IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 Crl.Rev.Pet.No. 546 of 2003 -------------------------------------------- CRA.97/1996 of ADDL. SESSIONS COURT (ADHOC-I), PATHANAMTHITTA CC.401/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... REVN. PETITIONER/APPELLANT/ACCUSED: RAJAN , S/O. GEORGE, KOORUMULLIL HOUSE, THULAPPALLY, PAMBAVALI, KOLLAMULA, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT: STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.1939/2003 IN CRRP 546/2003 DISMISSED 9.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.546 of 2003 -------------------------- ORDER Petitioner, the first accused in C.C.No. 401/1993 on the file of Judicial First Class Magistrate's Court, Ranni, along with accused 2 and 3, were convicted and sentenced for the offence under Section 332 read with Section 34 of Indian Penal Code. They challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.No.97/1996. Learned Additional Sessions Judge, on re-appreciation of evidence, found that names of accused 2 and 3 were not mentioned before the doctor or in Exhibit P1 F.I. Statement and evidence of PWs 1 to 4 that they identified accused 2 and 3 cannot be believed. Their conviction was, therefore, set aside and they were acquitted. But, learned Additional Sessions Judge relied on the evidence of PWs 1 to 3 and held that petitioner was one among the persons, who pelted stones on PWs 1 CRRP 546/03 2 to 4 and voluntarily caused hurt to PWs 1 to 4. Therefore, his conviction for the offence under Section 332 of Indian Penal Code as well as the sentence were confirmed. This revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that courts below did not properly appreciate the evidence and on the evidence, it should have been found that the case was foisted against the petitioner due to enmity. It was argued that, even according to PWs 1 to 4, there was enmity with the petitioner and in such circumstances, their evidence should not have been accepted. Learned counsel argued that the General Diary, which would show whether PWs 1 to 4 were on duty at that time, was not produced and there is no material to prove that PWs 1 to 4 were discharging their official duty at 3 a.m. when the incident occurred and in such circumstances, conviction of the petitioner CRRP 546/03 3 for the offence under Section 332 of Indian Penal Code is not sustainable. Reliance was placed on the decision of the Apex Court in D.Chattaiah v. State of A.P. (AIR 1978 SC 1441) (1978 KHC 690) and it was argued that when there is no evidence to prove that hurt was caused with the intention to deter PWs 1 to 4 in discharging their official duty, conviction of the petitioner for the offence under Section 332 of Indian Penal Code is not sustainable. Learned counsel finally submitted that as the incident was in 1993, at this distant point of time, petitioner may not be sent to prison as the punishment provided is imprisonment or fine and therefore, the sentence may be modified to fine. 4. Learned Public Prosecutor pointed out that to attract an offence under Section 332 of Indian Penal Code, the fact that PWs 1 to 4 were public servants and petitioner voluntarily caused hurt to them, while they were discharging their duty as public servants, will be sufficient and in such CRRP 546/03 4 circumstances, it is not necessary to prove that intention of the petitioner was to deter PWs 1 to 4 from discharging their official duty. It is also argued that evidence of PWs 1 to 4 establish that though they were returning from patrol duty, their duty ends only on reaching the station and in such circumstances, when there is evidence to prove that PWs 1 to 4 sustained hurt and petitioner was one among the persons, who voluntarily caused hurt and at that time, PWs 1 to 4 were discharging their official duty and therefore, conviction of the petitioner is perfectly legal. 5. Prosecution case is that on 4.4.1993, PWs 1 and 4, the Forest Guards and PWs 2 and 3, the Foresters, were on night patrol duty in Kannamala Forest. At about 3 a.m., they were returning to the station after the patrol duty inside the forest. When they reached Alappat Junction at 3 a.m., petitioner, along with two others, pelted stones at them and they thereby voluntarily caused hurt to PWs 1 to 4. CRRP 546/03 5 6. PW6, the Doctor, examined PWs 1 to 4 on 5.4.1993 at 3 a.m. and prepared Exhibits P4 to P7 wound certificates. Exhibit P4 is the wound certificate of PW1. It shows that when the Doctor examined him, there was a lacerated injury on the right side of his forehead, placed vertically downwards 5 cm. long and another lacerated wound on the left index finger on the dorsum aspect and a lacerated injury on the dorsum of medial three fingers of right hand. Evidence of PW1, corroborated by the evidence of PW6, establish that when a stone, thrown by the petitioner, hit on his forehead, he fell down and while falling he sustained injuries on the left index finger as well as on