Nazar s/o Nazar Kunju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943 CRL.A NO. 967 OF 2006** **AGAINST THE JUDGMENT DATED 4.5.2006 IN SC 1486/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM, KOLLAM CP 4/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,** **SASTHAMCOTTA, KOLLAM** ## **APPELLANT/ACCUSED:** NAZAR S/O.NAZAR KUNJU, PULIVILAVADAKKETHIL, VENGA MURI, MYNAGAPALLY VILLAGE,KOLLAM. BY ADV SRI.JOHNSON GOMEZ ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT THROUGH THE C.I. OF POLICE, SASTHAMCOTTA. BY ADV. SANAL P RAJ, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.967/2006 -:2:- ## J U D G M E N T Dated this the 22nd day of October, 2021 This appeal has been filed by the accused in S.C.No.1486/2005 on the files of the Additional Sessions Court (Adhoc) II, Kollam against the judgment dated 4/5/2006, convicting him under Section 447, 324 and 307 of IPC. 2. The prosecution case in short is that, on 2/1/2002 at 9.30 pm, the accused criminally trespassed into the property of PW1 with an intention to kill him, stabbed on his chest with MO1 knife and when PW2, mother of PW1 intervened, the accused stabbed her as well on her right forearm and thereby committed offences punishable under Sections 447, 324 and 307 of IPC. 3. Immediately after the incident, PW1 and PW2 were taken to the Government Hospital at Kollam. Again they were referred to Medical College Hospital, Thriruvananthapuram where PW11, Head Constable, Sasthamcotta Police Station, recorded the First Information Statement of PW1 which was marked as Ext.P1. On the basis of Ext.P1, PW13, the Sub Inspector of Crl.Appeal No.967/2006 -:3:- Police, Sasthamcotta registered crime against the accused. He arrested the accused on 4/1/2002. Ext.P9 is the FIR. PW14, the Circle Inspector of Police, Sasthamcotta took up the investigation on 4/1/2002. PW15, the CI, Sasthamcotta Police Station, took up the investigation from PW14. He completed the investigation and filed final report before the Magistrate. The learned Magistrate after completing the statutory formalities committed the case to stand trial at the Court of Sessions. 4. The accused appeared at the court below. After hearing both sides, charge was framed under Sections 447, 324 and 307 of the IPC. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PW1 to PW15 and marked Exts.P1 to P16. MO1 to MO3 were identified. After the completion of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought against him in the evidence. He set up a defence case that on the date of occurrence, while he was walking through the road, PW1 and his father tried to assault Crl.Appeal No.967/2006 -:4:- him. Then he pushed PW1. PW1 self inflicted injuries with a knife at his hand. In the meantime, the father of PW1 caused cut with a chopper on his shoulder. He went to the police station to complain about the said incident. There he was taken into custody alleging that he stabbed PW1 and PW2. No defence evidence was adduced. Considering the evidence on record, the court below found the accused guilty under Sections 447, 324 and 307 of IPC and convicted him for the said offences. He was sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for two months for the offence under Section 307 of IPC, to undergo rigorous imprisonment for a period of 1 year under Section 324 of IPC and to undergo simple imprisonment for a period of two months under Section 447 of IPC. The sentences were ordered to be run concurrently. Aggrieved by the said conviction and sentence, the accused preferred this appeal. 6. I have heard Sri.Sanjay Johnson, the learned counsel for the appellant and Sri. Sanal P Raj, learned Public Prosecutor. Crl.Appeal No.967/2006 -:5:- 7. 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 PW1, PW2 and PW4 whose evidence were heavily relied on by the court below are interested witnesses and no independent witness was examined, though available. The learned counsel further submitted that the recovery of knife was made after two days of the incident and hence, no reliance can be placed on the said recovery. The counsel further submitted that there is a delay of two days in preparing Ext.P2 scene mahazar. As to the scientific evidence, the counsel submitted that the FSL report would show that the blood sample found on MO1 knife was inconclusive. The counsel added that at any rate, the accused should have been extended the benefit of doubt. The learned prosecutor, on the other hand, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 447, 324 and 307 of IPC had been established and the prosecution had succeeded in proving the case beyond reasonable doubt. Crl.Appeal No.967/2006 -:6:- 8. The prosecution mainly relies on the oral testimony of PW1 to PW4, PW10, PW12 and PW13 and Exts.P3 and P6 to P9 to prove the incident and to fix the culpability on the accused. PW1 and PW2 are the injured. PW2 is the mother of PW1. PW3 and PW4 are the occurrence witnesses. PW10 is the doctor who examined PW1 and PW2 after the incident and issued Exts.P6 and P7 wound certificates. PW12 is the doctor who treated PW1 at the Medical College Hospital, Thiruvananthapuram and issued Ext.P8 discharge certificate. Ext.P9 is the FIR. 9. Admittedly, the injured (PW1 and PW2) and the accused are neighbours and known to each other. PW1 gave evidence that on 2.1.2002 at 9.30 pm, while he was