IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 Crl.Rev.Pet.No. 1401 of 2003 ---------------------------------------------- CRA.102/2002 of I ADDL.SESSIONS COURT, ERNAKULAM CC.641/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: P.K.HARIHARAN, S/O. P.V.KUMARAN, NGO - QUARTERS 1 TYPE-101, KAKKANADU. BY ADV. SRI.K.S.SAJEEV KUMAR RESPONDENTS/RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. 2. PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1401 of 2003 -------------------------- ORDER Petitioner, the accused in C.C.No.641/1998, was convicted and sentenced for the offences under Sections 294(b), 324 and 353 of Indian Penal Code by Judicial First Class Magistrate-II, Ernakulam. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.No. 102/2002. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Prosecution case is that petitioner was a Field Worker of NFCP Unit, Ernakulam under the Health Department. PW1 was the Field Assistant and PW2 was the Field Inspector, who was in charge of Anti Filaria Unit. The duty of the petitioner was to spray anti-mosquito drug to prevent growth of mosquitoes. PW1 has to supervise the work. On CRRP 1401/03 2 29.12.1997 at about 8.45 a.m., PWs 1 and 2 had gone to verify whether petitioner has done the work properly. Finding PWs 1 and 2 verifying the canal to find out whether mosquitoes are there, petitioner rushed to them, uttered obscene words and thereafter sprayed Bytex, a pesticide used for preventing the mosquitoes, on the faces of PWs 1 and 2, causing irritation on their eyes and faces and thereby voluntarily caused hurt to PWs 1 and 2 and also obstructed PWs 1 and 2 from discharging their duty. Petitioner, thereby, committed offences under Sections 294(b), 324 and 353 of Indian Penal Code. 3. Petitioner pleaded not guilty. Prosecution examined PWs 1 to 7 and marked Exhibits P1 to P7. Learned Magistrate, exercising the powers under Section 311 of Code of Criminal Procedure, directed PW7, when he was partly examined, to produce the General Diary maintained at the Armed Reserve Camp, Ernakulam. Thereafter, PW7 was further examined and CRRP 1401/03 3 Exhibits C1 and C1(a) were marked. On the side of the petitioner, DWs 1 and 2 were examined and Exhibit D1, a portion of the statement of PW2, recorded under Section 161 of Code of Criminal Procedure, which was confronted, was marked. 4. Learned Magistrate, on the evidence, found the petitioner guilty and convicted him for all the offences. Learned Additional Sessions Judge also confirmed that finding. 5. Petitioner would contend that courts below did not properly appreciate the evidence and due to the contradictions in the evidence of PWs 1 and 2, it should have been found that their evidence is not believable. It is contended that in any case, when the pesticide, which was allegedly sprayed on the faces of PWs 1 and 2, was not seized and produced before the court, conviction of the petitioner for the offence under Section 324 of Indian Penal Code is not sustainable. It is also contended that when no independent witness was CRRP 1401/03 4 examined, especially when, evidence of PW1 establishes that the Constables from Armed Reserve Camp, Ernakulam had witnessed the incident, the interested version of PWs 1 and 2 should not have been accepted by the courts below, as they have got reasons to foist a case. It is also contended that there are contradictions in the obscene words used, as spoken to by PWs 1 and 2 and therefore, conviction of the petitioner for the offence under Section 294(b) of Indian Penal Code is not sustainable. Petitioner would contend that when there is no evidence to prove that PWs 1 and 2 were discharging their duty at the scene of occurrence on that day, conviction of the petitioner for the offence under Section 353 of Indian penal Code is illegal. 6. Learned counsel appearing for the petitioner argued that courts below did not appreciate the evidence of PWs 1 and 2 in the proper perspective. It was pointed out that the material contradictions CRRP 1401/03 5 were not properly considered. Learned counsel would argue that evidence of PW1 establishes that Constables of Armed Reserved Camp, who allegedly witnessed the incident, were not cited as witnesses and on the interested versions of PWs 1 and 2 alone petitioner should not have been convicted. Learned counsel argued that there is delay in lodging the F.I. Statement and the delay was not properly explained and PWs 1 and 2 were treated only as outpatients and subsequently records were created to foist the case and based on the evidence, conviction of the petitioner for the offences under Sections 294(b), 324 