 were identified. The accused was questioned under Section 313 of Cr.P.C. He denied all the CRL.A NO. 1034 OF 2006 -4- incriminating circumstances brought against him during evidence. No defence evidence was adduced on his side. 6. Considering the evidence on record, the court below found the accused guilty under Section 307 of IPC and convicted him for the said offence. He was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for a period of one year. Aggrieved by the said conviction and sentence, the accused preferred this appeal. 7. I have heard C.Vathsalan, the learned counsel for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor. 8. The learned counsel appearing for the appellant impeached the finding of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that there is a delay of fourteen hours in launching the FIR which has not been explained by the prosecution. The learned counsel also submitted that the CRL.A NO. 1034 OF 2006 -5- recovery of MO1 chopper was not proved in accordance with law. The learned counsel also submitted that the prosecution could not properly prove the place of occurrence. The counsel added that, at any rate, Section 307 of IPC will not be attracted on facts. 9. The learned Public Prosecutor, on the other hand, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 307 of IPC had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 10. The prosecution mainly relied on the oral testimony of PW1 to PW3, PW5 to PW7, PW11 and Exts. P3, P4 and P13 to prove the incident and to fix the culpability on the accused. PW1 is the injured. PW2 and PW3 are eye witnesses. PW5 is the witness to Ext.P3 seizure mahazar by which MO1 chopper was seized. PW6 and PW7 are the doctors who treated PW1. Ext.P4 wound certificate and Ext.P13 case sheet were marked through them. PW11 is the Investigating Officer. CRL.A NO. 1034 OF 2006 -6- 11. The accused is none other than the brother-in-law of PW1. It has come out in evidence that their relationship was not cordial. PW1 gave evidence that on 16.05.2002 at 7 a.m, while he was having tea at the tea shop belonged to PW3, which is situated nearer to his house, the accused came to the tea shop carrying a chopper through his backside and assaulted him with the chopper on the back of his neck whereby he sustained the injury. He further deposed that when he stood up, the accused made another cut to him and when obstructed with his left hand, it fell on his left forearm and sustained injuries therein. He also deposed that immediately thereafter, the accused ran away through the road, and PW2, PW3 and one Kunjikannan came there and took him to Vadakara Hospital from where he was referred to Medical College Hospital. He added that his statement (Ext.P1) was recorded by the Police Officer at the Medical College Hospital. He also deposed that he was hospitalized for a period of one month. The motive for the attack as spoken by him was CRL.A NO. 1034 OF 2006 -7- that, it was on account of some dispute related to the property of his father. He also stated about the presence of PW2 and PW3 near to the place of occurrence. 12. PW2 is the eye witness. He was in the tea shop where the incident was taken place at the time of the incident along with PW1. He gave evidence that while he and one Kunhikanan and others were taking tea at the tea shop of PW3, he saw the accused going through the road with his cow. After a while, the accused tied the cow on an electric post situated by the side of the road and came to the tea shop through the back compound. He further deposed that the accused came behind PW1 and made a cut blow with a chopper to the neck of PW1 who sustained injuries. Immediately, PW1 stood up and the accused again made another cut. Then, PW1 warded off it and the cut fell on his left arm. He further deposed that the accused ran away through the road carrying the weapon and thereafter he, PW3 and Kunhikannan took PW1 to the Government Hospital CRL.A NO. 1034 OF 2006 -8- Vadakkara, from where he was referred to Medical College Hospital. 13. PW3 is the owner of the tea shop where the incident was taken place. He was conducting a tea shop as well as stationery business in the same shop. He deposed that on 16.05.2002, while PW1, PW2, one Kunhikannan and others were taking tea at his shop, he saw the accused passing through the road with a cow and a chopper in his arm. After a while, the accused tied the cow on an electric post situated nearby the road and came to the tea shop through the back compound and made a cut blow to the neck of PW1 with a chopper and thereby PW1 sustained injury to his neck. He also deposed that suddenly PW1 stood up and again the accused made another cut with the weapon which was obstructed by PW1 and fell on his left forearm. He added that then the accused ran away with the weapon towards the roadside and he and others took PW1 to Vadakara Hospital from where he was referred to the Medical CRL.A NO. 1034 OF 2006 -9- ## College Hospital. 