sitting in his house, the accused came there. He asked the accused, why he came there? Thereupon the accused shouted at him and took MO1 knife kept at his waist and stabbed on his left chest. Immediately, PW2 who was in the house intervened and asked the accused why he stabbed PW1. Thereupon, the accused stabbed on the right forearm of PW2 as well. He submitted that there was bleeding from the wounds of himself and his mother Crl.Appeal No.967/2006 -:7:- and when they cried, the local people gathered there. Seeing them the accused ran away carrying the knife. He further deposed that thereafter he was taken to the hospital for treatment. Ext.P1 FI Statement given by him at the Medical College Hospital was marked through him. He also identified MO1 knife allegedly used to stab him. PW2 gave evidence in tune with the evidence given by PW1. She stated that on the date and time of incident, the accused came to her house and after exchange of words with PW1, he took MO1 knife kept at his waist and stabbed PW1. She further deposed that when she intervened, the accused stabbed on her right forearm as well. She also deposed that thereafter, she and PW1 were taken to the hospital. She identified MO1 at the court. PW3 is the brother of PW1 who was residing adjacent to the house of PW1. Though he stated in chief examination that he witnessed the incident, he admitted in cross examination that he reached the spot at the end of occurrence and he saw the accused running away. It was he who took both PW1 and PW2 to Sasthamcotta Government Hospital. PW4 is the wife of PW1's brother. She is also an Crl.Appeal No.967/2006 -:8:- inmate to the house of PW1. She is an eye witness. She clearly corroborated the testimony of PW1 and PW2. She deposed that on the date and time of the incident, the accused came to her house and after some exchange of words with PW1, took MO1 knife kept at his waist and stabbed the the left chest of PW1. She further deposed that when PW2 intervened, the accused stabbed her as well. She also identified MO1. 10. PW1, PW2 and PW4 were cross examined at 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 and PW2 clearly deposed that the accused attacked them and stabbed them with MO1 knife. PW4 in clear terms deposed that she saw the accused stabbing on the left chest of PW1 and on the right forearm of PW2. It is trite that the evidence of the injured witnesses have to be given much weightage. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is Crl.Appeal No.967/2006 -:9:- generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant in order to falsely implicate someone. The said legal proposition has been upheld by the Honourable Supreme Court of India in catena of decisions. In _**State 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. The Apex Court in **A** _**dbul**_ _**Sayeed v. Sate of Madhya Pradesh**_ [(2010) 10 SCC 259)], discussing extensively various case laws on the point held that “the law on the point can be summarized to the effect that the testimony of injured witness is accorded a special status in law. This is a consequence of the fact that the injury to the witness is a built-in-guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate the third party for commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and Crl.Appeal No.967/2006 -:10:- discrepancies.” PW1 and PW2 gave evidence in tune with the prosecution. They clearly deposed about the incident. No vital contradictions or material omissions were brought out in their evidence. PW1, PW2 and PW4 clearly deposed about the manner in which the accused attacked PW1 and PW2 and the nature of the weapon used by him and the part of the body of the injured were upon the injuries were inflicted by the accused. They had identified MO1 as well as the accused at the court. Therefore, I hold that the evidence of PW1, PW2 and PW4 can be safely relied upon to prove the incident and fix the culpability of the accused. 11. The evidence of PW15 coupled with Ext.P3 would prove that the accused was arrested on 4/1/2012 and MO1 weapon was seized from his possession. PW10 is the doctor who examined PW1 and PW2 after the incident and issued Exts.P6 and P7 wound certificates. The injury sustained by PW1 and PW2 are stated in the wound certificates. PW10 opined that the injuries noted in Exts.P6 and P7 are possible with MO1. Ext.P15 is the chemical analysis report. It would show the MO1 contained human blood. Thus, the medical as well as scientific Crl.Appeal No.967/2006 -:11:- evidence also support the oral evidence adduced by the prosecution. 