IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 CRL.A.No. 593 of 2010() ----------------------- SC.78/2008 of SPL. COURT (NDPS ACT CASES), THODUPUZHA CP.77/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... APPELLANT(S): -------------- ARUNAN,S/O.KUNJAN, C.NO.7781,CENTRAL PRISON,VIYYUR, THRISSUR. BY ADV. SMT.K.P.SANTHI(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY S.I. OF POLICE,VELLATHOOVAL (CRIME NO.227/07)., REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2011, THE COURT ON 06/01/2011 DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 593 of 2010 ----------------------------------------------- Dated this 6th day of January, 2011. JUDGMENT This appeal arises from the conviction and sentence passed against the appellant under Section 294(b) IPC to undergo rigorous imprisonment for 2 months, to undergo rigorous imprisonment for 1 year for offence under Section 332 IPC and rigorous imprisonment for 3 months for offence under Section 308 IPC. 2. According to prosecution, the accused criminally trespassed into the office of Krishi Bhavan and armed with knife (MO7) having made preparation to commit offences, abused PW7 Agricultural Assistant in obscene words in public and when PW8, who is another Agricultural Assistant, rushed to the scene, he was stabbed by the accused on several parts of the body. PW9, who was standing in the bus stop came running on hearing the cries and took away the knife from the hands of the accused. PW8 was taken to the hospital. F.I.R. was lodged by PW7 and, on investigation, charge-sheet [Crl.A.No.593/2010] 2 was laid against accused for offences under Sections 452, 294(b), 308 and 332 IPC. 3. To prove the prosecution case, PW1 to PW9 were examined and Exts.P1 to P9 and MOs. 1 and 7 were marked on the said of the prosecution. On analysis of the evidence on record, the trial court found that the accused committed the various offences, as revealed from the evidence of the eye- witnesses. It was found that the injury sustained by PW8 was sufficient to cause death if timely treatment was not given. 4. The accused was undefended and Adv. Smt. K.P. Santhi was appointed as State Brief. Heard both sides. Perused the records. Learned counsel for appellant argued that offence under Section 332 IPC is not attracted, since nobody has a case that any of the public servant was prevented from discharging any official duty or that he was obstructed from discharging the official duty. It is also argued that offence under Section 308 IPC is not attracted, since there is no evidence to show that injury sustained by the injured are sufficient in the ordinary course of nature to cause death. [Crl.A.No.593/2010] 3 5. Learned Public Prosecutor argued that there is cogent evidence to show that the injury was aimed at the neck and evidence will reveal that the public servants could not discharge their duties because of the incident. Hence, offence under Section 332 and 308 IPC are attracted in this case. 6. On going though the evidence adduced in this case, particularly, the evidence of PWs 7 to 9, it is clear that an incident as alleged by the prosecution took place. The accused abused PW7 in obscene language in a public place and also stabbed PW8 with MO7 on several parts of the body. PW9 had snatched the knife from the hands of the accused, who was found standing at the scene with the knife. The evidence of PW7 to 9 are consistent with the prosecution case. Their evidence is not discredited by cross-examination. Their evidence is also supported by medical evidence give by PW6. The trial court rightly relied upon their evidence to hold that the occurrence is proved. 7. However, a particular fact strikes the notice of this Court. The accused pleaded, while questioned under Section 313 Cr.P.C. that he was having some problems in the brain [Crl.A.No.593/2010] 4 and he was treated at different hospitals since 1989 onwards (The incident happened on 29.9.2007 and he was treated in Medical College Hospital, Kottayam, Mental Hospital, Painkulam, Medical Mission Hospital, Kolencherry and also at Muvattupuzha). The accused was defended by State Brief during trial, since he was financially incapable to appoint a private counsel. The accused could not produce any document or evidence to establish his physical condition. 8. However, it is relevant to note that the prosecution has no case that the accused had any motive for commission of the offences. Neither PW7 nor PW8 has a case that accused had any enmity towards either PW7 or PW8 to commit the acts, in the manner alleged by the prosecution. A reading of their evidence will show that there was no reason for the accused to act in the manner as alleged by the prosecution. As per the evidence, he had gone to the Agricultural officer, on getting notice from the office and he was to be given a DD. No controversy occurred on his reaching the office. 9. There is nothing in evidence to reveal that he picked up any quarrel with any of the officials or that they refused [Crl.A.No.593/2010] 5 to act in accordance with any of the requests made by him. In short, there was no circumstance for the accused to act in the manner alleged by the prosecution and to commit the various offences. This is a case where the prosecution has not proved many motive to the accused to commit an offence. In such circumstances, the statement given by accused that he was under treatment for problems of brain is relevant. 10. However, the fact remains that the accused failed to establish his entitlement for the benefit under Section 84 of IPC. It cannot also be said that the accused had no intention to inflict injury by using a weapon like MO7, since he had caused injury to PW8 and caused injury to PW7. Yet, the motive is absent in this case. Motive and intention are different. In the above peculiar circumstances, interference is called for in the question of sentence. As per the letter from Superintendent, Central jail dated 18.09.2010, appellant was in jail in this case for more than 1 year and 8 months. The exact period is not stated in the letter. [Crl.A.No.593/2010] 6 11. It cannot be said that the offence under Section 332 is not attracted in this case. A reading of Section 332 IPC makes it clear that the said offence will be made out, if any person voluntarily causes hurt to a public servant in discharge of his duty, as public servant. It is not necessary to establish that he had intention to prevent or deter public servant from discharging his duty. Mere voluntarily causing hurt to a public servant in discharge of his duty as public servant is sufficient to attract offence under Section 332 IPC. 12. However, as per the medical evidence and evidence of the ocular witnesses offence under Section 308 IPC does not appear to be made out. Injured sustained 3 incised wounds. One is on the left side of his cheek. The other two injuries are on the left arm and left palm. No vital organs are affected by the injuries. The doctor has no case that those injuries are fatal in nature or that those are sufficient in the ordinary course of nature to cause death. It can only be said that the accused voluntarily caused hurt by means of a dangerous weapon and, hence, offence attracted will be offence under Section 324 IPC and under [Crl.A.No.593/2010] 7 Section 308 IPC. Thus, I find that prosecution established that the accused committed offences under Sections 294(b), 332 IPC and 324 IPC. In the result, the following order is passed: 1) Conviction passed against appellant under Section 294(b) and 332 IPC are confirmed. 2) Appellant is found guilty of offence under Section 324 IPC instead of offence under Section 308 IPC. 3) The sentences passed against the appellant under Section 294(b) IPC and 332 IPC are confirmed. 4) The appellant is sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for two months for offence under Section 324 IPC. The sentences shall run concurrently. Set off is also allowed under Section 428 IPC. 5) If appellant has served sentence, he shall be set at liberty forthwith. 6) Registry shall issue memo to that effect. This appeal is partly allowed. SD/- K. HEMA, JUDGE. Krs. [Crl.A.No.593/2010] 8 K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 593 of 2010 ----------------------------------------------- Dated this 6th day of January, 2011. JUDGMENT