IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 Crl.Rev.Pet.No. 216 of 2001() ----------------------------- CRA.264/1997 of SESSIONS COURT, ALAPPUZHA SC.49/1997 of ADDL.ASSISTANT SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- NAZAR ALIAS CHINNU, SON OF HASSANKUTTY, VALIYAPARAMBIL HOUSE, WARD NO.II, PUNNAPRA PANCHAYAT, ALAPPUZHA. BY ADV. SRI.P.G.THAMPI, SENIOR ADVOCATE SRI.S.SANAL KUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT:- --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 216 of 2001 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 31st day of October, 2011 O R D E R Revision petitioner is the accused in S.C.No.49 of 1997 on the file of the Addl. Asst. Sessions Court, Alappuzha and appellant in Crl.A.No.264 of 1997 on the file of the Sessions Court, Alappuzha. He was convicted under sections 307, 333 and 225B of IPC and sentenced to undergo rigorous imprisonment for six years and to pay fine of `5,000/-, in default to undergo simple imprisonment for six months under section 307 IPC. He was also sentenced to undergo rigorous imprisonment for five years under section 333 IPC and to pay a fine of `1,000/-, in default to undergo simple imprisonment for one month under section 225B IPC by the trial court by judgment dated December 19, 1997. On appeal by the accused, the lower appellate court by judgment dated December 22, 2000 confirmed his conviction under sections 307, 333 and 225B IPC, but CRRP 216/2001 2 modified the sentence to undergo rigorous imprisonment for six years and to pay a fine of `5,000/-, in default to undergo simple imprisonment for six months under section 307 IPC. No separate sentence was awarded under sections 333 and 225B IPC invoking section 71 IPC. The accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court, in brief, is this:- The revision petitioner is an absconding accused in Crime No.100/1995 and 230/1993 of Punnapra Police Station. He was evading arrest. On August 6, 1995 PWs. 1 to 3, Constables attached to that police station, were deputed by the Sub Inspector of Police of that station to arrest the accused, as he was reportedly available in Kuruvilangad area. In the auto- rickshaw of PW7 when they reached near Makky Junction at about 10.50 a.m. they saw the accused in front of a pan shop. On seeing them the accused took to heels. PWs.1 to 3 chased him. The accused after crossing the Railway level CRRP 216/2001 3 cross entered the compound of one Ismail. When the accused reached near the kitchen door of the house, PW1 caught hold of his left hand and informed him that he was under arrest. The accused suddenly took a dagger from his waist and uttering that he will do away with PW1 stabbed PW1 on his chest causing a grievous injury to PW1 as described in Ext.P5 wound certificate. The accused then escaped from there and ran away. PWs.2 and 3 took PW1 to the Medical College Hospital, Alappuzha. On the way PW2 got down infront of Punnappra Police Station and informed the Sub Inspector of Police therein about the incident. At about 1.15 p.m. PW17 the then Sub Inspector of Police therein proceeded to the hospital and recorded Ext.P1 F.I.Statement from PW1 and registered the case. 3. PW10, the then Medical Officer, Medical College Hospital, Alappuzha examined PW1 on August 6, 1995 at 11.15 a.m. and issued Ext.P5 wound certificate. PW11, the Asst. Professor of the Medical College Hospital conducted emergency operation on PW1. Ext.P6 is the case records of CRRP 216/2001 4 PW1. The initial investigation was conducted by PW17, the then Sub Inspector of Police, Punnapra Police Station. Further investigation in this case was conducted by PW18, the then Circle Inspector of Police of Ambalapuzha Police Station. PW19, the successor in office of PW18, arrested the accused on September 13, 1996 at about 2.30 a.m. from the Municipal Bus Stand, Changanachery. On the basis of disclosure statement made by the accused, MO1 knife was recovered from the Anganwadi building situated in Ward No.I of Punnapra Panchayat. He completed the investigation and laid the charge before the committal court, the Judicial Magistrate of the First Class, Ambalapuzha. 4. The accused on appearance before the committal court were furnished copies of documents relied on by the prosecution. As the offence punishable under section 307 IPC is exclusively triable by a Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Alappuzha from where it was made over to the trial CRRP 216/2001 5 court for trial and disposal. 