Kerala High Court
Ajayan vs State Of Kerala on 15 October, 2012
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
MONDAY, THE 15TH DAY OF OCTOBER 2012/23RD ASWINA 1934
Crl.Rev.Pet.No. 1738 of 2005
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CRA.82/2003 of ADL.D.C. & MACT,THODUPUZHA
CC.71/1998 of J.M.F.C.,NEDUMKANDOM
REVISION PETITIONER(S)/APPELLANT/ACCUSED::
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AJAYAN, S/O. KOCHERUKKAN,
KINATTUKARAYIL VEEDU, MARUTHUMPETTA BHAGOM
K. CHAPPATHU KARA, ANAVILASAM VILLAGE.
BY ADV. SRI.S.K.MURALEEDHARA KAIMAL
COMPLAINANT(S)/RESPONDENT/COMPLAINANT & PUBLIC PROSECUT:
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STATE OF KERALA,
REPRESENTED BY THE SUB INSPECTOR OF POLICE
VANDANMEDU POLICE STATION, IDUKKI DISTRICT
THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
15-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
S. Siri Jagan, J.
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Crl. R.P. No. 1738 of 2005
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Dated this, the 15th day of October, 2012.
O R D E R
The petitioner is the accused in C.C.No. 71/1998 before the Judicial Magistrate of the First Class, Nedumkandam. He was charge sheeted for offences under Sections 352, 353, 294(b) and 323 of the Indian Penal Code. The prosecution case was as follows:
PW6 was appointed as an advocate commissioner in O.S. No. 258/1997 before the Munsiff's Court, Kattappana. Pursuant to the commission warrant issued by the Munsiff's Court, PW6 inspected the plaint schedule property in the O.S on 23.7.1997 at 11.30 a.m. The plaint schedule property lies on the northern side of Amayar-Cumbummettu public road. While PW6 was inspecting the plaint schedule property, the accused came and uttered obscene words against PW6 and also caught hold of his right thumb and squeezed the same, which resulted in causing pain to PW6. Thereafter, the accused pushed PW6 out of the property. The act of the accused was with intention to deter and prevent PW6 from discharging his official duties as an advocate commissioner in O.S.No. 258/1997 of the Munsiff's Court. Thus, the accused has committed the offences charged against him.
2. The prosecution examined PWs. 1 to 9 and marked Exts.
P1 to P5 documents. The defence did not adduce any evidence. After considering the evidence before the Magistrate, the Magistrate convicted the petitioner for the offences under Sections 353 and 323 of the Indian Penal Code and acquitted Crl. R.P. No. 1738 of 2005 -: 2 :- him under Sections 352 and 294(b) of the Indian Penal Code. The Magistrate sentenced the petitioner to undergo simple imprisonment for four months for the offence under Section 353 and sentenced him to pay fine of Rs. 1000/- for the offence under Section 323 with a default sentence of one month. The petitioner challenged the same in Crl. A. No. 82/2003 before the Additional Sessions Judge, Thodupuzha. The Additional Sessions Judge confirmed the conviction and sentence. The petitioner is challenging the judgments of the courts below.
3. The petitioner raises three contentions. The first is that there is no evidence forthcoming to prove that PW6 was in fact appointed as the advocate commissioner on that particular day. The second is that the prosecution has not proved the place of occurrence. The last is that there is a delay of 20 days in filing the compliant. According to the petitioner, the date of occurrence was on 23.7.1997 and the complaint was filed only on 16.8.1997. The explanation offered by the prosecution for the long delay of 20 days has not been properly explained, is the contention.
4. The learned Public Prosecutor, on the other hand, supports the judgments of the courts below. According to the learned Public Prosecutor, the petitioner, while cross examining the witnesses who supported the prosecution case, did not put any questions challenging the evidence to the effect that PW6 was appointed as an advocate commissioner to inspect the property in question and also Crl. R.P. No. 1738 of 2005 -: 3 :- regarding the place of occurrence as well. PWs 1, 2 and 6 have given evidence to the effect that the incident occurred at the particular place on the particular day. PW6 has given specific evidence that he was appointed as an advocate commissioner on that particular day pursuant to which he only came to the place of occurrence to inspect the property as directed by the Court. These evidence have not been challenged by the petitioner in cross examination without which the petitioner cannot take a contention that the prosecution has not proved that PW6 was appointed as the advocate commissioner and the prosecution has not proved the place of occurrence. Regarding the delay, the learned Public Prosecutor points out that in the judgment of the Magistrate, the Magistrate has accepted the reasons put forward by the prosecution for the delay, which was satisfactorily explained.