14. PW1 to PW3 were cross-examined in length by the learned counsel for the accused. But nothing tangible has been extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. They gave reliable, consistent and credible version of the crime and their evidence inspires confidence. PW1 clearly deposed that the accused attacked him behind his back and stabbed him with MO1 chopper. PW2 and PW3 clearly deposed that they saw the accused coming through the backside of the tea shop and assaulting PW1 on his neck with the MO1 chopper. It is trite that the evidence of the injured witness has to be given much weightage. Where a witness to an occurrence, has himself/herself been injured in the incident, the testimony of such witness is generally considered to be very reliable as is he/she is a witness that comes with a built-in guarantee of his/her presence in the scene of the crime and is unlikely to spare the actual assailant in order to falsely implicate CRL.A NO. 1034 OF 2006 -10- someone. The said legal proposition has been upheld by the Supreme Court of India in a catena of decisions. In **S** _**tate of Uttar Pradesh V. Naresh and Others**_ [(2011) 4 SCC 324], it was held that the testimony of injured witness must be given due weightage. It is pertinent to note that PW1 is none other than the brother in law of the accused. It is not in dispute that PW1 has sustained serious injuries. Not even a suggestion was put to PW1 or to any other witnesses that PW1 wanted to falsely implicate the accused who is none other than his brother-in-law. 15. The learned counsel for the appellant relying on Ext.P2 scene mahazar and evidence of PW4 and PW8, argued that the incident was taken place inside the tea shop of the PW3 and there is no material on record to show that there was access from the rear side of the tea shop and hence the prosecution version that the accused came behind PW1 and attacked him cannot be believed. The counsel further argued that the exact place of occurrence has not been properly proved by the CRL.A NO. 1034 OF 2006 -11- prosecution. Ext.P6 is the sketch. The tea shop faces west. A reading of Ext.P2 would show that the wall on the northern and southern side of the tea shop is only half wall where one can sit. PW11 deposed during cross-examination that the wall situated on the eastern side also is a half wall. Both the eye witnesses clearly deposed that the accused came to the tea shop through the backside. Since the wall on the northern, southern and eastern side of the tea shop are half walls, one can easily enter the tea shop. The place occurrence has been clearly deposed by the occurrence witnesses. Therefore, I am of the view that the said contention has no basis. 16. PW1 to PW3 gave evidence in tune with the prosecution case. They clearly deposed about the incident. No vital contradictions or materials omissions were brought out in their evidence. They deposed the manner in which the accused attacked PW1 and the nature of the weapon used by him and the part of the body of PW1 whereupon the injuries were inflicted by CRL.A NO. 1034 OF 2006 -12- the accused. They identified MO1 as well as the accused at the court. Therefore, I hold that the evidence of PW 1 to PW3 could be safely relied on to prove the incident and to fix the culpability on the accused. 17. The evidence of the injured and occurrence witnesses get corroboration from the medical evidence. PW6 is the doctor who examined PW1 at the Government Hospital, Vadakara on the date of the incident at 8 a.m and issued Ext.P4 wound certificate. The injuries sustained by PW1 are stated in Ext.P4. He deposed that since the injuries were serious in nature, he gave first aid and referred the patient to the Medical College Hospital, Calicut. He further deposed that injury No.1 in Ext.P4 is a serious one and the patient may die by the said injury. He also deposed that the said injury could be caused by MO1. In the history column of Ext.P4, it is stated that the accused assaulted PW1 with a chopper. The learned counsel for the appellant argued that Ext.P4 does not contain serial number and column CRL.A NO. 1034 OF 2006 -13- No.8 is kept blank and as such it has to be presumed that it is a concocted document. Ext.P4 was marked through PW6. No question was put regarding the absence of serial number or keeping column No. 8 blank, to PW6. PW6 deposed that it was he who issued Ext.P4 and it bears his signature. He identified his signature as well. Ext.P4 was not challenged at all during the examination. There was no suggestion that it was a concocted document. This argument has been advanced for the first time at this Court which, no doubt, deserves to be rejected. PW7 is the doctor at Medical College Hospital, Calicut who treated PW1 and issued Ext.P5. Ext.P13 is the case sheet of PW1 which was also marked through PW7. His evidence coupled with Exts.P5 and P13 would show that PW1 was hospitalized at the Medical