and 353 of Indian Penal Code is not sustainable. Argument of the learned counsel, relying on the decision of the Apex Court in Kartarey v. State of U.P. (AIR 1976 SC 76), is that when the pesticide, which was allegedly sprayed on the faces of PWs 1 and 2, was not seized and produced before the court, conviction of the petitioner for the offence under Section 324 of CRRP 1401/03 6 Indian Penal Code is illegal. Learned counsel also submitted that apart from the oral evidence of PWs 1 and 2, there is no evidence to prove that PWs 1 and 2 were discharging their official duty at the scene of occurrence on the date and time of the incident and in such circumstances, conviction of the petitioner for the offence under Section 353 of Indian Penal Code is not sustainable. Reliance was placed on the decision of this Court in Mohammed Kutty v. State of Kerala (2004 (1) KLT 331). Learned counsel also argued that evidence of PWs 1 and 2, being contradictory, cannot be relied on to prove that petitioner had uttered obscene words and therefore, conviction of the petitioner for the offence under Section 294(b) of Indian Penal Code is also not sustainable. 7. Learned Public Prosecutor submitted that learned Magistrate and learned Additional Sessions Judge appreciated the evidence in the proper perspective. The fact that petitioner sprayed CRRP 1401/03 7 pesticide on the faces of PWs 1 and 2 is proved by the evidence of PWs 1 and 2 and it was corroborated by the evidence of PW7 and Exhibit C1(a) entry in the General Diary maintained at the Armed Reserve Camp. When PWs 1 and 2 were cross-examined, their version that they were supervising the work of the petitioner on the date of the incident was not disputed. When PW5, the Doctor, was examined and the Doctor had given evidence that the injuries noted in Exhibits P3 and P4 wound certificates and Exhibits P7 and P8 treatment records could be caused by spraying of Bytex, a pesticide used for mosquitoes, that evidence was also not disputed and in such circumstances, non production of the pesticide is not fatal. Learned Public Prosecutor submitted that in such circumstances, there is no reason to interfere with the conviction. 8. The incident was on 29.12.1997 at about 8.45 a.m. near to the Armed Reserve Camp, Ernakulam. The fact that petitioner was a Field Worker and it is CRRP 1401/03 8 his duty to spray pesticide to prevent growth of mosquitoes and PW1 is his superior officer, whose duty is to verify the work executed by the petitioner, are not at all disputed at the time of evidence. Though petitioner would contend that the case was foisted, when PW7 was examined and deposed that he has attested Exhibit P5 scene mahazar, he was questioned whether the incident was reported and it was entered in the General Diary maintained at the Armed Reserve Camp. In fact, the Duty Officer of the Armed Reserve Camp, Ernakulam from 6 p.m. on 28.12.1997 to 6 p.m. on 29.12.1997 was examined as PW4. PW4 deposed that he was on duty at 8.45 a.m. on 29.12.1997 and getting information that something had happened in between petitioner and PWs 1 and 2, he had gone there and at that time, it was disclosed that PWs 1 and 2 had been there to supervise the work of the petitioner and petitioner sprayed pesticide on their faces and he has recorded this fact in the General Diary. When CRRP 1401/03 9 PW7 deposed that there is an entry in the General Diary, learned Magistrate, exercising the powers under Section 311 of Code of Criminal Procedure, in the interest of justice, called for the Diary and postponed examination of PW7. After production of Exhibit C1, PW7 was further examined and Exhibit C1 (a) entry was marked. Exhibit C1(a) entry corroborates the evidence of PW4 that the incident was reported to him and he had made the entry in Exhibit C1 General Diary. 9. Learned counsel argued that learned Magistrate should not have suo-motu called for the General Diary. I cannot agree with the submission. A Magistrate, trying a criminal case, is not a silent spectator. It is his duty to find out the truth and if the Magistrate finds that material aspect is there in the General Diary and to decide the case that document is necessary, Magistrate is competent to call for the diary exercising the power under Section 311 of Code of Criminal CRRP 1401/03 10 Procedure. Hence, calling for Exhibit C1 General Diary by the learned Magistrate cannot be said to be illegal. Petitioner was granted permission to cross-examine PW7 with respect to the entries. As stated earlier, Exhibit C1(a) entry corroborates the evidence of PWs 1, 2 and 4. 