Full Judgment
Crl.A.No:675 of 2015 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12TH DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943 CRL.A NO. 675 OF 2015 AGAINST THE ORDER/JUDGMENT IN CP 13/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA, PATHANAMTHITTA SC 292/2013 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, PATHANAMTHITTA/IV ADDL. M.A.C.T., PATHANAMTHITTA APPELLANT/ACCUSED NO.1: ROY, AGED 31 YEARS, S/O.RAJAN.P.MATHEW, VELLAVOOR HOUSE, MYLAPRA, PATHANAMTHITTA. BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU RESPONDENT/COMPLAINANT: THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R BY SRI. ARAVIND MATHEW, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON 12.11.2021 DELIVERED THE FOLLOWING: Crl.A.No:675 of 2015 2
O R D E R
The Appellant herein is the 1st accused in SC.No 292/2013 on the file of Additional Sessions Court-IV, Pathanamthitta. The aforesaid case arises from Crime no 1133/2011 of Pathanamthitta Police station which was registered against the appellant herein and another, for the offences punishable under sections 283, 333 read with Section 34 of the Indian Penal Code.
2. The prosecution case is that the
appellant along with the 2nd accused, caused grievous hurt of the defacto complainant, who was a Civil Police Officer on duty, while he asked the accused to move the vehicle parked on Crl.A.No:675 of 2015 3 the road causing traffic block.
3. In support of the prosecution case, PWs 1 to 6 were examined and Exhibits P1 to P15 were marked. After closure of prosecution evidence,
the accused persons were questioned under Section 313 of Cr.P.C, during which they denied the allegations against them and pleaded that they are innocent. In support of the defence DW1 and DW2 were examined. Before completing the proceedings before the Sessions Court, the 2nd accused passed away and accordingly the charges levelled against him got abated. After considering the materials available on record, the Sessions Court found the Appellant guilty of the offences mentioned above and sentenced him to undergo rigorous imprisonment for 5 years and to pay a fine of ₹50,000/-(Rupees fifty thousand50,000/-(Rupees fifty thousand only) with the default sentence to undergo Crl.A.No:675 of 2015 4 simple imprisonment for 2 years for the offence under Section 333 of Indian Penal Code and
sentenced to pay a fine of ₹50,000/-(Rupees fifty thousand200/- with the default sentence of imprisonment for 10 days for the offence under Section 283 of Indian Penal Code. It was further observed that, in case the fine amount is recovered, it shall be given to PW2 as compensation under Section 357 (1) (a) of Cr.P.C. This appeal is filed by the Appellant being aggrieved by the aforesaid conviction and sentence.
4. Heard Sri. S. Shanavas Khan, learned counsel for the Appellant and Sri.Aravind Mathew, Learned public prosecutor.
5. Learned counsel for the appellant contends that the prosecution miserably failed in establishing the guilt of the appellant. The prosecution could not produce any materials to Crl.A.No:675 of 2015 5 establish that, PW1 was discharging his duties at the time of commission of the alleged offence. In order to attract the offence under Section 333 of I.P.C, the prosecution has to prove with positive evidence that, at the relevant time, the victim was discharging his official duties and the offence was committed with an intention to prevent or deter him from carrying out his duties. In this case no satisfactory evidence was adduced by the prosecution to establish the same and hence, the
basic ingredient for attracting the offence under Section 333 of I.P.C is lacking. It was also contented that the incident has occurred at night 1 AM and there is no evidence as to the existance of proper light to identify the accused persons. Apart from the Police officers, no other independent witnesses were examined to Crl.A.No:675 of 2015 6 prove the offences and hence it is not safe to base a conviction on such highly interested testimonies. The decision rendered by a division Bench of Himachal Pradesh High Court in State of Himachal Pradesh v.Gulzar alias Gulzari Jaimal and other (2015 Crl.L.J 861) was relied on. Accordingly, the learned counsel for the Appellant seeks for dismissal of the appeal.
