IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 CRL.A.No. 912 of 2011(D) ------------------------ SC.591/2010 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... APPELLANT(S): -------------- AZIZ, S/O.MOHAMMED, ASLYNA MANZIL, KASARAGOD DISTICT. C.NO.9393, CENTRAL PRISON, KANNUR. BY ADV. SAJITHA S DHARAN[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.SAJITHA S.DHARAN, STATE BRIEF SMT.LOWSY A., PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl.A.No.912 of 2011 ------------------------------- Dated this the 13th day of December, 2011. J U D G M E N T Crime No.277 of 2007 was registered in the Manjeshwar police station for the offence punishable under Section 308, 332 and 34 of IPC, on the allegation that, when PW1 was on duty as a peon at Sales tax check post at Baikkatta in Paivalige village, on 6.9.2007 the accused persons came in a Maruti car and when there was some delay from the part of PW1 to open the barricade, the accused annoyed by this delay, beat A1 with an iron lever spanner on his head and the second accused slapped and pushed PW1 and thus inflicted injuries. According to the prosecution, due to the above attack made by A1 and A2, PW1 has been deterred from discharging his official duty. The trial court while acquitting the accused for the offence punishable under Section 308 of IPC, convicted the 2 Crl.A.No.912 of 2011 appellant for the offence under Section 332 of IPC and sentenced him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.2,000/- and in default he is directed to undergo rigorous imprisonment for a further period of 6 months. It is also ordered that on realisation of the fine amount, the entire fine amount shall be paid to PW1 by way of compensation under Section 357(1)(b) of Cr.P.C. Aggrieved by the above conviction and sentence, the first accused preferred this appeal. 2. On the basis of the above crime, the police undertook investigation and finally laid the charge before the court of Judicial First Class Magistrate-I, Kasaragod, where the report is received as C.P.No.350 of 2007. Only the first accused, the appellant herein, appeared before the committal court and consequently the learned Magistrate by his order dated 29.2.2008 in the above proceedings committed the case to the Sessions court. The case against A2 was splitted up as he is absconding. On receiving the case records as per the committal proceedings, the same 3 Crl.A.No.912 of 2011 was received as S.C.No.591 of 2010 and subsequently the case is made over to the trial court for disposal. When the appellant/1st accused absconded, the case was transferred to LP. register as L.P.C.No.26 of 2010 and subsequently he was produced on production warrant as he was available in judicial custody connected with some other case and accordingly the case is refiled. Thus after hearing the defence and the prosecution, a formal charge was framed against the appellant for the offence under Section 332, 308 r/w 34 of IPC. The said charge was read over and explained to the accused who denied the charge and pleaded not guilty. Consequently, the prosecution has adduced its evidence by examining Pws.1 to 10 and producing Exts.P1 to P8 and M.Os.1 and 2. From the side of the defence though no witness was examined, Exts.D1 and D2 were marked. After the prosecution evidence, when the accused was questioned under Section 313, he had denied the incriminating circumstantial evidence which put to him that available in the prosecution evidence. He had 4 Crl.A.No.912 of 2011 denied the entire prosecution case. 3. To prove the prosecution case, the prosecution mainly depends upon the evidence of PW1, the injured, and PW6. PW1, who is the defacto complainant and the injured, when examined he had deposed that he was working as peon in Sales Tax department and particularly working as a peon at Baikkatta check post in Paivalige village. According to him, it is his duty to open and close the barricade in the check post, thus while he was on duty at about 9.30 p.m. on 6.9.2007 at the said check post, a car bearing registration No.KL-F/8106 came from Paivalige side and stopped near the barricade and while he was trying to open the barricade, the accused, two in numbers, came out from the car and the first accused asked him about the delay to open the barricade and according to PW1 at that time the accused beat him with an iron lever on his head. According to PW1, when the accused tried to beat him again, he had warded the block with his left hand and at that time the second accused, Ismail, caught hold off him 5 Crl.A.No.912 of 2011 and dragged him. According to PW1, the second accused also slapped on his face and according to PW1, he had sustained injury on his head and also injuries on his face and knee joint. According to PW1, during the incident the accused has torn his shirt. PW1 has further stated that when PW6 the then Sales tax Inspector, Shajahan, rushed to the spot and cried, people from the locality came and then the accused persons have returned in their car. According to PW1, the accused has attempted to kill him by beating with an iron lever. PW1 has identified the iron lever as M.O.1 and the shirt worn by him at the time of incident as M.O.2. Ext.P1 is