Kerala High Court
Saju Paul vs State Of Kerala Represented By The ... on 26 March, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY,THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936
CRL.A.No. 784 of 2001 ( )
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SC 215/2000 of SESSIONS COURT,ERNAKULAM
APPELLANT(S)/2ND ACCUSED:
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SAJU PAUL, S/O.PAUL, NEDUMPUATHU VEEDU, EZHIPRAM KARA,
MAZHUVANOOR VILLAGE.
BY ADVS.SRI.T.KURIAKOSE PETER
SRI.ABRAHAM P.GEORGE
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA REPRESENTED BY THE DEPUTY SUPERINTENDENT OF
POLICE, MUVATTUPUZHA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON 26-03-2014,
ALONG WITH CRA. 846/2001, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
A.HARIPRASAD, J.
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Crl.Appeal Nos.784 & 846 of 2001
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Dated this the 26th day of March, 2014.
COMMON JUDGMENT
Appeals filed under Section 374(2) of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. Appellants in both cases were tried by the learned Sessions Judge, Ernakulam for offences under Sections 341, 323, 294(b) and 506(I) read with Section 34 of the Indian Penal Code (for short, "IPC") and also under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "Act"). They are accused 1 and 2 in the case. 3rd accused in the case had been acquitted by the trial court. The learned Sessions Judge convicted the accused under Section 323 IPC and acquitted them of all other offences. Accused were released after due admonition under Section 3 of the Probation of Offenders Act. However, they were directed to pay a sum of `5,000/- as compensation under Section 5 of the Probation of Offenders Act. Feeling aggrieved by the conviction, admonition and imposition of compensation, the accused have come up in separate appeals.
3. Heard the learned counsel for the accused and the learned Public Prosecutor.
Crl.Appeal Nos.784 & 846/2001 2
4. Prosecution case, in short, is thus:
PW3 belongs to pulaya community, a scheduled caste.
Accused 1 and 2 do not belong to a scheduled caste or scheduled tribe. 3rd accused was a member of the scheduled caste. Accused 1 and 2 were lawyers practising at the material time. PW3 engaged the 1st accused to appear for him and his co-accused in some criminal cases. The accused in that case were not satisfied with the conduct of the case by the 1st accused. Due to the alleged breach on the part of the 1st accused, the bail bond of PW3 was cancelled and warrant happened to be issued against him. Irked by this irresponsible action on the part of the 1st accused, PW3 decided to change his lawyer and for that he wanted to get the brief back and a no objection certificate from the 1st accused. It is also come out in evidence that PW3 himself appeared before the court on two-three occasions and got the warrant against him recalled by himself. Later, he engaged, with the permission of the court, PW5, another advocate of the same Bar. It is the case of the accused that 3rd accused, who is the clerk of the 1st accused, on 02.12.1997 informed PW4 to meet the 1st accused. On that date the criminal case, in which PW3 involved, was posted in the court. It is to be noted that the court at that time functioned in the first floor of a rented building. In the ground floor, there were rooms, lawyers' offices were functioning. As instructed by the 3rd accused, at 2.45 p.m. on Crl.Appeal Nos.784 & 846/2001 3 02.12.1997, PWs 3 and 4 went to the office of the 1st accused in the ground floor. Case in Ext.P2 first information statement is that when PW3 entered the office room of the 1st accused, he saw accused 1 and 2 sitting in chairs adjacent to one another. When PWs 3, 4 and others, who accompanied him went into the room of the 1st accused, he asked PW3 to remain there and others to go out. Thereafter, without any provocation, 1st accused caught hold of the neck of PW3 forcefully and pushed him towards the wall. While the 1st accused was throttling PW3, 2nd accused beat him on back. It is the case of PW3 that he suffered excruciating pain on the neck and back of the head on account of the forceful hit on the wall.
He made alarm and PW4 and others standing outside the room also made loudly cried out. On hearing this noise, lot of people converged. At that time, 1st accused released PW3. On hearing the hullabaloo PWs 1 and 8 also came to the place and PWs 3 and 4 were taken to the office of the court. On the next day they went to the Police Station and filed Ext.P2 complaint. After closure of investigation, a charge was filed. It was committed to the Court of Sessions. Learned Sessions Judge examined ten witnesses on the side of the prosecution and two witnesses on the side of the defence. Exts.P1 to P5 and Exts.D1 to D3 were marked.
