IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 CRL.A.No. 1435 of 2011(D) -------------------------------------- SC.663/2010 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC-II), KOLLAM .................... APPELLANT. ------------------- VISWANATHAN ACHARI, C. NO.6438, CENTRAL PRISON, TRIVANDRUM. BY ADV. ADV SUJESH KUMAR K.P. [STATE BRIEF] RESPONDENT(S): -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SMT.LALIZA T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs V.K.MOHANAN, J. ------------------------------- Crl.A.No.1435 of 2011 ------------------------------- Dated this the 2nd day of December, 2011. J U D G M E N T Challenging the judgment dated 12.7.2011 of the court of Additional District and Sessions Judge (Ad hoc)-II, Kollam, the sole accused therein preferred this appeal aggrieved by the conviction and sentence imposed against him for the offence punishable under Section 332, 333 and 324 of IPC. 2. The case of the prosecution in brief is that, while the police party lead by PW4, the Sub Inspector of police attached to Sakthikulangara police station, were on law and order patrol duty, PW4 received a telephonic information that a person was behaving in a disorderly manner causing inconvenience and nuisance to general public in the road in front of the Brother's hotel in Ramankulangara and accordingly, PW4 accompanied by PW1 in a police jeep driven by PW2, reached at the spot and found a person in an aggressive and disorder manner and the police jeep stopped there and when Pws.1 and 4 approached him, immediately 2 Crl.A.No.1435 of 2011 the accused gave a blow on the right cheek of PW1 causing injury on PW1 and the accused scratched on the face of PW4 and on seeing this incident, when PW3 an autorikshaw driver came to the spot to help the police to remove the accused, the accused bite on the left forearm of the said autorikshaw driver-PW3, causing injuries. Thus according to the prosecution, the accused has committed the offence punishable under Section 324, 332 and 333 of IPC. 3. With the above allegation, crime No.571 of 2009 was registered in the Sakthikulangara police station and on completing the investigation, laid the charge before the court of Judicial First Class Magistrate-II, Kollam, which was taken on file as C.P.No.67 of 2010 and subsequently the learned Magistrate by his order dated 12.4.2010 in the above proceedings committed the case to the Sessions court where the same received as S.C.No.663 of 2010. As the accused was in custody, he was produced before the trial court and he was given legal aid by appointing an advocate and thus after hearing the prosecution as well as the defence, a formal 3 Crl.A.No.1435 of 2011 charge was framed against the accused for the offence punishable under Sections 324, 332 and 333 of IPC and when the said charge read over and explained to the accused, he denied the same and pleaded not guilty, which resulted in the further trial of the case, during which the prosecution adduced its evidence by examining Pws.1 to 8 and producing Exts.P1 to P9 documents. The defence has also adduced evidence by examining DW1 and marked Ext.D1. Finally, the learned Sessions Judge has found that the prosecution has succeeded in proving its allegation against the accused beyond reasonable doubt and it was also found that the accused has not succeeded in proving that he was suffering from unsoundness of mind and incapable of knowing the nature of the act that he was doing at the time of the commission of the offence. Accordingly, the accused was found guilty of the charge levelled against him and he is convicted thereunder. On such conviction, the accused is sentenced to undergo one year rigorous imprisonment each for the offence punishable under Sections 324 and 332 of 4 Crl.A.No.1435 of 2011 IPC. He is also sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo rigorous imprisonment for 3 more months, for the offence under Section 333 of IPC. The sentence are ordered to run concurrently and set off is allowed with respect to the period of imprisonment undergone by him as an under-trial prisoner. It is the above findings, conviction and sentence are challenged in this appeal 4. As the appellant is undergoing imprisonment in pursuance to the impugned judgment and as the appeal is preferred from the jail, on receiving such jail appeal, as ordered by this Court Adv.Sri.Sujeshkumar K.P., is appointed from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Thus I have heard Adv.Sujeshkumar K.P., learned counsel for the appellant and Smt.laliza T.Y., learned Public Prosecutor. 5. Among the eight prosecution witnesses, Pws.1 to 4 are the occurrence witnesses. PW1 is the police constable 5 Crl.A.No.1435 of 2011 who accompanied PW4 on 24.11.2009 while they were on the law and order patrol duty. When PW1 was examined, he had deposed in terms of the prosecution allegation and he had categorically deposed before the court that the accused slapped on his right cheek as a result of which he sustained the injury and lost the hearing capacity of his right ear. PW2 is the police constable who was the driver of the jeep in which Pws.1 and 4 were proceeded to the spot, on getting information by PW4 through telephonic message which I indicated earlier. PW2 is an eye witness who was present at the spot connected with discharging his official duty of being the driver of the police jeep. He had also deposed in favour of the prosecution. PW3 is an autorikshaw driver who in his deposition completely supported the prosecution case and identified the accused as the person who bite on his right hand, when PW3 helped Pws.1 and 4 to take the accused to the police jeep from the spot. When PW4, the then Sub Inspector of police, Sakthikulangara police station, was examined, he had