5. I have considered the rival contentions in detail.
6. As I have already stated, the contention of the petitioner is that the prosecution has not adduced any evidence to show that PW6 was actually appointed as the advocate commissioner on the particular day. The contention of the petitioner is that according to PW6, the time of occurrence is at 11.30 on 23.7.1997 and there was no time for the advocate commissioner to get warrant and inspect the property by 11.30 on the very same day. The learned counsel for the petitioner submits that unless the prosecution proves that the petitioner was appointed as the Crl. R.P. No. 1738 of 2005 -: 4 :- advocate commissioner, there is no question of invoking Section 353 of the Indian Penal Code, because only if the prosecution proves that PW6 was appointed as the advocate commissioner, he would become a public servant to attract Section 353 of the Indian Penal Code. PW6 has given evidence. In his evidence, he categorically stated that on 23.7.1997, the Munsiff's Court, Kattappana had appointed him as the advocate commissioner to inspect the plaint schedule property in O.S.No. 258/1997. He has specifically stated that he had shown the commission warrant to the petitioner. Not a single question has been asked in cross examination challenging the said categoric evidence adduced by PW6. Of course, it is true that PW6 has not proved any commission warrant as such. But, when the accused did not challenge his evidence that he was appointed as the advocate commissioner and he had shown the commission warrant to the accused and the accused did not ask any questions in cross examination challenging the same, I do not think that it was improper on the part of the Magistrate to accept that evidence in proof of the fact that PW6 was actually appointed as the advocate commissioner and he inspected the property pursuant to the same. Further, admittedly, PW6 had later executed the commission warrant and filed a report before the Munsiff's Court. PW6 could not have foreseen that he would be appointed in the case as an advocate commissioner to inspect the property before his appointment by the court as Crl. R.P. No. 1738 of 2005 -: 5 :- Advocate Commissioner. Further, apart from PW6, PWs 1 and 2 have also supported the prosecution case, which could not be shaken in cross examination.
7. The same is the case regarding the second contention of the petitioner also. The witnesses had specifically spoken to the incident as happened in the particular place. There is no cross examination as such in respect of the same. Therefore, I do not find any merit in the contention of the petitioner that the prosecution has not succeeded in proving the place of occurrence as well.
8. The next question is as to the explanation for the delay. Admittedly, the date of occurrence is 23.7.1997 and Ext.P1 complaint on the basis of which the First Information Report, was filed on 16.8.1997. The petitioner has categorically stated in his evidence that PW9 Sub Inspector of Police was present at the spot at the relevant time and he had immediately complained to him of the offence and he was forced to file Ext.P1 complaint through the court, because PW9 did not take any action. Of course, PW9 had given evidence as the investigating officer in the case. He had chosen to deny the same. But, it remains a fact that the Bar Association in which PW6 was a member had complained to the High Court regarding the incident, pursuant to which an investigation was conducted through the Subordinate Judge. In view of the same, it is only natural that PW9, fearing of reprisal from the High Court, would deny having been present at the place of occurrence Crl. R.P. No. 1738 of 2005 -: 6 :- on the date of occurrence. If he admits, certainly he would be taken to task by the High Court. That has been given by the courts below as the reason for accepting the explanation submitted by PW6. It is clear from Ext.P1 that Ext.P1 was filed by the petitioner before the court and the court forwarded the same to the police for investigation. Even apart from that, the petitioner has not stated as to how he was prejudiced by the delay. There is no scope for embellishments in the complaint on account of the delay. PW9 himself, who stated that he was not present on the date of occurrence, conducted the investigation and laid the charge. In the above circumstances, I am also satisfied that PW6 has given a plausible explanation for the delay. Therefore, I do not find any merit in the contention of the petitioner that on account of the delay, the petitioner should be acquitted. No other ground has been urged before me by the counsel for the petitioner.
For all the above reasons, I do not find any merit in the Criminal R.P. and accordingly, the same is dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/ [True copy] P.S to Judge.