5. Learned counsel for the accused submitted that the court below went wrong in finding that accused 1 and 2 caused hurt to PW3. Crl.Appeal Nos.784 & 846/2001 4 According to him, the evidence adduced by PWs 3 and 4 are contrary to one another. Further, the material aspects like delay in lodging the first information report, non-examination of independent witnesses, non- revealing of the exact version of the case, etc. are fatal to the prosecution case.
6. PW1 was the Junior Superintendent working in the Judicial First Class Magistrate Court, Kolenchery at the material time. He testified that on 02.12.1997 while he was performing his duty at about 3 p.m., a person came to him and informed that he wanted to make a complaint to the Magistrate. At that time the learned Magistrate was conducting the sitting. Hence PW1 informed him that after the sitting hours, he could make arrangements for meeting the Magistrate. But, he did not wait till that time. PW1, in chief examination, stated that the person did not tell him about any incident. PW1 further deposed that he heard big sound from the ground floor of the building. PW1 further deposed that in the rooms on the ground floor of the building lawyers' offices were functioning. PW1 came down and enquired as to what was the issue there. He found lot of persons standing there. PW1 was not a witness to the incident. He understood that there was a dispute between PW3 and the 1st accused. When cross-examined, PW1 stated that he did not conduct an enquiry as to what had happened in the ground floor. Testimony of PW1, even if Crl.Appeal Nos.784 & 846/2001 5 accepted in its entirety, would only show that his attention was drawn to the ground floor at about 3 p.m. on account of a loud cry. PW2 is the Doctor, who examined PW3 on 03.12.1997 at 7.15 p.m. It is pertinent to note that the incident was on 02.12.1997 at about 2.45 p.m. Learned counsel for the accused submitted that there is more than 24 hours delay in PW3 visiting the Doctor for the alleged assault. Wound certificate issued by PW2 is marked as Ext.P1. PW2 noticed that PW3 had pain and tenderness on both sides and front of neck and also on inter scapular region. Reason for causation of injury mentioned by PW3 to PW2 was throttling by the 1st accused on 02.12.1997 at 2.45 p.m. From Ext.P1, it is seen that both accused 1 and 2 caught hold of his neck. But the defacto complainant when examined as PW3 would testify that the 1st accused caught hold of his neck and the 2nd accused beat him on back.
7. PW3 is the defacto complainant. There is no dispute that PW3 engaged the 1st accused as lawyer to defend him in a criminal case. It is also come out in evidence that PW3 was involved in other criminal cases also. Totality of evidence of PW3 would show that he is a person conversant with the conduct of criminal cases. PW3 is aggrieved by the fact that the 1st accused was not taking any interest in prosecution and his bail bond happened to be cancelled. Therefore, warrant was issued against him by the learned Magistrate. It is come out in evidence that PW3 Crl.Appeal Nos.784 & 846/2001 6 along with others appeared before the court and got themselves released on bail. However, he decided to change the lawyer. Therefore, PW3 demanded a no objection certificate from the 1st accused and also the brief back. It is the case of PW3 that there was reluctance on the part of the 1st accused to give away the brief. Therefore, PW3 complained to the Magistrate and he was allowed to engage another lawyer. Thereafter, he engaged PW5. It is also the case of PW3 that he had sent a complaint against the 1st accused to the Bar Council narrating his professional misconduct. PW3 would contend that the 1st accused was enmical towards him on account of sending of the complaint to the Bar Council. It is his version that on 02.12.1997 his case was posted before the court. 3rd accused, who is the clerk of 1st accused, informed PW3 that the 1st accused wanted to meet him. PW3 informed this fact to PW5. PW5 advised PW3 to go and meet the 1st accused. Therefore, PWs 3, 4 and others went to the room of the 1st accused in the ground floor of the court building. According to PW3, he alone was allowed to remain in the room and the 1st accused asked others to go out. Suddenly the 1st accused caught him by neck and pushed to the wall. At that time, the 2nd accused, who was sitting, assaulted on his back. PW3 was subjected to cross- examination. Specific defence case is that there was no incident as contended by PW3. In fact, the incident happened in a different manner. Crl.Appeal Nos.784 & 846/2001 7 According to the defence case, PW3 and others were shouting from the portico of the court building and they were abusing the 1st accused. At that time, 3rd accused stood in front of