also stated strictly in accordance with the 6 Crl.A.No.1435 of 2011 prosecution allegation. According to PW4, when himself along with PW1 was on law and order patrol duty in the jeep driven by PW2, he received an information to the effect that one person was behaving disorderly and creating public nuisance and according to PW4, on receiving such an information, himself and party reached at the spot and found the accused creating trouble for the general public and therefore Pws.1 and 4 approached the person so creating trouble. PW4 further states that, when they approached, the accused slapped on the right cheek of PW1 as a result of the same, PW1 lost his hearing capacity and the accused snatched on his face by poring with nails of the accused. When PW4 was examined, the prosecution has marked Ext.P1 FIR, Ext.P2 scene mahazar and Ext.P3 inspection memo and Ext.P4 remand application through PW4. PW5 is the then Circle Inspector of police who laid the charge. PW6 is the doctor attached to the District Hospital, Kollam, who issued Ext.P6 wound certificate with respect to PW1, Ext.P7 wound certificate with respect to PW3 and Ext.P5 wound 7 Crl.A.No.1435 of 2011 certificate with respect to PW4. When PW6 was examined, he had also deposed in favour of the prosecution, on the basis of the contents of Exts.P5, P6 and P7. PW7 is an attestor to Ext.P2 scene mahazar. PW8 is the doctor attached to Medical college, Thiruvananthapuram, who examined PW1 and who issued Ext.P8 treatment certificate and Ext.P9 O.P. ticket was proved through PW9. 6. The defence version, while denying the prosecution allegation, is that the accused was taken into custody from Ramankulangara and detained in the police station and falsely implicated him in the crime. It is the further case of the defence that the accused was suffering from unsoundness of mind and not capable of knowing the nature of the act at the time of the commission of the offence. In order to substantiate the above version, the accused was examined as DW1 and marked Ext.D1. DW1 is the Assistant Surgeon attached to the District Hospital, Kollam, through whom the defence has proved Ext.D1 O.P. ticket with respect to the accused. According to DW1 and as per Ext.D1, the 8 Crl.A.No.1435 of 2011 accused was a chronic alcoholic with history of some psychiatric disorder. DW1 says that there was no suspicion that he is a psychiatric patient. These are the evidences and materials which formed the basis for the findings and conviction recorded by the learned Judge of he trial court, which findings and conviction are challenged in this appeal. 7. Sri. Sujeshkumar K.P., learned counsel for the appellant vehemently submitted that as per the available evidence it can be seen that, at the time and on the date of the incident the accused was a psychiatric patient and he was also a chronic alcoholic and therefore the accused is entitled to get the benefit under Section 84 of IPC but the learned Judge of the trial court has miserably failed to extent that benefit in favour of the appellant/accused. It is also the submission of the learned counsel that the prosecution has failed to prove the case against the accused beyond reasonable doubt, since according to the learned counsel no independent witness was examined, eventhough the prosecution claims that several persons were available at the 9 Crl.A.No.1435 of 2011 place of the incident. According to the learned counsel, the occurrence witnesses cited and examined by the prosecution are the official witnesses as well as the injured witness. The evidence of those highly interested and injured witnesses are not corroborated by any independent evidence and therefore it cannot be said that the prosecution has proved the case beyond reasonable doubt. In support of the above submission it is pointed out that, in Ext.P5 wound certificate with respect to PW4 towards, in the history of the assault it is recorded as, 'scratch from the police jeep'. But according to the prosecution, PW4 sustained such injury when himself was tried to remove the accused from the spot. Another point advanced by the learned counsel is that, the investigation was not proper and impartial, since the same was carried out by PW4 who is an injured in the present case. According to the learned counsel, since Pws.1 and 4 allegedly sustained injuries connected with the incident, an investigation ought to have been entrusted with another superior officer of the police department but that was not done in this case and 10 Crl.A.No.1435 of 2011 therefore it cannot be said that a fair and proper investigation was conducted by PW4, who is one of the injured in the present case. In support of the above contention, the learned counsel placed reliance upon the decision of the Honourable Apex court reported in Bhagwan Singh Vs. State of Rajasthan (1976(1) SCC 15). Thus according to the learned counsel, the appellant is entitled to get a clear acquittal. It is also the submission of the learned counsel that the sentence awarded is disproportionate and exorbitant. 8. On the other hand, the learned Public Prosecutor submitted that the incident was taken place when the police officials arrived at the place of occurrence on receiving telephonic information and while discharging official duties, the accused interfered with the same and inflicted injuries on such official witnesses as well as independent witness who assisted the police to remove the accused. The learned Public Prosecutor has pointed out that, Pws.1, 2 and 4 are official witnesses and PW3 is an independent witness who 11 Crl.A.No.1435 of 2011 also sustained injuries at the hands of the accused. It is also pointed out by the learned Public Prosecutor that besides the official witnesses and the injured witness, there is PW7 who is an attestor to Ext.P2 scene mahazar and he had also spoken to in terms of the prosecution evidence and therefore it cannot be said that there is no independent evidence. On the strength of Exts.P5 to P7, the learned Public Prosecutor submitted that the police officials as well as the independent witness sustained injuries at the hands of the accused and thereby the intention of the accused was to deter the public officials from discharging their official duties. Thus according to the learned Public Prosecutor, considering the seriousness of the allegation and the nature of offence, no interference is warranted, especially, in the absence of any serious challenge against the evidence of the prosecution witnesses. 