Kerala High Court
Haridas @ Das vs State Of Kerala on 30 July, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 30TH DAY OF JULY 2018 / 8TH SRAVANA, 1940
Crl.Rev.Pet.No. 309 of 2007
AGAINST THE JUDGMENT IN CRA 356/2002 of SESSIONS
COURT,THIRUVANANTHAPURAM
AGAINST THE JUDGMENT IN SC 277/1997 of ASST. SESSIONS COURT,
ATTINGAL
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
HARIDAS @ DAS,
S/O.VIDYADHARAN, DILEEP MANDIRAM,
THOTTAKKADU DESOM,
KARAVARAM VILLAGE.
BY ADV.SRI.N.ANILKUMAR
RESPONDENT(S)/RESPONDENT/COMPLAINANT::
STATE OF KERALA, BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.C.K.PRASAD
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
30-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.UBAID, J.
~~~~~~~~~~
Crl.R.P No.309 of 2007
~~~~~~~~~~~
Dated this the 30th July, 2018
ORDER
The revision petitioner herein challenges the conviction and sentence against him under Sections 307 and 332 I.P.C in S.C 277/1997 of the Court of Session, Thiruvananthapuram. He faced prosecution before the learned Assistant Sessions Judge, Attingal on the allegation that at about 8 p.m on 12.2.1993, he drove his car No.KL- 01C -7207 in high speed at the Kallambalam junction and drove it towards the Police party led by the Sub Inspector of Police, controlling traffic there, in such a way as to hit him down, in an attempt on the life of the Sub Inspector due to some previous enmity, the Sub Inspector tactfully escaped from the said attempt, but in the said transaction, two Police Constables of the Police party sustained simple injuries. The crime was registered suo motu by the Sub Inspector, and the case was investigated by the Circle Inspector of Police, Varkala. After investigation, he submitted final report in court.
2. The accused appeared before the learned trial Crl.R.P No.309 of 2007 2 Judge and pleaded not guilty to the charge framed against him. The prosecution examined 12 witnesses and proved Exts.P1 to P9 documents in the trial court. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C and projected a defence of total denial. He did not adduce any evidence in defence.
3. On an appreciation of the evidence, the trial court found the accused guilty under both the sections. On conviction, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of b95000/- under Section 307 I.P.C, and to undergo simple imprisonment for one year under Section 332 I.P.C.
4. Aggrieved by the judgment of conviction dated 29.7.2002, the accused approached the Court of Session, Thiruvananthapuram with Crl.A 356/2002. In appeal, the learned Sessions Judge confirmed the conviction and sentence and accordingly dismissed the appeal. Now the accused is before this court in revision challenging the legality and propriety of the conviction and sentence.
5. On hearing both sides, and on a perusal of the Crl.R.P No.309 of 2007 3 materials, I find that there is no definite and satisfactory material to sustain the conviction under Section 307 I.P.C in this case. But the offence alleged under Section 332 I.P.C stands very well proved by satisfactory evidence. The learned counsel for the revision petitioner submitted that the appeal was decided in the absence of the appellant by the Court of Session. The judgment of the appellate court shows that notice was issued from the appellate court to the accused, but it was returned with report that his whereabouts are not known. The appellate judgment shows that the appellate court had taken necessary steps to procure the presence of the appellant for hearing, but when he did not care to prosecute the appeal, the appellate court was constrained to decide the appeal on merits. There is nothing to show that any sort of prejudice was caused to the accused. Anyway, the entire evidence is being thoroughly examined and perused by me for deciding the revision. I find no reason to send back the appeal to the appellate court for a decision afresh.