5. The accused on appearance before the trial court pleaded not guilty to the charge under sections 307, 333 and 225B IPC. PWs.1 to 19 were examined and Exts.P1 to P16 and MOs.1 to 3 were marked on the side of the prosecution. When the accused was questioned under section 313 Cr.P.C. by the learned Sessions Judge, he has denied the entire incident. He would say that he was falsely implicated in this case. After hearing both sides, as the learned Sessions Judge found no valid reason to acquit the accused under section 232 Cr.P.C., he was called upon to enter on his defence. No evidence was adduced by the accused. 6. The trial court, on an appreciation of evidence, found the accused guilty of the offences punishable under sections 225B, 307 and 333 IPC and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction but modified the sentence as stated above. The accused has come up in revision CRRP 216/2001 6 challenging his conviction and sentence. 7. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 8. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner/accused under sections 225B, 307 and 333 IPC rendered by the trial court, which was confirmed by the lower appellate court can be sustained? 2) Whether the sentence imposed on the revision petitioner is excessive or unduly harsh ? 9. Point No.1:- The case of the prosecution is that PWs.1 to 3 who are Police Constables attached to Punnapra Police Station while apprehending the accused who was wanted in other criminal cases with an intention to kill PW1 stabbed PW1 with MO1 dagger causing him the grievous injury as described in Ext.P5 wound certificate and also escaped from the lawful custody of PW1 and that thereby committed offences punishable under sections 307, 333 and 225B IPC. The case of the accused was of total denial. Both the courts below have concurrently found the accused CRRP 216/2001 7 guilty. Therefore the question for consideration is whether the said findings can be sustained. 10. On going through the judgments of both the courts below and the evidence adduced on the side of the prosecution before the trial court and after hearing the arguments of counsel for the petitioner and the Public Prosecutor, I am of the view that the conviction of the revision petitioner rendered by the trial court under sections 307, 333 and 225B IPC, which was confirmed by the lower appellate court has to be affirmed. 11. PWs.1 to 19 were examined and Exts.P1 to P16 were produced by the prosecution before the trial court. The prosecution mainly relied on the evidence of PWs.1 to 3, PWs.5 and 6 and to some extent the evidence of PWs.4, 7 and 8. 12. PW1 Pradeep who is the injured and PW3 Venugopal are the Police Constables attached to the Punnapra Police Station. PW2 Jayaprakash is the Head Constable therein. PWs. 2 to 7 are independent eye CRRP 216/2001 8 witnesses. PW4 Salim is the son of Ismail in whose compound the incident happened. Though he stated that he witnessed the incident, he was not able to identify the assailant. Therefore, he was declared hostile by the prosecution. PW5 Shajahan is the friend of PW4. It was while he was talking to PW4 near the kitchen of the house of PW4 the incident happened. He supported the prosecution. PW6 Bushra is the wife of one Rasheed who is the elder brother of Salim. She has also witnessed the incident. PW7 Thankachan, driver of the auto-rickshaw bearing registration No.KRA 737. It was in his autorickshaw PWs.1 to 3 went in search of the accused on the date of the incident. PW8 Madhu is the driver of another auto-rickshaw in whose auto-rickshaw PW1 the injured was taken to the hospital. PW9 Shaji is a witness to the seizure mahazar Ext.P4 regarding the seizure of MOs.2 and 3, shirt and pant of PW1 from the hospital. PW10 Dr. S. Hari is the then provisional Lecturer in Surgeory, Medical College Hospital, Alappuzha who examined PW1 on 6/8/1995 at 11.15 A.M. CRRP 216/2001 9 and issued wound certificate Ext.P5. On examination he found the following injuries on PW1:- “Vertically placed incised wound over the left fourth inter costal space in the anterior auxillary line, penetrating to the chest/air escaping from the wound. Measurement of the wound 2 c.m. in length edges sharp”. He opined that the said injury could be caused by stabbing with a weapon like MO1 and the said injury was grievous. 