Nazar s/o Hamza and Subair @ Kunjala Subair v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 29TH DAY OF MAY 2020 / 8TH JYAISHTA, 1942** **Crl.Rev.Pet.No.461 OF 2007** **AGAINST THE ORDER/JUDGMENT IN CRA 176/2006 DATED 29-07-2006 OF IV SESSIONS COURT,ERNAKULAM** **AGAINST THE ORDER/JUDGMENT IN CC 1266/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI** ## **REVISION PETITIONERS/APPELLANTS:** **1 NAZAR S/O HAMSA AGED 42 YEARS PULINCHOTTIL HOUSE,, C.C.III/140, NELLUKADAVU DESOM, FORT KOCHI** **2 SUBAIR @ KUNJALA SUBAIR S/O.HAMSA, AGED 46 YEARS, C.C.III/140,, NELLUKADAVU DESOM, FORT KOCHI,, NOW RESIDING AT MINI COMMUNITY HALL,, MATTANCHERRY VILLAGE.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.T.K.SHAJAHAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **SR.PP - SRI. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.05.2020, THE COURT ON 29.05.2020 PASSED THE FOLLOWING:** Crl.R.P.No.461 of 2007 2 ## **M.R.ANITHA, J.** ## **--------------------------------Crl.R.P.No.461 of 2007 --------------------------------Dated this the 29[th] day of May, 2020** ## **O R D E R** 1. This Criminal Revision Petition has been filed against the judgment in Crl.A.No.176/2006 dated 29.07.2006 of the IV Additional Sessions Court, Ernakulam which was filed against the judgment in C.C.No.1266/2003 of the Judicial First Class Magistrate Court-I, Kochi. 2. The revision petitioners are the accused persons in C.C.No.1266/2003. Case against the revision petitioners/accused was charge sheeted by the A.S.I. of Police, Fort Kochi in crime No.66/2003 of Fort Kochi Police Station under Section 324 r/w. 34 IPC. 3. Prosecution case is that, out of previous enmity of the revision petitioners/accused persons towards PW1, they in furtherance of their common intention on 19.05.2003 at about 8.30 a.m at Customs Jetty on the road in Fort Kochi Village, first revision petitioner/accused No.1 with a dagger held by him stabbed at the left side axille and inflicted injury and stab with dagger again was when warded it of by PW1 he sustained injury on his left middle Crl.R.P.No.461 of 2007 3 finger and second accused with a blade held by him inflicted injury on the left side of abdomen and thereby accused committed the offence aforementioned. 4. PWs 1 to 8 examined and Exts.P1 to P6 marked from the side of the prosecution. MOs 1 and 2 were also marked. There was no defence evidence. Thereafter, on hearing both sides, the trial court found the revision petitioners guilty under Section 324 r/w. 34 IPC. Against which, Crl.A.No.176/2006 was preferred and by the impugned judgment the learned IV Additional Sessions Judge, Ernakulam dismissed the appeal confirming the conviction and sentence passed against the revision petitioners. Aggrieved by the same, revision petitioners came up before this court, in revision. 5. Lower court records were called for. 6. Heard Sri. Vinod S. Pillai on behalf of Sri. Dinesh Mathew J. Murickan, learned counsel appearing for the revision petitioners and Sri. M.S. Breez, learned Public Prosecutor appearing for the respondent/State. (Revision petitioners would here after be referred as accused persons). 7. To prove the incident prosecution mainly relies upon the evidence of PW1, the injured and PWs 2 and 3; two Crl.R.P.No.461 of 2007 4 eyewitnesses, though PW3 was declared as hostile to the prosecution. Coupled with the same, PW7, the Assistant Surgeon attached to the Government Hospital, Fort Kochi was also examined to prove the injuries sustained by the victim. 8. PW1 would depose that the incident occurred on 19.05.2003 at 8.30. a.m on the road leading from the Customs Jetty to Island at Fort Kochi. Further he would depose that the first accused came from his behind and stabbed him on his left axille and when he again stabbed, it was warded of by him thereby he sustained injury on his middle finger. Further, he would depose that the second accused inflicted injury with a blade on his left side back and also on the chest and he sustained injury. He would further depose that on the previous day of the incident, there was an altercation between the first accused and his nephew and he sent away his nephew from there and at that time there was a push and pull in between first accused and himself. During cross examination also he stated that the first accused came from behind and on hearing the noise he turned back, and just behind the first accused, second accused also rushed to the spot and the Crl.R.P.No.461 of 2007 5 first accused was holding the knife on his right hand. It is also brought out that there was previous acquaintance between him and the accused persons. Further it was brought out that he was hospitalised for one week. Further it was brought out that in the quarrel between the first accused and his nephew he intervened and out of that there was a push and pull between himself and first accused. But the further suggestion that in that push and pull he fell down and on touching an iron wire he sustained injury has been stoutly denied by him also. 9. PW2, the eye witness deposed in corroboration with PW1 regarding the overt act by the first and second accused. He is also in acquaintance with both the accused. During his cross examination it has been brought out that he is a Headload Worker at Customs Jetty and used to be present in that area and he also stated that first accused came from behind and stabbed PW1 and he had seen the knife in the hand of the first accused, though he stated that he had not seen the act of stabbing and he came to the spot on hearing the alarm. He also denied the suggestion that he had seen PW1 assaulting accused Nos.1 and 2. He further denied the suggestion that PW1 sustained injury out of the push and Crl.R.P.No.461 of 2007 6 pull with the first accused and subsequent fall of PW1. 