College Hospital from 16.05.2002 to 10.06.2002. PW7 deposed that PW1 had a compound fracture upper one-third in the left radius. He further deposed that PW1 had a cut wound of size 10x5x3cm on the back of his neck and another cut wound of size 4x2x0.5cm on CRL.A NO. 1034 OF 2006 -14- the back of his left forearm. He also deposed that those injuries are serious in nature and could be caused by MO1 chopper. The learned counsel for the appellant submits that in crossexamination, PW7 has admitted that the fracture sustained by PW1 could also be caused by way of fall. However, the witness has explained that the fracture stated in Ext.P13 cannot be caused by way of fall. Moreover, PW7, in clear terms, stated that the two injuries noted in the case sheet could not be caused by way of fall on a sharp and hard surface. Thus, I am of the view that the medical evidence also supports the oral evidence adduced by the prosecution. 18. The next piece of evidence relied on by the prosecution is the recovery of MO1 weapon consequent to the disclosure statement made by the accused while in police custody. The evidence of PW11, the Investigating Officer, coupled with Exts.P8 and P9 arrest memo and inspection memo would show that PW11 arrested the accused on 17.05.2002. PW11 CRL.A NO. 1034 OF 2006 -15- deposed that while in police custody, the accused gave disclosure statement that the chopper used for the commission of the offence was thrown by him in the property of one Kunhiraman situated at Poyiluparambath and if he was taken there, he will show the place where the chopper was thrown. PW11 deposed that based on the said statement and as lead by the accused, he along with the accused went to the place at Muthukutti where the MO1 weapon was stated to be thrown and when they reached the said place, the accused showed him MO1 weapon which he seized as per Ext.P3 mahazar. MO1 weapon has been identified by PW11. This evidence has been strongly relied on by the prosecution as one falls within the purview of Section 27 of the Evidence Act. 19. The learned counsel for the appellant challenged the recovery for more than one ground. First of all, the learned counsel submitted that the original of the confession statement or at least the relevant portion of it was not produced. What is CRL.A NO. 1034 OF 2006 -16- produced is only the mahazar, which contains a relevant portion of the confession statement. Secondly, the learned counsel submitted that PW5, a witness to the recovery, did not fully support the prosecution. In support of his argument, the learned counsel relied on the decision of the Supreme Court in **Mujeeb and another vs. State of Kerala** (2000 KHC 1625) and recent decision of the Division Bench of the Kerala High Court in **Sanjay Oraon v.State of Kerala** (2021 (5) KHC 1 (DB). In **Mujeeb** (supra), the Supreme Court observed that the actual words in verbatim leading to recovery should be recorded by the Investigating Officer. In **Sanjay Oraon** (supra), a Division Bench of this Court has held that the statement made by an accused provable under Section 27 of the Evidence Act should be recorded by the Police Officer concerned, in the first person, that is to say, as far as possible in the actual words of the accused. 20. I have gone through Ext.P2 mahazar. I find that the CRL.A NO. 1034 OF 2006 -17- actual words in verbatim as stated by the accused while in police custody have been recorded in first person in Ext.P2 by PW11. In both of the decisions, it is not stated that the original confession statement has to be produced. The confession statement, except the portion that falls within the ambit of Section 27 of the Evidence Act, is inadmissible and hence the production of the original confession statement as such cannot be insisted. As to the second submission of the learned counsel, it is true that the evidence of PW5 is shaky. Though in chief examination and in the later part of the cross-examination he deposed that he witnessed the recovery, in the initial part of the crossexamination, he stated that he did not witness the recovery. But still, I see no reason to disbelieve the evidence of PW11 with regard to the recovery of MO1. Even though he has been crossexamined in length as to the recovery, nothing has been brought out in cross-examination to discredit his testimony. Hence, I hold that the recovery of MO1 weapon stands proved clearly by CRL.A NO. 1034 OF 2006 -18- the prosecution. 