13. PW11 Dr. R. Samadarsi is the then Assistant Professor of Surgery, Medical College Hospital, Alappuzha. He conducted emergency operation on PW1 on 6-8-1995 at about 11.20 a.m. He also opined that injury on PW1 could be caused by stabbing with a double edged weapon like MO1. He has made endorsement to that effect in the treatment record of PW1, Ext.P6. PW12 Vijayakumar is the Medical Record Librarian in Medical Medical College Hospital, Alappuzha who produced Ext.P6 treatment record of PW1. PW13 Nazeer is an attester of Ext.P7. PW14 Joseph is a CRRP 216/2001 10 witness to Ext.P8 the mahazar for seizure of MO1 knife. He did not support the prosecution. PW15 Jameela is the then Asst. Director in Serology Division in Forensic Science Laboratory, Thiruvananthapuram. She examined MOs. 2 and 3 and found that those contained human blood belonging to 'O' group. Ext.P9 is the certificate issued by her. PW16 K.V. Devadas is the then Village Officer of Punnapra Village Office who prepared Plan Ext.P10. PW17 P.S. Sabu is the then S.I. of Police of Punnapra Police Station. He recorded Ext.P1 F.I.Statement of PW1 from the hospital and registered the case on 7-8-1995 at 5.15 p.m. Ext.P11 is the F.I.R. PW18 A.Mohanan is the then Circle Inspector of Police, Ambalappuzha who conducted the initial investigation in this case. He questioned the witnesses and recorded their statements. He prepared scene mahazar Ext.P7. He searched the house of accused on 6-8-1995. Ext.P12 is the search memo and Ext.P13 is the search list. PW19 V. Muraleedharan is the successor in office of PW18 who conducted further investigation in this case. He CRRP 216/2001 11 arrested the accused on 13-9-1996 at 2.30 a.m. from Changanassery Municipal Bus Stand and on the basis of disclosure statement made by him recovered MO1 knife. He completed the investigation and laid the charge before the committal court. 14. I shall first consider whether both the courts below are justified in believing the evidence of PWs.1 to 8 regarding the incident. PWs.1 to 3 gave a consistent version regarding the incident. They have categorically stated that it was the accused who stabbed PW1 inflicting the injuries described in Ext.P5 copy of the wound certificate. Nothing was brought out during their cross-examination to discredit their evidence. Their evidence is supported by PW6 on all material particulars. 15. The evidence of PWs.1 to 3 were mainly criticized on the ground that PW1 did not mention the name of the accused to the doctor who treated him and that in Ext.P5 wound certificate the name of the assailant is not mentioned. The counsel for the revision petitioner submitted CRRP 216/2001 12 that the non-mentioning of the name of the accused in Ext.P5 wound certificate cast serious doubt regarding the truth of the version of PWs.1 to 3 about the incident as well as involvement of the accused in this case. I find no merit in the above contention of the accused. 16. PW1 was seriously injured. That being so, he cannot be expected to give all the details of the accused at that time. PWs.1 to 3 have categorically stated that they knew the accused even prior to the incident. That apart, in Renjith Singh & Ors. V. State of Madhya Pradesh (JT 2010 (12) SC 167) the Apex Court has held that failure to name the accused in the F.I.R., and the said accused is named at the earliest opportunity, when the statements of witnesses are recorded, it cannot tilt the balance in favour of the accused (See also Rotash V. State of Rajasthan ((2006) 12 SCC 64), Rattan Singh V. State of H.P. (AIR 1997 SC 768), Podda Narayana V. State of Andhra Pradesh (AIR 1975 SC 1252), Sone Lal V. State of U.P. (AIR 1978 SC 1142), Gurnam Kaur V. Bakshish Singh & Ors. (AIR 1981 SC 631) CRRP 216/2001 13 and Kirender Sarkar & Ors. V. State of Assam ((2009)12 SCC 342)). 17. While dealing with a similar issue in Animireddy Venkata Ramana & Ors. V. Public Prosecutor, High Court of Andhra Pradesh ((2008) 5 SCC 368), the Apex Court has observed thus:- “While considering the effect of some omissions in the first information report on the part of the informant, a court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the court is as to whether there was a possibility of false implication of the appellants. Only with a view to test the veracity of the correctness of the contents of the report, the court applies certain well-known principles of caution.” The principles laid down in the above decisions squarely apply to the facts of the present case. In the present case Ext.P1 F.I. Statement was recorded at about 1.15 p.m. on 6- 8-1995 wherein itself PW1 has stated the name of the CRRP 216/2001 14 accused. Therefore, in my view, in the light of the principles laid down in the above decisions non-mentioning of the name of the accused in Ext.P5, the wound certificate, has not in any way affected the case of the prosecution. Therefore, I find no reason to disbelieve the evidence of PWs.1 to 3. 