Kerala High Court
Kumar @ Kelan Kumar vs State Of Kerala on 12 August, 2016
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY,THE 12TH DAY OF AUGUST 2016/21ST SRAVANA, 1938
CRL.A.No. 125 of 2009 (A)
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SC.NO. 6/2006 OF SPECIAL JUDGE FOR TRIAL U/S. SC/ST ACT CASES
(SESSIONS COURT), THIRUVANANTHAPURAM
CP.NO. 74/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II,
THIRUVANANTHAPURAM
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APPELLANT/A1:
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KUMAR @ KELAN KUMAR,S/O. APPU,
PUTHIVAL MANAKATTIL VEEDU,
T.C. 81/1303, KERALAMKUZHY,ATTIPRA VILLAGE,
THIRUVANANTHAPURAM.
BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR
SRI.SHAJIN S.HAMEED
SRI.G.VENUGOPAL
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY THE ASSISTANT POLICE COMMISSIONER,
SHANGHUMUGHAM, SUB DIVISION.
BY PUBLIC PROSECUTOR SMT. P.MAYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 12-08-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
B. KEMAL PASHA, J.
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Crl. Appeal No. 125 of 2009
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Dated this the 12th day of August, 2016
J U D G M E N T
The appellant is the first accused in S.C.No.6/06 of the Sessions Court/Special Court for trial of cases under the SC/ST Act Cases, Thiruvananthapuram, who stands convicted under Sections 143, 147, 148, 324, 332 and 307 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years and to pay a fine of 10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 307 read with Section 149 IPC and sentenced to various terms of imprisonments for the other offences.
2. On 06.04.2000 at about 2.45 p.m. PW1, injured who was the Sub Inspector of Police, Thumba Police Crl. Appeal No. 125 of 2009 -: 2 :- Station, while he was at his official quarters for taking lunch, allegedly received an information that a tumult was going on between two groups of people armed with weapons at a place called Meda Nada. Immediately, he rushed to the police station by the official police jeep and took five policemen along with him to the said scene. PW3 and PW4 were among the said policemen. When they reached the place, they could see around 35 persons standing gathered, armed with weapons like sword, chopper, hatchet, stone, crackers etc. under the leadership of A1, Kelan Kumar, Kadukka Sasi, Super Babu, and Santhosh @ Kottar Kuttan in an unruly manner.
3. On seeing the unruly mob, PW1, who was driving the police jeep, stopped the police jeep. Immediately, the unruly mob rushed to the police jeep by uttering the caste name of PW1, who is a member of a scheduled caste community. A1 stamped on the right shoulder of PW1 and punched forcibly on his nose with a punching block, by Crl. Appeal No. 125 of 2009 -: 3 :- uttering that he would not be left alive. Thereafter, A1 repeatedly hit on his face with the punching block. The person named Kadukka Sasi attempted to inflict a cut aimed at the neck of PW1 with the hatchet. Immediately, PW1 started the police jeep and moved forward. At that time, the persons named Super Babu and Kottar Kuttan pelt and exploded crackers in front of the police jeep. PW1 and the other policemen escaped from the spot. PW1 went to the Medical College, Thiruvananthapuram, where he was admitted as inpatient. PW6 Assistant Professor, ENT Department, Medical College, Thiruvananthapuram, examined PW1 at 3.20 p.m. on 6.4.2001 and prepared Ext.P10 wound certificate.
4. On the basis of Ext.P1 First Information Statement furnished by PW1, CW27 head constable registered Crime No.35/01 of the Thumba Police Station for the offences punishable under Sections 143, 147, 148, 120
(b), 307 and 332 read with Section 149 IPC and Section 3 Crl. Appeal No. 125 of 2009 -: 4 :- (1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (for short 'SC/ST Act') and Sections 3 and 4 of the Explosive Substances Act, 1908 through Ext.P16 FIR. PW14 Assistant Commissioner of Police, Sanghumugham conducted the investigation and filed the final report incorporating the offence under Section 326 IPC also, along with the aforesaid offences against 25 persons arraigned as A1 to A25.