9. I have carefully considered the arguments advanced by the learned counsel for the appellants and learned public Prosecutor. I have perused the judgments of the trial court, and scrutinised the evidence and the materials on record. 12 Crl.A.No.1435 of 2011 10. In the light of the rival contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor and in the light of the materials and evidence on record, the question to be considered is whether the trial court is justified in its finding and convicting the accused for the offence under Section 324, 332 and 333 of IPC. I have already stated about the evidence of the prosecution witnesses, mainly that of the occurrence witnesses, who are injured also. In the light of the argument advanced and in the light of the cross examination conducted on behalf of the defence it can be seen that, there is no serious challenge against the deposition of the prosecution witnesses ie., Pws.1 to 4. Out of Pws.1 to 4 except PW2, all others sustained injuries. I am not proposing to repeat the prosecution allegation and the circumstances under which these witnesses sustained injuries. The evidence connected with those facts and circumstances clearly shows as to how and when Pws.1, 2 and 4 reached at the spot. They have also deposed as to how Pws.1, 3 and 4 sustained injuries from the 13 Crl.A.No.1435 of 2011 accused. The above evidence of the official witnesses as well as the independent injured witness is fully corroborated by the documentary evidence, namely Exts.5, 6 and 7 wound certificates, which are contemporary documents. Though the accused advanced a contention to the effect that he is falsely implicated in the crime, nothing brought on record to substantiate such a claim. Whereas the evidence of the prosecution witnesses, particularly the injured, it can be seen that the accused attacked the official witnesses when they tried to remove the accused from the public road, while they were discharging their official duties and during such incident they sustained injuries also. As correctly pointed out by the learned Public Prosecutor the evidence of Pws.1, 2 and 4 who are the official as well as injured witness is fully supported by the evidence of PW7, an independent witness, who is an attestor to Ext.P2. Though the official witnesses Pws.1, 2 and 4 were subjected to lengthy cross examination, nothing brought on record to discredit their version and the same is the position with respect to PW3, an independent 14 Crl.A.No.1435 of 2011 witness, who is also injured in the same incident. In the light of the materials referred to above, I am of the view that the contention advanced by the counsel for the appellant that the prosecution failed to prove the case beyond reasonable doubt, as there was no independent evidence, is not sustainable and accordingly, I reject the same. 11. Another point raised by the counsel is that the appellant is entitled to get benefit of Sections 84 and 85 of IPC. In support of the above contention, the learned counsel on the basis of the evidence of DW1 and Ext.D1 submitted that the appellant is a psychiatric patient and he was drunken at the time of the alleged incident but the learned Judge of the trial court did not extent the benefit under Sections 84 and 85 in favour of the appellant. I am unable to sustain the above contention especially, in the light of the evidence of the defence itself. Ext.D1 is not sufficient to prove positively that at the time of the alleged incident the accused has a psychiatric problem or having unsound mind or he was drunken. DW1 during the cross examination has 15 Crl.A.No.1435 of 2011 stated that she is not a psychiatrist and according to her, there was only a suspicion that the accused was a psychiatric patient. She also confessed that there is no proof to prove that the accused is a psychiatric patient. It is also deposed by DW1 that the accused was a chronic alcoholic. This witness again, as an answer to the question put by the court has stated that “when alcoholic addict is showing withdrawal symptoms, there is possibility of showing the symptoms of psychiatric disorders.” From the above discussion it can be seen that the defence evidence are not sufficient to hold that the accused was a person of unsound-mind and incapable of knowing the nature of the act at the relevant time. To get the benefit under Section 84 or 85 of IPC, it is incumbent upon the accused to establish that the person who invoke such benefit has to prove positively that he was of unsound mind or incapable or incapacitated of knowing the nature of the acts done by him at the relevant time and simply showing that once he had such an unsound state of mind or incapacity of knowing the nature of the act, it cannot be said that he 16 Crl.A.No.1435 of 2011 had succeeded in establishing such defence. On the other hand, he has to prove positively that at the relevant time he was having such a state of affairs as contemplated under Section 84 and 85 of IPC. Therefore, the contention raised by the learned counsel based on Sections 84 and 85 are not sustainable. 