the dorsum of medial three fingers on the right hand. Exhibit P5 wound certificate, with the evidence of PW6, establish that when PW4 was examined, the doctor could find an abrasion on the anterior aspect of left leg. Evidence of PW2, corroborated by the evidence of PW6, establish that he sustained the injury when a stone, which was CRRP 546/03 6 thrown at PWs 1 to 4, hit on that part of his body. Exhibit P6 wound certificate of Sathyanesan shows that though he complained of pain on the right clanvil, no external injury could be noted. Exhibit P7 wound certificate of PW2, with the evidence of PW6, establish that though he had complained of pain on the right dorsum of the foot, there was no external injury. In Exhibits P4 to P7, the Doctor recorded that it was disclosed to him by the respective injured that they sustained injuries when petitioner threw stones from the upper portion of Alappat Junction. Exhibit P1 F.I. Statement was recorded on the same day at 10.15 a.m. and there also PW1 stated the facts deposed from the court, though names of accused 2 and 3 were not mentioned. The version in Exhibit P1 is that petitioner, along with two others, hurled stones at them. It is also stated in Exhibit P1 that on the previous night, when, petitioner, along with two others, were passing through the forest and they were questioned, it was not liked by them and due to CRRP 546/03 7 that grudge, petitioner attacked them. 7. Argument of the learned counsel is that evidence of PWs 1 to 4 should not have been relied on. I have gone through the entire evidence of PWs 1 to 4. On going through the evidence, I find no reason to disbelieve their evidence, either with regard to the injuries sustained by them or the mode by which, they sustained the injuries or the fact that it was the petitioner, along with two others, who inflicted those injuries on PWs 1 to 4. Prosecution has, therefore, successfully established that petitioner voluntarily caused hurt to PWs 1 to 4. 8. Evidence of PWs 1 to 4 establish that PWs 1 and 4 were Forest Guards and PWs 2 and 3 were Foresters. This fact was not disputed. It is, therefore, established that PWs 1 to 4 were public servants. 9. Though the general diary was not produced, evidence of PWs 1 to 4 is that they were on night patrol duty and were returning to the station at 3 CRRP 546/03 8 a.m. when the incident occurred. Argument of the learned counsel is that as they were returning after completing the night patrol duty, they were not discharging their official duty. Evidence of PWs 1 to 4 establish that the night patrol duty starts from the office and would be completed only on returning back to the office. That aspect was not challenged. Even if it is taken that PWs 1 to 4 had completed the night patrol duty and were returning to the station, it cannot be said that they were not on official duty at that time or that they were not discharging their official duty. 10. Though reliance was placed on the decision of the Apex Court in Chattaiah's case (supra), that was a case where the allegation was that accused caused hurt to a Typist of Panchayat Samithi Office with intention to deter him from discharging his official duty and thereby committed an offence under Section 332 of Indian Penal Code. Their Lordships, on the evidence, found that though PW1, CRRP 546/03 9 the injured, was a public servant, there was no evidence to prove that he was discharging his official duty at that time and therefore, an offence under Section 332 of Indian Penal Code is not attracted and only an offence under Section 323 of Indian Penal Code is attracted. On the facts of this case, the said decision has no application. It is not mandatory for a conviction under Section 332 of Indian Penal Code that it must be shown that the injured, to whom hurt was caused, was discharging his official duty when the hurt was caused in order to deter him from discharging his official duty. 11. Section 332 of Indian Penal Code reads: Whoever voluntarily causes hut to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter 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 three years, or with fine, or with both. CRRP 546/03 10 12. An offence under Section 332 of Indian Penal Code is attracted if the accused voluntarily caused hurt to any person being a public servant in the discharge of his duty. It is not necessary to establish further that hurt was voluntarily caused to prevent or deter that person from discharging his duty as a public servant. On the other hand, if hurt was voluntarily caused to a public servant, while not discharging his duty as a public servant, it is necessary to prove that hurt was caused with intent to prevent or deter that person or any other public servant from discharging his duty. On the other hand, if hurt was voluntarily caused to a public servant, while he was discharging his official duty as such public servant, it is not necessary to establish further that it was so caused with the intention to prevent or deter that person from discharging his duty as such public servant. On the other hand, even if hurt was caused voluntarily to a public servant, if he was not discharging his duty as a public servant at that CRRP 546/03 11 time, it is necessary to prove additionally that hurt was caused to prevent or deter that person from discharging his duty as a public servant. 