also identified and marked through PW1 as the FI statement given by him to the police from the hospital. Pws.2 and 3 are the two independent witnesses cited and examined by the prosecution to prove the incident but they turned hostile. PW4 is another independent witness who is an attestor to Ext.P2 scene mahazar. According to PW4, when the police came at the place of occurrence and prepared Ext.P2 scene mahazar, he was 6 Crl.A.No.912 of 2011 available there and he had attested Ext.P2 scene mahazar. PW4 has also deposed that police had seized M.O.1 spanner and M.O.2 shirt from the scene of occurrence. The suggestion of the defence that he had signed in Ext.P2 from the police station was specifically denied by PW4. PW5 is the doctor attached to Taluk Head Quarters hospital, Kasaragode, who examined PW1 on 6.9.2007, and who issued Ext.P3 wound certificate. In Ext.P3 wound certificate, PW5 has noted a lacerated injury of 6 cm. x 1 cm. x 0.5 cm. on vertex. PW5 has also noted a leniear abrasion on low back left side and an abrasion on dorsum of right elbow and left elbow and an induration on the left side of face near the left eye. When PW5 was examined, he had deposed that the alleged cause of injury, as spoken to by PW1, was due to the assault by the identifiable two persons at Baikkatta check post at 10.30 p.m. PW6 is the then Sales Tax Inspector in charge on that date and he had deposed fully in terms of the deposition of PW1. According to PW6, the accused took a lever from their car and hit PW1 7 Crl.A.No.912 of 2011 on his head and that PW6 had interfered and separated PW1 from the attack and after the incident, it was PW6 who took PW1 to Manjeshwar check post and from there to the hospital. During the cross examination, the defence had succeeded in getting an answer from PW6 that he has not produced the attendance register. But he had deposed before the court that the attendance register was examined by the Investigating Officer and the same was verified. PW7 is the brother of A2 who is the owner of the vehicle in question. PW8 is an attestor to Ext.P5 seizure, by which the vehicle owned by PW7 and used by the accused were seized by the police. PW9 is the Head Constable attached to the Manjeshwar police station who recorded Ext.P1 FI statement of PW1 at about 3.30 p.m. on 7.9.2010. It was PW9 who registered Ext.P6 FIR at 5.15 p.m. on 7.9.2010. The further investigation was undertaken by PW10, the then Sub Inspector of Manjeshwar police station, during which he prepared Ext.P2 scene mahazar, Ext.P7 property list and Ext.P8 report giving the correct address of the accused to 8 Crl.A.No.912 of 2011 the court and eventually he filed a final report on completing the investigation. These are the evidences considered by the court below in support of its findings and convicting the appellant, which findings and conviction are challenged in this appeal. 4. The appeal is defended by Adv.Smt.Sajitha S.Dharan who is appointed as the State Brief and thus I have heard Smt.Sajitha S.Dharan learned counsel appearing for the appellant and Smt.Lowsy A., learned Public Prosecutor for the State. 5. The learned counsel for the appellant vehemently submitted that there is inordinate delay in registering the FIR and reaching the same in the court. According to the learned counsel, the prosecution miserably failed to prove the identity of the accused. In support of the above contention it is pointed out that, the prosecution has not mentioned the names of the accused in the FIR and even PW1 has not mentioned the name of the accused to the doctor-PW5. According to the learned counsel, there is no 9 Crl.A.No.912 of 2011 evidence to show that the injury allegedly sustained by PW1 was at the instance of the accused and especially when PW5-the doctor has stated that the injury can sustain due to a fall on the ground. The last and the important point raised by the learned counsel for the appellant is to the effect that the prosecution has miserably failed to prove that PW1 has sustained injury while he was on official duty and therefore in the absence of any positive evidence that PW1 sustained injury while discharging official duty, the findings of the court below and the conviction recorded against the appellant under Section 332 of IPC are liable to be set aside. 6. On the other hand, the learned Public Prosecutor submitted that the evidence of PW1, the injured, is intact and his evidence is supported by the medical evidence consists of Ext.P3 wound certificate and deposition of PW5. The evidence of PW1 is further corroborated by independent witness PW6. The learned Public Prosecutor has pointed out that the incident was taken place at 9.30 10 Crl.A.No.912 of 2011 p.m. on 6.9.2007 and thereafter the injured was admitted in the hospital, from where the FI statement was recorded and consequently the FIR was registered at 5.15 p.m. Thus, it is also pointed out by the learned Public Prosecutor that the FIR reached the court on 10.9.2007, on the next working day after the registration of the FIR. Thus according to the learned Public Prosecutor, there is no delay at all. It is the submission of the learned Public Prosecutor that the evidence of Pws.1 and 6 positively prove that PW1 sustained injury while he was discharging his official duty. Therefore, even if the attendance register is not produced, it will not affect the prosecution case. Thus, according to the learned Public Prosecutor no interference is warranted. 7. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor. I have perused the judgment of the trial court and scrutinised the evidence and materials on record. 8. In the light of the rival contentions advanced by the counsel for the appellant and the learned Public Prosecutor 11 Crl.A.No.912 of 2011 and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding that the accused/appellant has committed the offence under Section 332 of IPC. I have already referred the evidence and the materials on record. When PW1, the injured, was examined, he had deposed strictly in accordance with the prosecution allegation. He had deposed that the appellant inflicted injury, since there was some delay in opening the barricade. He had also identified the accused and the material objects. His deposition is found corroborated with Ext.P1 FI statement, which is a contemporary document recorded by PW9. There is no difference or contradiction between the deposition of PW1 and the contents of Ext.P1 FI statement. The above evidence of PW1 is fully corroborated through the evidence of PW6, the then Sales Tax Officer in charge. It is also relevant to note that the prosecution has no case that PW1 has got a prior acquaintance with the accused. If that be so, the non-mentioning of the name of the accused 12 Crl.A.No.912 of 2011 before PW5, while recording the contents in Ext.P3, according to me, has no consequence at all. Thus though Pws.2 and 3 turned hostile, the evidence of Pws.1, 5 and 6 and the documentary evidence such as Exts.P1 and P6 positively proves the allegation against the appellant/ accused. Though Pws.1, 5 and 6 were subjected to lengthy cross examination, nothing brought on record to discredit their version. Ofcourse, when PW6 was examined, the defence has succeeded in bringing out a contradiction which is marked as Ext.D2. But Ext.D2 has no legal consequence so as to discard the evidence of PW6. So the entire facts attributed by the prosecution against the appellant stand proved and supported by the ocular as well as the official witnesses and specifically the evidence of the injured who is the defacto complainant. 9. Another important point raised by the counsel for the appellant is that the prosecution has failed to prove that PW1 sustained injury while he was discharging official duty. The above contention is advanced on the basis of a fact that, 13 Crl.A.No.912 of 2011 PW6 the then Sales Tax Officer failed to produce the attendance register to show that PW1 was on duty on the date of the incident. I am unable to sustain the above contention. PW1 the injured himself has stated that, the incident was taken place while he was discharging official duty and he had sustained injury at the hands of the accused. When PW6 was examined, he had deposed that he had seen that the accused inflicted injury on PW1 and it was PW6 who rescued PW1 from the further attack of the accused. The evidence of Pws.1 and 6 in this respect remained intact and there is no contradiction or infirmities. PW6 has also deposed before the court that, on the next date of the incident, the police came and verified the attendance register and they convinced that PW1 was on duty on the date of the incident. The evidence of PW5 coupled with the documentary evidence Ext.P3 would show that, PW1 sustained injury on 6.9.2007 at the time as alleged by the prosecution. The above facts is further corroborated as per Ext.P2 scene mahazar and supported 14 Crl.A.No.912 of 2011 by the evidence of PW4. PW10, the Investigating Officer, prepared Ext.P2 scene mahazar on 7.9.2007 and M.Os.1 and 2 material objects were collected by PW10 from the spot as per Ext.P2 scene mahazar. Therefore, according to me, the prosecution has succeeded in proving that PW1 sustained injuries while he was discharging official duties at the instance of the accused. 10. In the light of the above facts and circumstances and the evidence and materials referred above, I am of the view that, the learned Judge of the trial court is fully justified in his findings and convicting the appellant/accused for the offence punishable under Second 332 of IPC. 11. The learned counsel for the appellant submitted that the sentence awarded against the appellant is exorbitant and therefore a lenient view may be taken. Having regard to the facts and circumstances involved in the case, it is my definite view that, considering the seriousness of the crime and the approach of the accused, the appellant does not deserve any leniency. It is a case 15 Crl.A.No.912 of 2011 where PW1, who is a peon, when he was attempting to open the barricade, the accused attacked him for the reason that there was some delay in opening the barricade. Such an approach cannot be tolerated and therefore no interference is warranted with the sentence. In the result, I find no merit in the appeal and accordingly, confirming the conviction and sentence imposed against the appellant, this appeal is dismissed. V.K.MOHANAN, Judge ami/