12. Another ground advanced by the learned counsel for the appellant is that the investigation was conducted by PW4, who is an injured and therefore there is no guarantee for an impartial and independent investigation. In support of the above contention, as I indicated earlier, the learned counsel placed reliance upon the decision of the Honourable Apex court reported in 1976(1) SCC 15. In the present case, the allegation against the appellant is that, when Pws.1 and 4 were engaged in discharging their official duty on the basis of the telephonic information received by PW4 and when attempted to remove the accused from the public road, so as to avoid further disturbances that might have caused to the public officials, the accused inflicted injuries on them with an 17 Crl.A.No.1435 of 2011 intention to deter them from discharging their duties. As far as the present case is concerned, the main part of the investigation is over by the arrest of the accused from the place of occurrence. If so, it is mandatory upon the officials, who arrested the accused, to produce him before the court within the stipulated time and the same can be done only after registering an FIR. It is PW4, who was attacked while he was discharging his official duty and at that time PW4 is not expected to set free the accused and to entrust the matter with another officer of the police department. Though the learned counsel submitted that the investigation was conducted by PW4 and thereby the investigation rendered as illegal or improper, nothing brought on record to show that any prejudice has caused to the accused. The accused has got an opportunity to cross examine PW4 and other witnesses but nothing brought on record to show that the accused is prejudiced because the witnesses were questioned by PW4. The facts and circumstances involved in the case, which relied on by the counsel is entirely different 18 Crl.A.No.1435 of 2011 from the present one. In that case, the allegation itself is that the accused approached the police man by offering bribe and the said officer conducted the investigation. So the offence alleged and the prosecution footing in that case, are entirely different one. But in the present case, the incident was taken place when PW4 and other police men were on official duty and PW4 is not the only injured and the substantial injury is sustained by PW1. Therefore, the facts and circumstances involved in the case shows that the accused/appellant is not prejudiced in any way due to the investigation undertaken by PW4 and therefore the contention of the learned counsel in this respect is not sustainable. 13. In the light of the above discussion and the evidence and materials referred to above, I find no reason to interfere with the findings and the order of conviction recorded by the learned Judge of the trial court and accordingly, I confirm the conviction recorded by the trial court against the appellant/accused for the offence under 19 Crl.A.No.1435 of 2011 Sections 324, 333 and 334 of IPC. 14. The learned counsel for the appellant submitted that the sentence awarded against the appellant is exorbitant and a lenient view may be taken in the matter of sentence, especially considering the social background of the accused. I find some force in the submission of the learned counsel. 15. From the records it appears that, at the time of the incident the accused was at the age of 51 and now more than 2 years are over. It is also relevant to note that as there was no sufficient financial capacity, during the trial of the case, he was not in a position to engage a lawyer of his own choice and the case was conducted by an advocate appointed by the court below by providing legal aid. In this Court also, the appellant is not in a position to appoint a counsel of his own choice and he is undergoing imprisonment and hence an advocate is appointed at the state expense. From the documents available on record it can be seen that the accused has got some psychiatric problem. 16. Under the above mitigating circumstances, 20 Crl.A.No.1435 of 2011 according to me the sentence awarded against the appellant/accused requires reconsideration and according to me while confirming the sentence awarded against the appellant under Section 324 and 332 of IPC, the substantial sentence and the default sentence imposed against the appellant under Section 333 of IPC can be reduced. Thus while confirming the sentence awarded against the appellant for the offence punishable under Section 324 and 332 of IPC, the sentence imposed on the appellant for the offence punishable under Section 333 is modified and reduced and accordingly he is sentenced thereunder to undergo rigorous imprisonment for 2 years and while confirming the sentence to pay fine, the default sentence ordered by the court below is modified and reduced into one month simple imprisonment and the sentence shall run concurrently and the appellant is entitled to get set off under Section 428 of Cr.P.C. 17. In the result, this appeal is dismissed, confirming the conviction and sentence of the appellant for the offence under Section 324 and 332 IPC and confirming the 21 Crl.A.No.1435 of 2011 conviction of the appellant under Section 333 of IPC but subject to modification with respect to the sentence under Section 333 of IPC to the extent indicated above. 18. As the substantial sentence under Section 333 of IPC and the default sentence thereunder are modified and to run concurrently with the sentence for other offences and set off is allowed, it appears that, the appellant has completed his imprisonment in terms of the modified sentence. Therefore, the Registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Thiruvananthapuram, for appropriate action. V.K.MOHANAN, Judge ami/