6. The proceedings were initiated on the
basis of the first information statement given by PW2 wherein it was stated as follows: On from morning 9 AM onwards along with PW3. At about 1 AM on 23/12/2011, they noticed a traffic blockade at Kumbazha public road. On verification, it was noticed that it was on account of parking of a Car bearing registration number KL-04-Q-1130.Immediately PW2 along with Crl.A.No:675 of 2015 7 PW3 requested the driver of the car to move the vehicle from the spot. However, instead of complying with the same, the person who was on the driving seat of the vehicle(1st accused), questioned his authority and pushed him. The appellant/1st accused caught hold of the right hand of PW2 and twisted it, which caused pain to him. The 2nd accused caught hold of the left-hand of PW2. PW3 attempted to intervene and in the meanwhile ASI Surendran who was patrolling on a
motorcycle came there and apprehended the accused persons. Immediately, ASI called for more Police force and they reached the spot
without much delay. Thereupon, both the accused persons were taken to Police station. PW2 was taken to General Hospital for medical treatment. On examination, it was found that the right hand thumb of PW2 got fractured and he also suffered
Crl.A.No:675 of 2015 8 dislocation of right shoulder. The crime was registered on the basis of the same and
investigation commenced.
7. While PW2 was examined before the Court,
he reiterated the contents of Exhibit P2 FIR, without any substantial difference. PW3, who is another civil Police officer accompanied PW2 also gave evidence in tune with that of PW2. PW4 is another civil Police officer who also witnessed the incident has also deposed in tune with the evidence of PWs 2 and 3.
8. The main contention put forward by the learned counsel for the appellant is that, the prosecution did not produce any materials to show that PW2 was on duty at the relevant time. Section 333 reads as follows: “Whoever voluntarily courses grievous hurt to any person being a public servant in the discharge of his duty as such public servant, Crl.A.No:675 of 2015 9
or with intent to prevent or detet that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine” From the reading of the above provision, it
is evident that in order to attract the aforesaid offence, one of the basic ingredient
is that the public servant against whom the assault was made, should be a public servant discharging his duties at the relevant time. So the crucial question that arises here is as to whether at the relevant time PW2 was carrying out his official duties. Learned counsel for the Appellant would point out that, even according to PW2, he commenced his official duty at 9 AM on 22/12/2011 and the alleged incident occurred
Crl.A.No:675 of 2015 10 by about 1.00 am on 23/12/2011. Under normal circumstances, PW2 would not be in duty for such a long period. In such circumstances unless some documentary evidence is produced, it cannot be concluded that PW2 was at the relevant time, acting in discharge of his duties.
9. I find some force in the aforesaid contention. In order to attract the offence under Section 333 of IPC, the basic ingredients are (1) the victim should be a public servant,
(2) he must have been inflicted with grevious
hurt, (3) at the time of commission of the offence, such public servant must have been discharging his duties, and (4) the aforesaid commission of crime was committed with an intention to prevent or deter such public servant from discharging his duties. When the materials available on record in this case are Crl.A.No:675 of 2015 11 considered, it can be seen that, apart from the oral evidence there is absolutely no evidence to establish the same. During the cross-
examination, PW2 had stated that there are documents available to show that he was on duty at the relevant time. However the prosecution did not produce any such documents. Similarly, even though it was specifically stated by PW2 that he was in his uniform at the relevant time and in the assault some damage has caused to the said uniform, the aforesaid uniform has not been
produced by the prosecution and marked in evidence as a material object. As mentioned above, since it was the bounden duty of the prosecution to establish that PW2 was acting in
discharge of his duties as a public servant, in the absence of such documentary evidence it cannot be held that, that basic requirement to
Crl.A.No:675 of 2015 12 attract Section 333 of Indian Penal Code is fulfilled. In this case, during the cross
examination of PWs 2 to 5, the learned counsel
for the appellant put specific questions suggesting that, PW2 was not on duty. Even though, all the witnesses have stated that,
documents to prove the said fact were available in the police station, no such documents were produced. The aforesaid documents would have been the best evidence available to prove that PW2 was on duty at the relevant time. Such failure creates a shadow of doubt as to the veracity of the prosecution case and therefore it is very fatal. In such circumstances it is not safe to arrive at the conclusion that, the Appellant had committed the offence under Section 333 of Indian Penal Code. My view on this point is fortified by the principles laid Crl.A.No:675 of 2015 13 down by a Division Bench of High Court of Himachal Pradesh in Gulzar @ Gulzari Jaimal’s case (supra), wherein a similar view was taken in similar set of facts. In such circumstances I hold that the finding of the Sessions Court holding the Applellant guilty for the offence under Section 333 is not legally sustainable.