13. Ingredients of an offence under Section 332 of Indian Penal Code are (1) hurt must have been caused to a public servant and (2) it must have been caused - (a) while such public servant was acting in the discharge of his duty as such, or (b) in order to prevent or deter him from discharging his duty as a public servant or (c) in consequence of his having done or attempted to do anything in the lawful discharge of his duty as such a public servant. Evidence necessary to establish an offence under Section 332 of Indian Penal Code are (a) the accused voluntarily caused bodily pain, disease or infirmity to the victim (as provided under Section 321 of Indian Penal Code), (b) the victim of the hurt is a public servant and (c) at the time of causing of hurt, the public servant concerned was discharging his duties qua public servant. CRRP 546/03 12 14. If these aspects are proved, conviction of the petitioner for the offence under Section 332 of Indian Penal Code is perfectly legal. So also, in addition to the evidence that accused voluntarily caused bodily pain, disease or infirmity to the victim and the victim of the hurt is a public servant, though, at the time of causing hurt, he was not discharging his duty as such public servant, there must be evidence to prove that hurt was caused by the accused with the intention to deter the public servant concerned from discharging his duty as a public servant or there must be evidence to prove that accused voluntarily caused bodily pain, disease or infirmity to the victim and the victim of the hurt is a public servant and additionally, the hurt was caused in consequence of anything done or attempted to be done by the victim in the lawful discharge of his duty as a public servant. Therefore, an analysis of Section 332 of Indian Penal Code would establish that if prosecution case is that accused voluntarily caused CRRP 546/03 13 hurt to a public servant while he was discharging his official duty as a public servant, ingredients of an offence under Section 332 of Indian Penal Code are satisfied. In such a case, it is not necessary to additionally prove that the accused caused hurt with an intention to deter the public servant concerned, from discharging his official duty. That additional evidence need be proved in a case where, prosecution has no case that the person, who sustained hurt, was, at the time of sustaining the hurt, discharging his duty as a pubic servant, though he is a public servant. Therefore, I cannot agree with the submission of the learned counsel that for the failure to produce the general diary and establish that PWs 1 to 4 were discharging their official duty, hurt was caused with the intention to deter PWs 1 to 4 from discharging their official duty, an offence under Section 332 of Indian Penal Code is not attracted. Evidence establish that PWs 1 to 4 sustained hurt, which were inflicted by the petitioner, along with CRRP 546/03 14 two unidentified persons. PWs 1 to 4 were public servants. They were discharging their duty as public servants at that time, when they sustained the hurt. Hence, conviction of the petitioner for the offence under Section 332 of Indian Penal Code is perfectly legal. 15. Then the only question is regarding the sentence. Section 332 of Indian Penal Code provides punishment of imprisonment which may extend to three years or fine or both. True, the incident was in 1993. Petitioner could successfully protract the case by filing the appeal and revision. That delay cannot be taken advantage by the petitioner to contend that leniency is warranted. As petitioner voluntarily caused hurt to PWs 1 to 4, the forest officials, while they were discharging their official duty, I find no reason to be lenient so as to convert the sentence to a fine as sought for. Considering the fact that the incident was in 1993, interest of justice will be met if the substantive sentence is reduced from six months to three CRRP 546/03 15 months. Revision is allowed in part. Conviction of the petitioner for the offence under Section 332 of Indian Penal Code is confirmed. Sentence is modified. Petitioner is sentenced to simple imprisonment for three months and a fine of Rs.5,000/- and in default, simple imprisonment for one month. Petitioner is directed to appear before Judicial First Class Magistrate, Ranni on 17.08.2010. The Magistrate is directed to execute the sentence. 9th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 546/03 16 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.546 of 2003 -------------------------- ORDER 9th July, 2010