5. In S.C.No.6/2006, four accused persons have faced the trial. The appellant is originally A1. A2 in the case is originally A5, who was the sole accused in S.C.No.1135/2006. A3 was originally A25, who was the sole accused in S.C.No.905/2007 and A4 was originally A6 who was the sole accused in S.C.No.1628/2007. The committal of the case against these accused were on different occasions and consequently different sessions cases were registered. S.C.Nos.1135/2006, 905/2007 and 1628/2007 were clubbed together with S.C.No.6/2006. Crl. Appeal No. 125 of 2009 -: 5 :-
6. On the side of the prosecution PWs.1 to 14 were examined, Exts.P1 to P33 were marked and MOs.1 to 9 were identified. On the side of the accused, Exts.D1 and D2 and Exts.X1 series and X2 series were marked. The court below acquitted A2 to A4 in the case and found the appellant guilty of the offences punishable under Sections 143, 147, 148, 324, 332 and 307 read with Section 149 IPC and sentenced him as aforesaid. The evidence available in the case based on which the court below convicted the appellant is the evidence of PW1, PW3 and PW4, along with the evidence of PW6, and also the contents of Ext.P1.
7. Heard the learned counsel for the appellant and the learned Public Prosecutor.
8. The learned counsel for the appellant has argued that there is no sufficient evidence to convict the appellant for the offences for which he has been convicted by the court below. The learned counsel has also pointed out that the only evidence, in fact, available in the matter is the Crl. Appeal No. 125 of 2009 -: 6 :- evidence of PW1, who is only a partisan witness who had nurtured enmity towards the appellant even prior to the incident. It has also been argued that on account of his enmity, PW1 has dragged the appellant unnecessarily into the matter. It has been further argued that the court below has committed a grave error in convicting the accused for the offence under Section 307 IPC and Sections 332 and 324 IPC with the aid of Section 149 IPC, when the other accused who faced the trial were acquitted. Further, it has been argued that there is no evidence to prove a specific identifiable unlawful assembly and therefore, the offences under Sections 143, 147 and 148 IPC are also uncalled for.
9. PW1 has furnished Ext.P1 first information statement in which he has clearly narrated the incident. In Ext.P1, he has narrated the names of 4 accused persons and the first one among them is none other than the appellant. In Ext.P1, PW1 has stated that he was stamped on his right shoulder by the appellant and he was hit on his Crl. Appeal No. 125 of 2009 -: 7 :- nose, different portions of his head and different portions of his face, repeatedly by the appellant with a punching block. With regard to the overt acts of other persons, Ext.P1 does not give any specific narration. PW1 has deposed before the court below in detail as to what had happened. His deposition before the court below is almost in conformity with his versions in Ext.P1 regarding the incident. True that, a contradiction in his statement under Section 161 Cr.P.C. was marked as Ext.D1. In the nature of the evidence adduced by PW1 and his versions in Ext.P1, this Court is of the view that the aforesaid contradiction cannot be treated as material.
10. Ext.P10 is the wound certificate prepared by PW6. As per the evidence of PW6 who prepared Ext.P10, PW1 was examined by him at 3.30 p.m. on 6.4.2001. In Ext.P1 the following injuries were noted: (1) Fracture of nasal bone (2) Haematoma left cheek just below left eye. and (3) conjunctivital hemorrhage left eye. Ext.P10 further Crl. Appeal No. 125 of 2009 -: 8 :- shows that the X-ray of nasal bone shows no fracture. PW6 has also clearly deposed in cross-examination that the X-ray showed no fracture of the nasal bone. According to PW1, he got discharged from the hospital on the next day itself. On going through Ext.P10 and the evidence of PW6, it has come out that PW1 has not suffered any grievous hurt. At the same time, it is a fact that he has sustained hurt. Moreover, he was discharged from the hospital on the next day itself. Therefore, there is absolutely nothing to invite an offence under Section 326 IPC in the matter.
11. The court below has taken the view that in order to invite an offence under Section 307 IPC, the intention on the part of the accused to cause the death of the victim is sufficient. It seems that the court below has committed a grave error in finding that the intention alone can bring out an offence under Section 307 IPC. In fact, in order to attract the offence under Section 307 IPC, almost all the ingredients of the offence of murder as contemplated under Crl. Appeal No. 125 of 2009 -: 9 :- Section 300 IPC, except the fact that there is no death, have to be established. As per Section 307 IPC whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, is stated to commit an offence under Section 307 IPC. Therefore, except the factum of death, all the ingredients to invite an offence under Section 302 IPC are required to be established in order to invite an offence under Section 307 IPC. The consequence of finding an offence under Section 307 IPC is very serious, as far as the accused is concerned. When such severe consequences are there, the legislature has, in its wisdom, defined the offence under Section 307 IPC in the aforesaid manner.