6. Of the 12 witnesses examined in the trial court, Crl.R.P No.309 of 2007 4 PW1 to PW5 are the material witnesses. PW1 is the Sub Inspector on whose life, an attempt was allegedly made by the accused, and PW5 is one of the the Police Constables who sustained injuries in the alleged incident. These two witnesses have given definite and consistent evidence proving the prosecution allegations. PW2 is an autorickshaw driver plying his autorickshaw at the Kallambalam junction. He also very well supported the prosecution. PW3 is another eye-witness examined by the prosecution. First he stated that he had not witnessed the incident, but in the next breath itself, he stated that he had given a statement to the Police that he had seen the accused driving his car in over speed towards the Sub Inspector. Anyway, he was declared hostile by the learned Public Prosecutor, and when cross-examined by him, the witness admitted the statement given to the Police during investigation, that he had seen the accused driving his car in high speed towards the Sub Inspector with the object of making an attempt on his life. PW4 is another independent witness. His evidence is also that he had seen the accused Crl.R.P No.309 of 2007 5 driving his ambassador car in high speed towards the Police party in an attempt on the life of the Sub Inspector, but the Sub Inspector tactfully escaped by jumping off on seeing the car coming in high speed. I find no reason to disbelieve PW2 to PW4 or to reject their evidence. These witnesses have no special reason to help the Police or to give evidence in favour of the Police or to give any false evidence against the accused.
7. PW1 is the Sub Inspector on whose life an attempt was allegedly made by the accused. His evidence is that while he was controlling traffic at the Kallambalam junction, the car driven by the accused came in high speed towards him, but as he jumped off immediately tactfully, he could escape, but the accused again made such attempts. In the said attempt, a Police Constable sustained injuries. He is PW5. He has given evidence on the factual aspects fully supporting PW1 and fully proving the prosecution case.
8. It has come out in evidence that the Police had arrested the accused in another crime, and when produced in court, he had declared openly at the court varandha that Crl.R.P No.309 of 2007 6 he would see that the Sub Inspector who arrested him would be done away with. Anyway, I find no definite material for a conviction under Section 307 I.P.C in the evidence of PW1 to PW5. What is at the best proved is that the accused had driven his car in over speed towards the Police party and in the said process, PW5 and another Police Constable had sustained some simple injuries. Just because the accused drove his car in over-speed towards the Sub Inspector, the court cannot find the offence punishable under Section 307 I.P.C. For such a finding, something more is required in evidence.
9. The Exts.P3 and P4 certificates proved by the Doctor would prove the simple injury sustained by PW5 and the other Police Constable in the alleged incident. The evidence given by the witnesses clearly prove the offence punishable under Section 332 I.P.C. The accused has no explanation or excuse for inflicting injuries on the body of the Police Constables or for driving his car in high speed against the Sub Inspector and the Police party at the road junction while they were controlling traffic there. Evidence Crl.R.P No.309 of 2007 7 proves that PW5 had other Police Constable had been doing their official duty at Kallambalam junction by controlling traffic. In the absence of definite evidence proving the offence under Section 307 I.P.C, the accused is entitled to be acquitted of the said offence, but I find clear material to confirm the conviction under Section 332 I.P.C.
10. Now the question of sentence under Section 332 I.P.C. The incident happened in February, 1993. 25 years have elapsed since the date of incident. Of course, it is true that the accused cannot have any excuse for the atrocious act done by him by using his vehicle and driving it in over speed with the object of causing bodily injury to the members of the Police party. He was at the age of 50 years at the time of the incident. He must be now aged 75 years. The atrocious act of the accused cannot be condoned by the court. The sentence imposed by the trial court under Section 332 I.P.C is simple imprisonment for one year. On a consideration of the various aspects including the long lapse of 25 years, I find that the minimum sentence in view of Section 354 (4) Cr.P.C will be the adequate sentence in Crl.R.P No.309 of 2007 8 this case.
In the result, the revision petition is allowed in part. The revision petitioner (accused) is not found guilty of the offence under Section 307 I.P.C and he is acquitted of the said offence in revision. Accordingly the conviction and sentence against him under the said section in SC 277/1997 of the court below will stand set aside, but the conviction against him under Section 332 I.P.C is confirmed in revision. However, the jail sentence imposed by the trial court under Section 332 I.P.C will stand reduced to simple imprisonment for three months. The revision petitioner will surrender before the trial court, within three weeks from this date to serve out the modified sentence, on failure of which steps shall be taken by the trial court to enforce the modified sentence.
Sd/-
P.UBAID JUDGE ma /True copy/ P.S to Judge