the office room of the 1st accused and prevented entry of PWs 3, 4 and others into the room. There was a push and pull and altercation happened in front of the room. According to the defence version, no incident happened inside the room of the 1st accused as alleged. The further case of the defence is that 2nd accused was not present in the room as his office functioned in the next room. Cross- examination on PW3 proceeded in the above lines. Even though, he did not concede this defence case, if we consider the evidence of PWs 3 and 4, it can be seen that they differ on material terms. PW3 has stated that in spite of receiving injuries on account of throttling by the 1st accused, he did not go to a hospital because of fear of further attack at the hands of the accused. This version is not completely believable for the reason that PW3 is not only an autorickshaw driver by profession, but also capable of taking care of himself. It is also come out in evidence that in the year 1995 he had filed a complaint under the Act against another person. Further, he himself in evidence admitted that he was accused in two cases and was a complainant in another case. Therefore, such a person cannot be presumed to have avoided going to hospital, if he had received injuries. Defence has another case that the whole issue was instigated by PW5, Crl.Appeal Nos.784 & 846/2001 8 another lawyer of the same Bar. According to the defence version spoken through DWs 1 and 2 and also in the examination of the 1st accused under 313 Cr.P.C., it is brought out that all the steps taken by PW3 were on the advise of PW5. However, PW5 would deny this fact. According to her, she did not know the incident on the date of occurrence. She came to know of the incident only on the next day. It appears from the evidence that the possibility of PW3 taking legal advise in this matter cannot be ruled out.
8. PW4 is the brother of PW3. He also stated the same version regarding the incident in the chief examination. It is seen that PWs 3 and 4 have embellished the case mentioned in Ext.P2 first information statement at the time of evidence. When PW4 was cross-examined, contradictions were marked to show that his versions of the incident did not tally with that of PW3. Even though PWs 1 and 8 would depose that they came to the ground floor of the building on hearing the noise, PW4 would say that he did not see either PW1 or PW8 in front of the room of the 1st accused. It is the version of PWs 3 and 4 that on the next day of the incident, they prepared a complaint in writing and it was handed over to the Station Writer of Puthencruz Police Station. However, that complaint did not see the light of the day. The case was registered on account of Ext.P2 first information statement given at 7.15 p.m. on the next day of the incident. Learned defence counsel would argue that the written complaint submitted by PW3 Crl.Appeal Nos.784 & 846/2001 9 before the Police is the first version of the incident. It was intentionally suppressed as it could have been inconvenient for the prosecution. Learned Sessions Judge has considered this aspect in detail in the judgment. Learned trial Judge had in fact seen the complaint in the case diary produced at the time of examination of PW10. However, learned Judge rightly observed that the court was not entitled to look into that document as it was only a previous statement in the case diary. But the fact that the Investigating Officer did not attach any importance to the written complaint is a debility in the prosecution case.
9. Learned counsel for the accused contended that the delay in filing the first information report has not been properly explained. It is evident from Ext.P2 that a cognizable offence was alleged therein against the accused. It is also come out in evidence that PW8, a Police Constable deputed for court duty, was present in the court at the material time and he would depose that he came to the ground floor of the building immediately after the incident on hearing the altercation. PW8 would depose that he has not reported the matter either to the court or to his superiors. The offences under the Act are cognizable. It was the duty of Police Officers to register a case when such an incident had happened. Further, the complaint allegedly given by PW3 in writing to the Police Officer was also not registered. It cannot be lightly assumed that a person like PW3, who Crl.Appeal Nos.784 & 846/2001 10 was having basic idea about handling criminal cases, could have omitted to file a first information statement with this much amount of delay. Learned counsel for the accused would contend that this is a clear indication of confabulation between PW15 on one hand and PWs 3 and 4 on the other hand. This version of the defence is a probable one.