18. The counsel for the revision petitioner argued that there is delay in sending the F.I.R. to committal court which probabilises the case of the accused that Ext.P1 was not recorded at the time shown therein and the chance of it being fabricated cannot be ruled out. There is no substance in the above contention. Ext.P11 FIR shows that the F.I.S. was recorded on 6-8-1995 at 1.15 p.m. and the F.I.R. reached the committal court on 7-8-1995 at 5.15 p.m. Thus, there is no delay in sending the F.I.R. to court. That apart, even if there is delay in F.I.R. reaching the court, it is not fatal to the case of the prosecution. The Apex Court has held in Dharamveer and others V. State of U.P. (AIR 2010 SC 1378 - ((2010)4 SCC 469) that when investigation started, CRRP 216/2001 15 statements of witnesses recorded, inquest report prepared and dead bodies sent for postmortem examination without delay, then the mere fact that the F.I.R. reached the committal court after one week from the date of occurrence is not sufficient to doubt the case of the prosecution. 19. In the present case F.I.S. was recorded at 1.15 p.m. on 6-8-1995. Immediately thereafter the police has started investigation which is evident from the evidence of PW6, who stated that on the date of incident itself police came to her home and recorded her statement. Ext.P4 scene mahazar was seen prepared at 12.30 p.m. on 6-8- 1995 itself. Therefore, in the light of the principles laid down in the Dharamveer's case (Supra) the alleged delay in sending the F.I.R. to committal court, in my view, is not sufficient to doubt the case of the prosecution. That being so, the above contention of the revision petitioner that there is delay in sending the F.I.R. to court which shows that it is a fabricated one, has only to be rejected. 20. PW4 Salim is the son of Thoppil Ismail in whose CRRP 216/2001 16 compound the incident occurred. He supported the case of the prosecution to some extent. He was not able to identify the accused. He would say that while he was talking to his friend Shajahan (PW5) near the kitchen of his house, a person came there running with another person chasing behind him, that when they were near the kitchen, the person who was chasing caught hold of the hand of the person in front and stated that he was arrested and that at that time the person who was running in front stabbed with knife that person who was chasing him. But, regarding the identification of the accused, PW4 stated that he cannot say whether it was the accused who stabbed the other person. Therefore, except regarding the identity of the accused, the evidence of PW4 proves the case of the prosecution. 21. PW5 Shajahan is the friend of PW4. It was while he was talking to PW4 near the kitchen of the house of PW4 the incident happened. He supported the version of PWs.1 to 3 on all material particulars. He identified the accused as the person who stabbed PW1. He has no prior acquaintance CRRP 216/2001 17 with the accused or enmity towards him to falsely implicate him. He also stated that the accused stabbed PW1 with weapon like MO1 dagger. But, when cross examined he would say that the person who stabbed PW1 would look like the accused. Therefore, both the courts below are justified in believing the evidence of PW5 except regarding the identification of the accused. 22. PW6 Bushra is the wife of the elder brother of PW4 Salim. She has also gave a consistent version regarding the incident. She identified the accused as the person who stabbed PW1. She has also no prior acquaintance with the accused or enmity towards him to falsely implicate him in this case. The defence counsel was not able to shake her evidence in cross-examination. 23. The learned counsel for the revision petitioner argued that the incident occurred on 6-8-1995 and that as PW6 had no prior acquaintance with the accused, her evidence cannot be relied on especially, when no test identification parade was conducted in this case. There is no CRRP 216/2001 18 substance in this contention. 