21. The learned counsel for the appellant vehemently argued that there is unexplained delay in launching the FIR. According to him, there is a delay of fourteen hours. The incident was taken place at 7 am. Ext.P4 would show that PW1 was examined at the Vadakara Hospital at 8 a.m. The evidence would show that he was thereafter taken to Medical College Hospital. Ext.P5 would show that PW1 was treated in the Medical College Hospital at 10.53 am. Ext.P1 would show that the FI statement was recorded by the ASI of Valayam Police Station, which is at Nadapuram. ASI of Police, Nadapuram, went all the way from Nadapuram to Medical College Hospital, Calicut and recorded the statement of PW1 and came back to Valayam Police Station and registered FIR. FIR was registered at 7 p.m. In these circumstances, it cannot be said that there is undue delay or even delay as argued by the learned counsel for the appellant. That apart, the delay is fatal only when doubt as to the genesis CRL.A NO. 1034 OF 2006 -19- or genuineness of the prosecution case is borne out from the prosecution records. There is absolutely no doubt as to the genuineness or the genesis of the prosecution case. Moreover, not a single question was put to the Investigating Officer as to the alleged delay, when PW11 was examined. It is pertinent to note that no question was put to PW1 as well in this regard. Hence, I am of the view that the said contention of the learned counsel must fail. On a careful examination and appreciation of the entire evidence on record, I have no hesitation to come to the conclusion that the prosecution has successfully established that the accused inflicted injury on PW1 with MO1. 22. The next question that arises for consideration is whether the act of the accused inflicting injuries on PW1 would attract offence under Section 307 of IPC. The learned counsel for the appellant vehemently argued that the evidence on record did not disclose offence under Section 307 of the IPC, at best, the accused could be convicted under Section 324 of IPC. CRL.A NO. 1034 OF 2006 -20- 23. A person can be said to commit an offence u/s 307 of IPC when he has intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. The court has to see the intention behind the act to come to the conclusion whether an offence u/s 307 is attracted or not. To attract S.307, the act committed by the accused must be an act capable of causing death in the natural and ordinary course of things. PW6 and PW7, the doctors who treated PW1 at the Government Hospital, Kozhikode deposed that the injuries sustained by PW1 are grievous in nature. The details of the injuries has been stated in Ext.P4 wound certificate, Ext.P5 discharge certificate and in Ext.P13 case sheet which have already been reproduced in preceding paragraphs. I have already found that the prosecution has succeeded in proving that the injuries were sustained by PW1 through the evidence of ocular witnesses. The evidence of ocular witnesses corroborate CRL.A NO. 1034 OF 2006 -21- with the medical evidence. The doctors also deposed that the injuries could be caused by MO1. The Supreme Court of India in _**R. Prakash V. State of Karnataka**_ [(2004) 9 SCC 27] has held that it is sufficient to justify a conviction under Section 307 of IPC if there is present an intent coupled with some overt act in execution thereof. In _**Jage Ram v. State of Haryana**_ [(2015) 11 SCC 366], the Apex Court held that to establish the commission of offence u/s 307, it is not essential that fatal injuries capable of causing death should have been inflicted. Recently the Apex Court in _**State of Madhya Pradesh v. Kanha @ Omprakash**_ [2019 (1) KLT Online 3013 (SC)] has held that proof of grievous or life threatening hurt is not _sine qua non_ for the offence u/s 307 of IPC. It was further held that the intention of the accused can be ascertained from the actual injury, surrounding circumstances, the nature of the weapon used and the severity of the blows. 24. Coming to the facts of the case, the evidence clearly shows that the accused attacked PW1 with a deadly weapon and CRL.A NO. 1034 OF 2006 -22- he sustained injury on the vital part of the body, i.e., neck. Both doctors, PW6 and PW7, deposed that the injuries are serious in nature. PW6 further deposed that the injury No.1 in Ext.P4 is a serious one and the patient may die by the said injury. It is proved through the evidence of PW6 and PW7 that the injury sustained by PW1 on his neck was capable of causing his death. It is, therefore, to be found that the accused is guilty of offence punishable u/s 307 as he would have been guilty of the offence punishable u/s 300 of IPC if the death had actually ensued. 25. The next question is regarding the sentence. The court below sentenced the accused to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for 1 year. The learned counsel lastly submitted that the substantive sentence may be reduced. Considering the fact that the appellant is a first time offender and that he has been experiencing the ordeal of trial since 2003, I am of the view that substantive sentence can be CRL.A NO. 1034 OF 2006 -23- reduced to 4 years. In the result, the appeal is allowed in part. The conviction and sentence passed by the court below stands confirmed. The substantive sentence of imprisonment passed by the court below is reduced to 4 years with no change in the fine and default sentence. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** JS