10. In regard to the nature of injury also, there are exaggerations made at the time of evidence. Ext.P1 wound certificate shows only minor injury as observed by the learned trial Judge. In the absence of any external injury, the Doctor treated PW3 only for pain. PW2 deposed that sensation of pain is a subjective feeling. There is no method to measure pain except to assess the attending circumstances. Had PW3 suffered excruciating pain, he would have gone to the hospital either on the same day or atleast on next day morning. Records show that he had gone to the hospital only on 03.12.1997 at 7.15 p.m.. Therefore, the entire circumstances put together will indicate that PW3 must have created documents either on getting advise or on his own, after taking sufficient time for reflection.
11. Defence has a further case that local Sub Inspector of Police was enmical to the 1st accused. It is brought out in evidence that one person by name Thankappan had filed a complaint against the local Sub Inspector of Police availing the professional service of the 1st accused. 1st Crl.Appeal Nos.784 & 846/2001 11 accused would contend that the Sub Inspector pressurised him to ask the complainant to withdraw the complaint for which the 1st accused was not a readily consenting party. On that reason, the Sub Inspector of Police was enmical towards him, is the version of the 1st accused. It is, therefore, argued that the case was foisted on the accused persons on account of the concerted effort between the local Sub Inspector of Police and PW3.
12. Learned counsel appearing for the accused contended that no independent witness was examined. It is revealed from the evidence of PWs 1, 3, 4 and 8 that on hearing big noise of altercation, lot of persons assembled in front of the room of the 1st accused. If we go by the case of defence, then also it can be seen that so many persons must have been assembled in the portico of the court building. Whatever that be, since the incident happened in the ground floor of a court building and that too on a working day, it is evident that there would have been quite a large number of persons at the time of occurrence. Ext.P4 scene plan and Ext.P5 scene mahazar would show that row of advocates' offices are located on the ground floor of the court building. Investigating Officer has not questioned any of the lawyers having offices in the ground floor of the building. Not only that, apart from PWs 3 and 4, no other independent witness had been examined before the trial court. PW4, brother of PW3, is interested in the welfare of PW3 and also that he himself was an accused in the other case. Crl.Appeal Nos.784 & 846/2001 12 Therefore, non-examination of independent witnesses is also a fact affecting the credibility of the prosecution case.
13. Learned Sessions Judge disbelieved the evidence of DWs 1 and 2 for the reason that they did not volunteer to give evidence before the Investigating Officer. Answering this point, learned counsel for the accused submitted that even if a person goes to the Investigating Officer to give a statement, there is no law compelling the Investigating Officer to record the statement of such volunteering witnesses. DWs 1 and 2 have a definite case that they met the Superintendent of Police after the incident and discussed the matter with him. It is their definite version that they were unaware of the investigation of the case and the Investigating Officer never approached them in connection with investigation. DWs 1 and 2 are practising lawyers of the same Bar. Apparently there is no reason for DWs 1 and 2 to insinuate PW5 without any basis or to favour accused 1 and 2. Testimony of DWs 1 and 2 probabilise the defence case that the incident might have happened outside the room and in the portico. Therefore, totality of evidence in this case would show that the defence case is more probable a version. I do not find any justification for the conviction of the accused under Section 323 IPC as it is not proved beyond doubt that the incident had happened inside the office room of the 1st accused as alleged by the prosecution. Therefore, I find the conviction of the accused are not Crl.Appeal Nos.784 & 846/2001 13 sustainable.
In the result, the appeals are allowed. Conviction of the appellants/accused under Section 323 IPC in S.C.No.215 of 2000 on the file of Sessions Court, Ernakulam are hereby set aside. They shall be set free forthwith, if not wanted in any other case. Their bail bonds shall stand cancelled.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks Crl.Appeal Nos.784 & 846/2001 14 A.HARIPRASAD, J.
Crl.Appeal Nos.784 of 2001
& 846 of 2001 COMMON JUDGMENT 26th March, 2014.