10. PW3 is the other eyewitness. According to him, he is in acquaintance with accused Nos.1 and 2. But he would state that he had not seen the incident of accused persons stabbing PW1 with a knife. But he would depose that he had seen the first accused and another person running away from the spot. (On the day of his examination, second accused was not present before the court.) Since he was reluctant to support the prosecution case, the learned Assistant Public Prosecutor cross examined him after getting permission from the court. But it is to be noted that though he denied of witnessing, the overt act of first accused, he would admit that he had seen the first accused and another person running away from the scene. He would also admit that injury was seen on the left side of abdomen of PW1 and he understood that it was sustained due to score with a blade. But he was not prepared to admit that it was the second accused who caused that injury. But at the same time he would admit that he saw PW1 with bleeding injuries and further he deposed that when he asked PW1 about the injury sustained, he told him that first accused stabbed him and second accused inflicted Crl.R.P.No.461 of 2007 7 injury with blade. So PW3 though a hostile witness,the portion of his evidence which are in corroboration with the other evidence is admissible in evidence. **(Bhagwan Singh** ## **v. State of Haryana [(1976) 1 SCC 389)** . 11. PW7, doctor deposed that while she was working as Assistant Surgeon, at Government Hospital, Fort Kochi, at 8.55 p.m on 19.05.2003 she examined PW1 and noted the following injuries: - (1) Linear incised wound 10 cm long on left side of chest and ½ m.m deep below left axille. - (2) small incised wound 1 c.m long ½ c.m deep on left side of abdomen near hip joint. 12. The wound certificate is marked as Ext.P6 through her. PW7, the doctor, also deposed that the alleged cause was stab with knife by Nazar and Subair and injuries could be caused as alleged. During cross examination, though it was suggested that these injuries could be caused by fall on a sharp edged weapon, she stoutly denied of any such possibilities. 13. The other evidence adduced by the prosecution is through PW4, the witness in Ext.P2 scene mahazar. He would Crl.R.P.No.461 of 2007 8 depose that he signed the same at Fort Kochi Customs Jetty. PW6 is the witness in seizure mahazar of the weapons, prepared at the Fort Kochi Police Station. But the witness was not prepared to admit that fact and according to him he signed the same at the place of occurrence as requested by the police. Since he was not prepared to admit the prosecution case regarding the signing of Ext.P5 mahazar at the police station, he was declared hostile and cross examined by the learned Assistant Public Prosecutor and he would deny the suggestion that he signed in Ext.P5 while MO1 and MO2 ie. knife and blade were produced by the accused persons at the police station. PW8 was on G.D. Charge duty on 20.05.2003. He recorded the FIS on 20.05.2003 at 8.30 a.m at Government Hospital, Fort Kochi and signed in Ext.P1 FIS and he also prepared the body note of the victim. PW5 is the investigating officer, Assistant Sub Inspector of Police, attached to the Fort Kochi Police Station during the relevant time and registered the FIR as per the FIS produced before him by PW8 and thereafter he prepared the scene mahazar Ext.P2 and arrested both accused on 20.05.2003 and released them on bail and conducted the investigation and he would depose that the Crl.R.P.No.461 of 2007 9 weapons used for the commission of offence were produced before him by the accused persons and he seized them by describing in Ext.P5 seizure mahazar at the police station. MO1 knife and the MO2 blade were marked through him. Thereafter, he completed the investigation and filed the charge. 14. The first contention of the learned counsel for the revision petitioners is with regard to the delay caused for the examination of PW1 at the hospital by the Doctor. According to him, though the incident alleged to have occurred on 19.05.2003 at 8.30 a.m, he has been examined by the doctor only on 8.55 p.m on 19.05.2003. He would contend that there is no explanation from the prosecution as to why he has gone to the hospital so late as the incident alleged to have taken place at 8.30 a.m. But it is to be noted that during the examination of PW1, the victim, no question seems to have been put to him about the reason for the delay in going to the hospital. Probably, the injury sustained by him might not have been that much serious or may be due to the absence of anybody else in his house to take him to the hospital etc. might have caused the delay in examination by the doctor. So also it is to be noted that PWs Crl.R.P.No.461 of 2007 10 1 and 2 deposed in corroboration that the incident occurred at 8.30 a.m at the road leading from Customs Jetty. PW3 though did not support the prosecution case, he also speaks about seeing the victim PW1 with injuries. So the delay caused in examination of PW1 by the doctor by itself will not make the prosecution case as not acceptable. 