Nazeer Khan v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 10TH DAY OF NOVEMBER 2011/19TH KARTHIKA 1933 Crl.Rev.Pet.No. 1664 of 2004 (C) -------------------------------CRA.260/2003 of SESSIONS COURT,MANJERI CC.74/2000 of J.M.F.C.,MALAPPURAM ## REVISION PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------------------- NAZEER KHAN, S/O.HARIDAS, MATHIYAMCHIRA, THENNALA AMSOM, CHUDALAPPARA DESOM KOTTAKKAL. BY ADV. SMT.K.V.BHADRA KUMARI ## COMPLAINANT(S)/RESPONDENT/COMPLAINANT: -------------------------------------- STATE REPRESENTED BY THE SUB-INSPECTOR OF POLICE, KOTTAKKAL REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.P.PADMALAYAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-11-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T.RAVIKUMAR, J.** ---------------------------Crl.R.P.No.1664 of 2004 ---------------------------Dated 10[th] November, 2011 ## **ORDER** The concurrent findings of guilt and consequential conviction and sentence on the revision petitioner for commission of offences under sections 323 and 324 of the Indian Penal Code are challenged in this revision petition. After appreciating the evidence, the trial court found the revision petitioner/accused guilty and sentenced him to undergo simple imprisonment for one month for the offence under section 323 IPC and to undergo simple imprisonment for six months for the offence under section 324 IPC. The sentences are ordered to be run concurrently. In appeal, the appellate court allowed the appeal in part. The conviction under sections 323 and 324 of the Indian Penal Code and sentence awarded under section 323 IPC were confirmed. However, the sentence awarded under section 324 IPC was modified as simple imprisonment for two months and a fine of Rs.3000/- and in default of payment of fine to undergo simple imprisonment for two months. ## 2. The case of the prosecution is as follows:- The revision petitioner/accused and PW1 are employees in Edarikkode Spinning Mill. On 10.11.1999 at about 3.30 p.m. PW1 went to the canteen of the Spinning Mill of which the wife of the revision 2 Crl.R.P.No.1664/2004 petitioner is the licencee. He came there to ask money due from the revision petitioner. The revision petitioner disowned liability and asked PW1 to go out of the canteen. When he came out of the canteen, the revision petitioner followed him, beat him with a stick and bit on his finger besides beating him on his face and navel region. PW1 was taken to Prasanthi Hospital, Kottakkal. PW1 sustained the following injuries on his body:- - “(i) Lacerated wound with mark of teeth over left middle finger 4 x 2 cm size. - (ii) Contusion over right maxillary region of face having a size of 5 x 2 cms. - (iii) Abrasion over left side of face.” 3. On the side of the prosecution PWs 1 to 8 were examined and Exts.P1 to P4 and MO1 were marked. There is no oral or documentary evidence for the defence. PWs 2 and 5 were examined as the ocular witnesses. They are also employees of Edarikode Spinning Mill. Both of them gave evidence which would corroborate the evidence of PW1. PWs 3 and 4 are the attestors to Ext.P2 scene mahazar. They deposed to the effect that they had seen the seizure of stick from the scene of occurrence, as per Ext.P2 scene mahazar. PW6 registered the case. PW7 is the investigating officer who prepared the scene mahazar and seized MO1 stick. Crl.R.P.No.1664/2004 3 4. The contention of the revision petitioner is that the courts below ought to have discredited the evidence of PWs 2 and 5. So also, it is contended that both the mahazar witnesses were interested witnesses and no sanctity could be attached to the seizure. There is material omissions and contradictions in the versions of PWs 1 to 5. In fact, such contentions were raised in the appeal as well. The appellate court found that there are no material contradictions which would make the oral evidence of PWs 1 to 5 unbelievable and unworthy. PW8 is the doctor who issued Ext.P4 wound certificate. It would go to show that PW1 had actually sustained injuries and the evidence of PWs1, 2 and 5 coupled with evidence of PW8 and P4 wound certificate are sufficient to establish the guilt of the revision petitioner. After careful appreciation of the evidence, the trial court found that the prosecution had succeeded in establishing the case against the accused that he had attacked PW1 with MO1 stick and bitten him on his finger and thereby caused hurt. The trial court found that the accused had caused simple hurt on PW1 with deadly weapons and beaten him with hand. In the appeal, the revision petitioner contended that there is no reliable evidence to prove the alleged incident and there were material contradictions in the version of PWs 1, 2 and 5. It is further contended that the seizure of MO1 stick ought to have been discarded, as it was from an open space accessible Crl.R.P.No.1664/2004 4 to all. It is also contended that the sentences imposed by the trial court are highly excessive and disproportionate to the gravity of the offence. After considering such contentions and carefully going through the evidence on record, the appellate court while maintaining the conviction under sections 323 and 324 IPC and maintaining the award of sentence under section 323 IPC modified the sentence awarded under section 324 IPC. That was modified as one as simple imprisonment for two months and a fine of Rs.3000/- and in default to undergo simple imprisonment for two months. 5. I have heard the learned counsel for the revision petitioner and also the learned public prosecutor. 