24. The incident occurred in broad daylight. PW6 had the opportunity to see the accused on close quarters . It has been repeatedly held by the Apex Court in Mulla V. State of U.P. (2010 Crl.L.J. 1440 (SC) and Manu Sharma V. State (NCT of Delhi), (2010) 6 SCC 1) that result of test identification parade is not substantive evidence, that it can be used only for corroboration or contradiction of the evidence and that dock evidence is substantive piece of evidence and that even in the absence of test identification parade, identification in court can be believed. The Apex Court in Daya Singh V. State of Haryana (AIR 2001 SC 1188) and in Sheo Sankar Singh V. State of Jharkand and another (AIR 2011 SC 1403) observed that the purpose of test identification parade is to have corroboration of evidence of eye witness in the form of earlier identification, but if the evidence of identification in court is found reliable, absence of corroboration by test identification parade would not matter. CRRP 216/2001 19 25. In the present case the evidence of PW6 regarding the incident as well as identification of accused in court is found reliable by both the courts below. I have gone through her evidence. I find no reason to come to a different conclusion. Therefore, in the light of the principles laid down in the above decisions, I hold that though test identification parade has not been conducted, the identification of the accused by PW6 in court is reliable and the both the courts below are justified in relying on her evidence. 26. PW7 Thankachan is the driver of the auto- rickshaw bearing registration No.KRA 737 in which PWs.1 to 3 went in search of the accused on the date of the incident. PW8 Madhu is another auto-rickshaw driver in whose vehicle the injured was taken to the hospital. Both of them supported the prosecution. Their evidence strengthen the version of PWs.1 to 3 regarding the incident. Thus the evidence of PWs.1 to 3 coupled with that of PWs.6, 7 and 8 and to some extent supported by PWs.4 and 5 proves the CRRP 216/2001 20 case of the prosecution that the accused stabbed PW1 on his chest with MO1 knife causing him the grievous injury as described in Ext.P5 wound certificate as alleged by the prosecution. 27. The next question for consideration is whether the revision petitioner/accused had any intention to kill PW1. The counsel for the revision petitioner argued that the accused had no intention to cause death of PW1 and his intention was only to escape from the arrest. There is no force in the above contention. PW1 sustained a grievous injury on the vital part of the body. PWs.10 and 11 doctors have testified that the said injury could be caused by a weapon like MO1 dagger which is a dangerous weapon and the said injury is a grievous injury sufficient to cause death, but the emergency operation conducted PW11 has saved his life. The intention or knowledge to cause death can be inferred from the nature of the injury caused and from the nature of weapon used (see State of M.P. V. Kedar Yadav ((2009) 17 SCC 250). The intention on the part of the CRRP 216/2001 21 accused to cause death of PW1 is manifest from the weapon used and the way it was employed to cause the injury that even penetrated the lungs. PWs.10 and 11 the doctors have opined that the said injury was enough to cause death. That apart, the accused stabbed PW1 after shouting that “he will do away him if arrested”, which itself shows that his intention was to kill PW1. Therefore, both the courts below are right in finding that the accused stabbed PW1 with an intention to kill him. That being so, the accused had committed an offence punishable under section 307 IPC. His conviction thereunder is confirmed. 28. The next question for consideration is whether the accused has committed any offence punishable under section 333 IPC. It is not disputed that PW1 is a Police Constable attached to Punnapra Police Station. Therefore, he is a “public servant” as defined under section 21 of IPC. On the morning of August 6, 1995 he was deputed to arrest the accused. Ext.P2 is the relevant entry in the duty book of PW1, which proves the same. PW17 the Sub Inspector of CRRP 216/2001 22 Police, Punnapra Police Station proved Ext.P2. It was when PW1 attempted to arrest the accused by catching hold of his left hand, the accused stabbed PW1. The accused has caused a grievous injury to PW1 as described in Ext.P5 wound certificate while discharging his official duty. That being so, he has committed an offence punishable under section 333 IPC. The conviction of the accused thereunder is confirmed. 29. As regards the charge under section 225B IPC is concerned, the evidence of PWs. 1 to 6 shows that PW1 caught hold of the left hand of the accused and told him that he was under arrest and thereafter