10. However, even while entering into a finding that the appellant is not guilty of the offence under Section 333 of Indian Penal Code, I am of the view that the materials available on
record is sufficient to arrive at the conclusion
that, PW2 has suffered grievous hurt on account of the assault committed by the Appellant. The learned counsel for the appellant would seriously oppose the same, by contending that as per the Exhibit P3 scene mahasar there is no
indication of any light at the place of Crl.A.No:675 of 2015 14 occurrence and the incident was admittedly occurred in the midnight. It was further
contended that, apart from the highly interested evidence of the police officers, there is no evidence of independent witnesses. However I am not inclined to accept this contention. Firstly PWs 2 to 4 have specifically deposed that streetlight was available in the said area. I do not find any reason to disbelieve the said witnesses on this aspect. Their evidence on this point is very consistent and the existence of streetlight is specifically mentioned in the 1st information report as well. In such circumstances, the contention put forward by the learned counsel for the Appellant is not sustainable. The nature of injuries are clearly proved from Exhibit P1 wound Certificate issued by PW1. The evidence of PW 1 would indicate the Crl.A.No:675 of 2015 15 following injuries:
(1) Fracture of 2nd Meta Carpel (R) Hand
(2) Contusion (R) Shoulder.
As PW2 sustained fracture of bone, it is a grievous hurt as defined under 320 of Indian Penal Code. The evidence of PWs 2 to 4 are to the effect that, it was the appellant who inflicted the said injuries and the said evidence is very consistent. It is true that, as
pointed out by the learned counsel for the appellant, there was no independent witnesses available. However, it is a well settled position that, merely because of the reason that, the witnesses are interested in the
outcome of the case, their evidence cannot be discarded. When the evidence is credible, trustworthy and there are materials corroborating their evidence, a conviction can Crl.A.No:675 of 2015 16 be based on the same. I have carefully scrutinized the evidence of PWs 2 to 3 who are occurrence witness and their evidence are mutually corroborative. Their evidence indicates that it was the appellant who inflicted injuries on PW2. Ext P1 wound certificate along with the evidence of PW1 would prove that PW2 has sustained grievous hurt. In such circumstances, the offence under Section 325, for causing grevious is attracted. Thus upon examining all the materials available on records, I find the appellant guilty of the offence of section 325, which is a lesser offence than one under Section 333.
11. Another offence for which the Appellant was found guilty is under Section 283 of Indian Penal Code. The aforesaid provision is for causing obstruction or injury to any person in Crl.A.No:675 of 2015 17 any public or public line of navigation. In this case as mentioned above, the evidence of PWs 2,
3 and 4 would clearly indicate that the Appellant caused obstruction in a public way by parking his vehicle on the road. In such circumstances, I do not find any material to interfere with the conviction and sentence imposed by the Sessions Court for the aforesaid offence and accordingly it is confirmed.
12. In such circumstances, after examining
all materials available on record, I find the appellant not guilty for the offence under Section 333 of Indian Penal Code. However, I find the Appellant guilty for committing the offence under Section 325 of Indian Penal Code.
13. When coming to the question of sentence,
the crucial aspect to be taken into consideration is the nature of injuries Crl.A.No:675 of 2015 18
sustained. Exhibit P1 would indicate that, PW2 sustained fracture of thumb of his right hand which is not an injury resulting in any
permanent disablement. it is also discernible from the facts and circumstances of the case that, the appellant and PW2 were not known to each other and there is no material to hold that there was any premeditation in commission of the crime. Apparently, the assault was made by the appellant under the heat of passion. In such circumstances, I am of the view that, a lenient view can be taken in the matter of sentence.
14. Accordingly, I sentence the appellant to undergo rigorous imprisonment for one year and a fine of ₹50,000/-(Rupees fifty thousand25,000/-(Rupees twenty five thousand only) with a default sentence of simple imprisonment for 2 months, for the offence under section 325 of IPC. The conviction and sentence
Crl.A.No:675 of 2015 19 under Section 283 of I.P.C, passed by the Sessions Court is hereby confirmed. All the other findings of the Sessions Court are
confirmed. The appeal is allowed in part with the above findings. Sd/- ZIYAD RAHMAN A.A. JUDGE DG