12. Matters being so, in order to bring out the offence under Section 307 IPC in this case, the prosecution ought to have proved that by committing the aforesaid acts proved against the appellant, he would have been guilty of murder, had the death of PW1 been caused. Without establishing Crl. Appeal No. 125 of 2009 -: 10 :- the said aspects, an offence under Section 307 IPC cannot be attracted in this case. On going through the contents of Ext.P10 and the evidence of PW6, and the further fact that PW1 had undergone treatment as inpatient just for one day, it could not have been stated that the appellant had committed an offence under Section 307 IPC by inflicting the aforesaid injuries on PW1. Therefore, the conviction and sentence passed by the court below on the appellant for the offence under Section 307 IPC are liable to be set aside.
13. Regarding the offence under Section 332 IPC, the learned counsel for the appellant has argued that it is altogether at a different footing than the offence under Section 324 IPC. Of course, in order to bring out an offence under Section 332 IPC, there must be two ingredients; the first one is that the accused has to voluntarily cause hurt and the second one is that, that should be done with the intention of deterring a public servant from discharging his official duty. According to the learned counsel for the Crl. Appeal No. 125 of 2009 -: 11 :- appellant, here, in this particular case, apart from an act committed in a hurry and as a momentarily action, there is nothing to show that there was intention on the part of the appellant to deter PW1 from discharging his official duties. This Court cannot agree with the said submission because of the fact that PW1 was in uniform and he was driving the police jeep along with other policemen in uniform. He had rushed to the spot on getting information about the unruly mob, armed with deadly weapons, waiting there for a quarrel, as two groups. In such a case, when PW1 had gone to the spot and when he was attacked, it is as good as voluntarily causing hurt on PW1, who was a public servant with a view to deterring him from discharging his official duties. Therefore, an offence under Section 332 IPC is clearly attracted in this case.
14. When hurt has been voluntarily caused on PW1 by the appellant, by using a dangerous weapon, it invites an offence under Section 324 IPC also.
Crl. Appeal No. 125 of 2009 -: 12 :-
15. Regarding the other offences, like the offence under Sections 143, 147 and 148 IPC, this Court is of the view that the evidence adduced by the prosecution is not sufficient to conclude that there was a specific identifiable unlawful assembly. True that, some of the accused are still absconding and they have not faced the trial. Three other persons, who faced the trial, were acquitted by the court below. The appellant alone stands convicted. Even, the other absconding accused were not identified through the evidence adduced by the prosecution in this case. In such a context, it cannot be held that there was an unlawful assembly by identifiable persons. When the members of such an unlawful assembly were not identifiable, it is not at all safe to convict the accused for the offence punishable under Sections 143, 147 and 148 IPC. It seems that the court below has convicted the accused for the offences punishable under Sections 332 and 307, with the aid of Section 149 IPC. When there is no identifiable unlawful Crl. Appeal No. 125 of 2009 -: 13 :- assembly, the court below ought not to have taken the aid of Section 149 IPC to convict the accused. At the same time, when individual acts have been proved from the part of the appellant, the court below could have convicted the appellant for the offences punishable under Sections 324 and 332 IPC.
17. From all the above, this Court is of the view that the conviction and sentence passed by the court below on the appellant for the offences punishable under Sections 143, 147, 148 and 307 IPC are liable to be set aside. The conviction and sentence passed by the court below on the appellant for the offences punishable under Sections 332 and 324 IPC are maintained. It is made clear that the substantive sentence of imprisonments imposed on the appellant for the offences punishable under Sections 324 and 332 IPC shall run concurrently. The appellant is entitled to set off, of the period of detention already undergone by him in connection with the investigation, inquiry and trial of Crl. Appeal No. 125 of 2009 -: 14 :- this case, under Section 428 Cr.P.C.
In the result, this Criminal Appeal is allowed in part and the conviction and sentence passed by the court below on the appellant for the offences punishable under Sections 143, 147, 148 and 307 IPC are hereby set aside. The conviction and sentence passed by the court below on the appellant for the offences punishable under Section 332 and 324 IPC are maintained. It is made clear that the substantive sentence of imprisonment imposed on the appellant for the offences punishable under Sections 324 and 332 IPC shall run concurrently. The appellant is entitled to set off, of the period of detention already undergone by him in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy // P.S. to Judge.