12. The learned counsel for the appellant vehemently argued that there are several circumstances to prove the innocence of the accused. First of all, the learned counsel for the appellant argued that the prosecution failed to examine the independent witnesses and instead the prosecution chosen to examine only the injured witnesses and a close relative of PW1 and PW2. The question is not whether the prosecution has examined number of witnesses. The question is whether the prosecution had succeeded to prove the case through the examined witnesses. I have already found that the prosecution has succeeded in proving the incident through the evidence of PW1, PW2 and PW4. In _**Ambika Prasad and Another v. State(Delhi Administration)**_ [(2000) 2 SCC 646], the Supreme Court has held that non examination of independent witnesses cannot be a ground for rejecting the evidence of an occurrence witness. The learned counsel, next, submitted that there is two days' delay in preparing the scene mahazar and there is also two Crl.Appeal No.967/2006 -:12:- days' delay in recovering the knife from the accused. Nothing has been pointed out by the learned counsel that any prejudice has been caused to the accused for the alleged delay. The accused was arrested only after two days. Immediately after his arrest, the knife was recovered from his possession. The learned counsel lastly submitted that Ext.P15 chemical analysis report would show that though human blood was detected in MO1, the grouping could not be done. At any rate, it was found that the knife contained human blood. The oral evidence of the parties would clearly show that the accused assaulted PW1 and PW2 with MO1 knife. MO1 was clearly identified by the occurrence witnesses. Hence, the fact that the grouping of the blood could not be done is insignificant. None of the circumstances pointed out by the learned counsel would in any way helped the accused. On a careful examination and appreciation of the entire evidence, I have no hesitation to come to a conclusion that the prosecution evidence successfully established that the accused trespassed into the courtyard of PW1 and PW2 and inflicted stab injuries on their body. Crl.Appeal No.967/2006 -:13:- 13. The prosecution has succeeded in proving that the accused inflicted injuries on PW1 and PW2 after trespassing into their courtyard. Therefore the offence under Section 447 of IPC clearly stands established. It is abundantly clear from the findings already recorded that the injuries found on the body of PW1 and PW2 and noted in Exts.P6 and P7 were inflicted by the accused with MO1. The doctor also deposed that such injuries could be caused by stabbing with MO1. No doubt that MO1 is a dangerous weapon described under Section 324 of the IPC. Therefore, the prosecution has succeeded in proving beyond reasonable doubt that the accused has voluntarily caused simple hurt to PW1 and PW2 and, thus, committed the offence punishable under Section 324 of IPC. 14. Next, crucial question arises for consideration is whether the act of accused inflicting injuries on PW1 and PW2 would attract offence under Section 307 of IPC. The learned counsel for the appellant vehemently argued that the evidence on record would not disclose offence under Section 307 of IPC. I find some force in the said argument. Crl.Appeal No.967/2006 -:14:- 15. A person can be said to commit an offence under Section 307 of IPC when he has intention to commit murder and in execution of that intention does an act towards its commission, irrespective of the fact whether that is penultimate act or not. The court has to see the intention behind the act to come to the conclusion whether an offence under Section 307 of IPC is attracted or not. It is settled that to bring a case under Section 307 of IPC the prosecution has to make out the facts and circumstances envisaged by Section 300 of IPC. If the ingredients of Section 300 of IPC are wholly lacking, there can be no conviction under Section 307 of IPC. The act committed by the accused must be an act capable of causing death in the natural and ordinary course of nature; and if the act complained of is not that description, the accused cannot be convicted under Section 307 of IPC. 16. Coming to the evidence on record, the injury sustained by PW2 is minor in nature and not on the vital prat of the body. It is true that the injury sustained by PW1 is on chest, the vital part of the body. But there is only one single injury. Crl.Appeal No.967/2006 -:15:- The description of injury is penetrating injury 1x1x.2cm. There are no other injuries. PW10 doctor did not deposed anything about the seriousness of the said injury. The doctor did not say that the said injury is sufficient in the ordinary course of nature to cause death, if left untreated. There are no supporting evidence to show that the accused had any intention to cause death of PW1. Considering all these aspects, I am of the view that there is no reliable evidence to come to a definite conclusion that there was an intention or knowledge on the part of the accused to kill PW1. There is also no satisfactory evidence to come to a conclusion that the act committed by the accused is an act capable of causing death in the natural and ordinary course of things. Therefore, I am of the view that the prosecution has failed to make out a case under Section 307 of IPC. In the result, the conviction passed by the court below under Section 307 of IPC is liable to be set aside. The sentence imposed by the court below for the offence under Sections 447 & 324 of IPC appears to be reasonable. For the reasons stated above, the conviction and sentence Crl.Appeal No.967/2006 -:16:- passed by the court below under Section 307 of IPC vide impugned judgment are set aside. The accused is found not guilty for the offence under Section 307 of IPC and he is acquitted for the said offence. The conviction and sentence passed by the court below under Sections 447 of IPC and 324 of IPC are confirmed. The appeal is allowed in part as indicated above. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **kp True copy** P.A. To Judge