6. The revision petitioner, PWs 1 to 5 are all employees of Edarikode Spinning Mill. The alleged incident occurred on 10.11.1999 at about 3.30 p.m. Admittedly, MO1 was seized from Edarikode Spinning Mill premises as per Ext.P2 scene mahazar. Relying on the decision of the Hon'ble Apex Court in **Koraghasi** v. **State of Orissa ((1983) 2 SCC 251** ) it is contended that the courts below ought to have discarded the seizure of MO1 stick as it was recovered from an open space accessible to all. True that, it was recovered from the premises of Edarikode Spinning Mill. At the same time, it cannot be said that it is a Crl.R.P.No.1664/2004 5 place which is totally unaccessible. MO1 was seized on 12.11.1999. Going by the prosecution case, the revision petitioner had beaten PW1 with MO1. But, there is no corresponding injury, even going by Ext.P4. In the said circumstances, even if the recovery of MO1 is found as legal, in the absence of any corresponding injury, it cannot be said that the accused had inflicted an injury on PW1 using MO1. In short, the prosecution has not succeeded in proving that MO1 has been used for voluntarily causing any hurt on PW1. At the same time, Ext.P4 would reveal that there is lacerated wound with mark of teeth on the left middle finger having a size of 4 x 2 cms and contusion over right maxillary region of face having a size 5 x 2 cms size and an abrasion over left side of face. 7. As already noticed hereinbefore, in the absence of corelating injury, the recovery of an amount would fall into inconsequences and it will not be having any impact as regards the allegation of commission of offences under section 324 IPC. At the same time, Ext.P4 wound certificate would reveal that the accused has sustained certain bodily injuries. The first injury is relevant for this purpose. The accused has sustained lacerated wound with mark of teeth over left middle finger 4 x 2 cm size. The trial court found that tooth is also an 'instrument for cutting' within the meaning of section 324 IPC. Whether the weapon said Crl.R.P.No.1664/2004 6 to be a weapon and cause death depends upon the use of that weapon in a particular situation. The injury noted in Ext.P4 would definitely go to show that the lacerated wound was caused on account of use of teeth. As already noticed, the injury is on the left middle finger and it is only a lacerated wound. In the circumstances, I am of the view that holding that teeth was used as weapon to cause death to attract an offence under section 324 and convicting the accused for having committed an offence under section 324 cannot be sustained at all. According to me, the said finding of the trial court is contrary to the materials available on record and it is nothing but perverse. The petitioner is challenging the recovery as such. It is contended that it was recovered from a place wherein public have access. Evidently, the recovery was not made on the same day. Paragraph 14 of the judgment of the trial court contains the discussion of the evidence as regards the use of the weapon. A scanning of the said paragraph would reveal that the evidence was not at all analysed. It is held therein as hereunder:- “Considering the size and nature of MO1 it can be seen that it is a dangerous instrument which if used as a weapon of offence, is likely to cause death.” Crl.R.P.No.1664/2004 7 In the said context, section 324 IPC assumes relevance. It provides that whoever, except in the case provided by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting or any instrument which, used as a weapon of offence, is likely to cause death or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal can be convicted in terms of section 324 IPC. There is no discussion on the nature of the weapon used for commission of offence and also as regards the injuries sustained on account of the use of teeth. Ext.P4 would reveal that it is a lacerated wound with mark of teeth over left middle finger 4x2 cms. The trial court found that tooth is also an instrument for cutting within the meaning of Section 324 IPC. It is based on the said findings and analysis of evidence that the trial court came to the conclusion that the petitioner had committed offence under section 324 IPC and convicted him under section 324 IPC . A bare reading of paragraph 14 of the judgment of the trial court would reveal that the evidence was not properly analysed for the purpose of arriving at a conclusion as to whether the commission of alleged offence would attract section 324 IPC. I am of the considered view that the manner in which the evidence was appreciated by the court below is perverse which warrants Crl.R.P.No.1664/2004 8 interference. The judgment of the appellate court in Crl.Appeal No.260 of 2003 would also reveal that the said aspects were not at all considered in a proper manner. In this regard, it is relevant to look into the injuries sustained by the petitioner on his face. They are contusion over right maxillary region of face having a size of 5 x 2 cms and abrasion over left side of face. The nature of the said injuries sustained would undoubtedly show that they are minor. In the absence of a finding to the effect that the stick which is alleged to have used for commission of offence alleged in this case is of the nature likely to cause death the conviction and sentence under section 324 IPC cannot be sustained. So also, considering the fact that the wound on the left middle finger is only a lacerated wound with a mark of teeth, I am of the view that the conviction and sentence of the petitioner under section 324 IPC cannot be maintained. The failure to appropriately consider the said aspects with reference to the materials available on record can only be said to be perverse and therefore, I am of the view that the judgment of the court below inasmuch as finding the petitioner guilty of offence under section 324 IPC cannot be maintained. In the circumstances, the conviction and sentence of the petitioner under section 324 IPC is set aside. I find no reason for interfering with the finding of the court below as regards the conviction and sentence under section 323 IPC having regard to the nature of the injuries found on the body of PW1. In the Crl.R.P.No.1664/2004 9 said circumstances, the conviction and sentence under section 323 IPC are confirmed. Accordingly, this revision petition is allowed in part, as above. Transmit the records to the trial court for execution of the sentence, in accordance with law. Sd/C.T.RAVIKUMAR Judge TKS/spc