10. Learned Magistrate and learned Additional Sessions Judge properly appreciated the evidence of PWs 1, 2, 4 and 7. Their evidence establish that PWs 1 and 2 had gone to the scene near to Armed Reserve Camp to verify whether petitioner was discharging his duty properly. Infuriated by their act, petitioner sprayed pesticide on the faces of PWs 1 and 2, after uttering obscene words and voluntarily caused hurt to PWs 1 and 2. Evidence of PW5, the Doctor, with Exhibits P3 and P4 wound certificates and Exhibits P7 and P8 case sheets maintained at the General Hospital, Ernakulam, where PWs 1 and 2 were treated as inpatients, establish that PWs 1 and 2 sustained hurt and the CRRP 1401/03 11 hurt was caused by the petitioner by spraying pesticide. Though learned counsel argued that as the pesticide was not seized and produced before the court, there is no evidence to prove that the pesticide was harmful to the body, was sprayed on the faces of PWs 1 and 2. PW5 deposed that he had examined PWs 1 and 2 and prepared Exhibits P3 and P4 wound certificates and the alleged cause of injuries reported was spraying of pesticide on their faces and the said injuries could be caused by spraying pesticide. That evidence of PW5 was not challenged in cross-examination. There was not even a suggestion that the pesticide, if sprayed on the faces, will not cause hurt or hurt was caused by any other means. Exhibits P7 and P8 case sheets would further establish that the pesticide was Bytex and as PWs 1 and 2 were having pain and irritation on the eyes and they were admitted as inpatients and were discharged only on 01.01.1998. Though learned counsel argued that Exhibits P7 and CRRP 1401/03 12 P8 records cannot be relied on, as PWs 1 and 2, after completing the treatment as outpatients, subsequently created those documents to prove treatment as inpatients, on going through Exhibits P7 and P8, I cannot agree with the submission. Exhibits P7 and P8 contain the OP tickets issued to PWs 1 and 2. It is only after obtaining the OP ticket, a patient is examined at the OP counter. OP tickets show that the details seen in Exhibits P3 and P4 as well as the Blood Pressure and the details of medicines were recorded there. Both OP tickets contain an endorsement by the Doctor to admit the patients in the hospital. Exhibits P7 and P8 records show that they were admitted and treated as inpatients. On going through the evidence of PW5 and Exhibits P7 and P8 records, I have no hesitation to hold that PWs 1 and 2 were treated as inpatients in the hospital and they were examined by the Doctor immediately after the incident on the complaint that they were having pain and irritation CRRP 1401/03 13 on their eyes and it was caused by spraying of the pesticide, used to be sprayed by the petitioner to prevent mosquitoes. Evidence of PWs 1 and 2 that they had gone there to supervise the work of the petitioner was also not challenged. Petitioner did not dispute the fact that PW1 has to supervise his work and PW2 is the superior officer to PW1. The fact that PWs 1 and 2 were there at the scene of occurrence is proved by Exhibit C1(a) entry. Moreover, petitioner has no case that they had not gone there or were at that time not in discharge of their official duty. On the other hand, evidence of PWs 1 and 2 establish that they were discharging their official duty at that time. In such circumstances, I find no reason to interfere with the findings of the courts below. The question is what are the offences proved. 11. Though there is minor difference in the obscene words revealed by PWs 1 and 2, on the material aspects, there is no difference. Both are CRRP 1401/03 14 undoubtedly obscene words. Evidence of PWs 1 and 2 establish that petitioner had uttered those words. In such circumstances, conviction of the petitioner for the offence under Section 294(b) of Indian Penal Code is perfectly legal. Section 294(b) provides that whoever, to the annoyance of others, sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment as provided therein. The fact that the place is a public place cannot be disputed. Therefore, conviction of the petitioner for the offence under Section 294(b) of Indian Penal Code is perfectly legal. 12. Section 324 of Indian Penal Code provides that whoever 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 any poison or any corrosive substance or by means of any explosive substance or by means of any substance CRRP 1401/03 15 which is deleterious to the human body to inhale, to swallow or to receive into the blood or by means of any animal, shall be punished with imprisonment as provided therein. 