15. The next contention of the learned counsel is with regard to the delay caused in lodging the FIS. As found earlier, he has been examined by the doctor only at 8.55 p.m on 19.05.2003 and on the immediate next day on 20.05.2003 at 8.30 a.m PW8 has reached the hospital as per intimation from the hospital and recorded the FIS, Ext.P1. So it cannot be said that there is any inordinate delay in lodging the FIS. 16. Yet another contention advanced by the learned counsel for the revision petitioners is that either PW1 or PW2 could not identify the weapons alleged to have been used by the accused persons which have been produced and marked through the Investigating officer as MO1 and MO2. It is true that PWs 1 and 2 could not identify MOs 1& 2 as the weapons used by the accused persons. PW2 stoutly denied that it is with the knife shown to him that stab was caused. He also would state that he can not say whether Crl.R.P.No.461 of 2007 11 with the blade shown to him that injury has been caused. PW1 also stated categorically that the knife used for stabbing him may have a length of 1½ feet. He also pleaded ignorance whether the blade shown to him was used for attacking him though he asserted that it was a blade. 17. In this context, the evidence of PW5, the investigating officer is quite relevant. His evidence is that accused persons have produced MOs 1 and 2 before him at the station and it is at the station he prepared the seizure mahazar, which is marked as Ext.P5 for seizing MO 1 and 2. So it would only indicate that accused persons might have brought different weapons before the police as the weapons of attack. That is the reason why PW1 categorically stated that it is not the knife that has been used for attacking him. So the fact that PWs 1 & 2 could not identify MOs 1 & 2 will not in any way caste any doubt with regard to the prosecution case especially because when MOs 1 and 2 are not recovered at the instance of the accused persons and those are only the weapons alleged to have been produced by them before the police. So there would have every attempt on their part to change the weapon to shake the prosecution case. So that fact will not in any way create any Crl.R.P.No.461 of 2007 12 doubt with regard to the credibility of the evidence of PW1 and 2. So also this is a case of direct evidence and the victim and PW2 deposed in corroboration with regard to the overt act of accused persons and there is supporting medical evidence also. 18. Yet another contention advanced by the learned counsel for the revision petitioners is that the injuries sustained by PW1 are minor in nature. It is true that the evidence of doctor would show that he has been examined by the doctor only at 8.55 p.m though the incident occurred at 8.30 a.m. So, if at all the wounds sustained by PW1 were so grievous, he would not have waited till 8.30 p.m for consulting the doctor. But the fact that the accused persons have used dangerous weapons i.e a dagger and a blade for attacking him is established beyond any reasonable doubt through the ocular evidence of PWs 1 and 2 supported by the medical evidence. 19. The motive alleged by the prosecution is also spoken to by PW1 i.e with regard to his intervention in the quarrel between his nephew and first accused. The defence of the accused was also that in that quarrel there was a push and pull in between the first accused and PW1, which resulted Crl.R.P.No.461 of 2007 13 - in his fall on an iron wire and that has resulted in injuries upon him. That possibility has been stoutly denied by the doctor. So also, as I stated earlier, PW3 though was not prepared to support the prosecution case in toto and attempted to deny witnessing of the incident, he would admit regarding the escape of accused from the scene of occurrence. He deposed that he saw the first accused and another person running from the spot and he also admitted that he had seen PW1 with injuries. He also admitted to have seen the injuries on the middle finger of PW1 and also on the left side of the abdomen. So the evidence of PWs 1 and 2 in corroboration with the admissible portion of the evidence of PW3 leaves no room for doubt with regard to the incident as alleged by the prosecution. 20. So on a close evaluation of facts, circumstances and evidence adduced, I do not find any illegality or impropriety in the concurrent findings of guilt of the accused persons under Section 324 r/w. 34 IPC by the trial court and the appellate court calling for any interference at the instance of this court. 21. The learned counsel for the accused would next contend that taking into account the minor nature of the injuries Crl.R.P.No.461 of 2007 14 sustained by PW1, some leniency should be shown with regard to the sentence awarded. The sentence passed by the courts below is to undergo simple imprisonment for six months each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for one month. Out of the fine amount, if realised, Rs.1,000/- is directed to be given to PW1 under Section 357(1) (b)Cr.P.C. 22. In view of the facts and circumstances and the manner in which the accused persons attacked PW1, I do not think that the sentence imposed by the courts below is excessive. However, the records will show that the incident took place in the year 2003 and the injuries sustained by PW1 is also appears to be minor. So I find it just and proper to reduce the sentence of imprisonment to three months each instead of six months each and to pay a fine of Rs.1,000/- (Rupees one thousand only) each, in default, to undergo imprisonment for 15 days each. Fine amount, if realised, shall be given to PW1 under Section 357 (1) (b) Cr.P.C. towards damages for the injuries sustained by him. 23. In the result revision petition allowed in part confirming the finding and modifying the sentence to that of simple imprisonment for three months each and to pay a fine of Crl.R.P.No.461 of 2007 15 Rs.1,000/- each, in default to undergo imprisonment for 15 days each. Fine amount, if realised, shall be given to PW1 under Section 357 (1) (b) Cr.P.C towards damages for the injuries sustained by him. Bail bond executed by the accused persons stand cancelled and they are directed to surrender before the JFCM – I, Kochi for undergoing the sentence passed against them, forthwith. Sd/- **M.R.ANITHA** Shg **JUDGE**