13. Evidence of PWs 1 and 2 establish that petitioner sprayed Bytex, a pesticide, on their faces. Evidence of PW5, the Doctor with Exhibits P7 and P8 records establish that the pesticide, sprayed on the faces of PWs 1 and 2, is deleterious to the human body. In such circumstances, conviction of the petitioner for the offence under Section 324 of Indian Penal Code is perfectly legal. 14. Honourable Supreme Court in Kartarey's case (supra), emphasized the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim for proper administration of justice. Their Lordships held “it is the duty of the prosecution and no less of the Court to see that the alleged weapon of the CRRP 1401/03 16 offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes cause aberration in the course of justice”. 15. If pesticide was available in court, learned Magistrate should have shown it to the Doctor and asked whether it would cause those hurts. The pesticide was not seized by the police. Still, evidence of PW5 establishes that the pesticide, if sprayed, would cause the hurt, found on PWs 1 and 2 and recorded in Exhibits P3 and P4 wound certificates. That evidence of PW5 was not challenged in cross-examination. Therefore, non production of the pesticide is not fatal for the conviction under Section 324 of Indian Penal Code in this case. 16. Section 353 of Indian Penal Code provides that whoever assaults or uses criminal force to any CRRP 1401/03 17 person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant shall be punished with imprisonment as provided therein. 17. This Court, in Mohammed Kutty's case (supra), on the facts of the case, found that PW2 was proceeding towards the check post where he was on duty when the incident occurred and therefore, held that though PW2 is a public servant, at that time, when the incident took place, which was near to the check post, he was not on duty as such public servant. It was based on the fact that he could have been only in official duty and on reaching the check post the incident occurred. It can be said that he was on duty and the incident occurred earlier to his reaching the check post. CRRP 1401/03 18 Facts of this case are different. As stated earlier, the fact that PWs 1 and 2 had to supervise the work of the petitioner was not challenged. Evidence of PWs 1 and 2 establish that they were supervising the work of the petitioner at that time. Though learned counsel argued that record showing their movement was not produced, the said non production is not fatal. Evidence establish that PWs 1 and 2 were supervising the work of the petitioner. It is at that time, petitioner sprayed the pesticide on their faces and voluntarily caused hurt to them and thereby prevented them from discharging their official duty. In such circumstances, conviction of the petitioner for the offence under Section 353 of Indian Penal Code is perfectly legal. 18. Then the only question is regarding the sentence. Learned counsel argued that subsequently, the disciplinary proceedings initiated against the petitioner was closed and no action was taken CRRP 1401/03 19 against the petitioner and he is not involved in any other case and in such circumstances, leniency be shown. Learned counsel argued that learned Magistrate has not considered the question whether benefit of Probation of Offenders Act could be granted to the petitioner or not and in such circumstances, the benefit of Probation of Offenders Act be granted to the petitioner. Considering the nature of the offences, learned Magistrate should have considered the question after getting a report from the District Probation Officer. Learned Magistrate is, therefore, directed to call for a report on the petitioner from the District Probation Officer and decide the question whether petitioner could be granted the benefit provided under Probation of Offenders Act. Revision is allowed in part. Conviction of the petitioner for the offences under Sections 294(b), 324 and 353 of Indian Penal Code is confirmed. Sentence is set aside. Judicial First Class CRRP 1401/03 20 Magistrate-II, Ernakulam is directed to call for a report on the petitioner from the District Probation Officer and decide whether the benefit provided under Probation of Offenders Act could be granted to the petitioner or not. Learned Magistrate to consider the question on getting a report from the District Probation Officer and pass appropriate order/sentence. Petitioner is directed to appear before the Magistrate on 05.08.2010. Send back the records immediately. 1st July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1401/03 21 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1401 of 2003 -------------------------- ORDER 1st July, 2010