Kerala High Court
Mohammed Kutty vs State Of Kerala on 27 October, 2003
Equivalent citations: 2004CRILJ1603, 2004(1)KLT331
JUDGMENT G. Sasidharan, J.
1. This appeal is filed by the accused in Sessions Case 72/1995 on the file of the Sessions Judge, Wayanad. The allegation against the appellant was that he committed the offences under Section 353 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. It is stated that on 9.1.1995 at about 2 p.m. appellant used criminal force by catching hold of the uniform of PW.2 Gopalan, a public servant with intent to prevent or deter him from the execution of his official duty and thereby committed the offence punishable under Section 353 of the Indian Penal Code. There was also allegation that the appellant intentionally insulted and humiliated PW.2 within public view by calling him 'Kurichian' and thereby committed the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as "the Act"). The trial Court convicted the appellant under Section 353 of the Indian Penal Code and Section 3(1)(x) of the Act and sentenced him under Section 353 of the Indian Penal Code to undergo rigorous imprisonment for a period of two years and under Section 3(1)(x) of the Act to undergo rigorous imprisonment for five years and also to pay a fine of Rs. 5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. The sentences awarded by the learned Sessions Judge were maximum sentences that could be awarded under the above provisions. Further there was direction that the sentences had to run consecutively. Aggrieved by the order of conviction and sentence this appeal had been filed.
2. PW.2 gave Ext.P3 first information to PW.6, the Head Constable of Police, Thirunelly Police Station. On the basis of Ext.P3 first information Crime 1/1995 was registered in the above police station against the appellant and investigation of the crime was conducted by PW.10, the Sub Inspector of Police. PW.11; the Circle Inspector of Police verified the records of investigation and filed final report in court.
3. The trial Court mainly relied on the evidence of PW.2, PW.4 and PW.7 to come to the conclusion that the appellant committed the offences punishable under Section 353 of the Indian Penal Code and Section 3(1)(x) of the Act. In respect of the finding that the appellant committed the offence under Section 353 of the Indian Penal Code the learned Sessions Judge said that when the appellant caught hold of the uniform of PW.2 and humiliated him by mentioning his caste be was on official duty. The learned Sessions Judge says that a forest guard who is going from his quarters in uniform has to be considered to be on duty. The evidence of PW.2 was that the occurrence took place near the Forest Check Post, Tholpetty and that he reached near the Check Post when he was going to do his official duty. His version is that he was going from his quarters to the place where he had to discharge his duties as a public servant. The version of PW.2 is that when he reached the Check Post the appellant was sitting near the check post and on seeing him the appellant went near him and caught hold of his uniform and insulted him by mentioning his caste. PW.4 was a forester on duty in the Check Post and he was examined to prove the occurrence. His version is also that at a place near the Check Post appellant caught hold of the uniform of PW.2 and humiliated him by mentioning his caste. Version of PW.7 is that he was going along with PW.2 and he was also on uniform. This witness was working as a Forest Guard in Wildlife Range, Tholpetty at the time when the occurrence took place. This witness also said that when they reached near the Check Post the appellant was there and he caught hold of the uniform of PW.2 and humiliated him by mentioning his caste.
4. PW.2 and PW.7 said that they were supervising the digging of trench at Gheriyanaikatty forest area and they were going to that place for doing their work. PW.2 and PW.7 did not say that at the time when the occurrence took place near the Check Post they were on duty. The trial Court in the judgment says that Ext.P6 certificate issued by Assistant Wildlife Warden, Tholpetty Range would go to show that at the time of occurrence PW.2 was on duty. Ext.P6 certificate says that PW.2 was on duty on 9.1.1995 in Tholpetty-Cheriyanaikatty Forest Area. Ext.P6 certificate was issued by PW.8. He proved Ext.P6 certificate. The learned Sessions Judge in the judgment said that there was no reason for not to accept the statements in Ext.P6 and that when Ext.P6 is there no further record is necessary to prove that PW.2 was on official duty at the time of incident. The incident took place near Tholpetty Check Post and Ext.P6 certificate will not in any way go to show that on 9.1.1995 when PW.2 was near Tholpetty Check Post he was on duty. Even though PW.2 does not say that he was on duty when the occurrence took place, it is true that he says that he was on uniform. But he says that he was going from quarters to the place where he had to perform his official duty of supervising the digging of trench.
5. Section 353 of the Indian Penal Code says that whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant is punishable as stated in that section. PW.2 is a public servant but at the time when the occurrence took place near the Check Post, Tholpetty he was not in the execution of his duty as such public servant. In order to attract Section 353 of the Indian Penal Code, it must be proved that the person who was assaulted or against whom criminal force was used was in execution of his duty as such public servant. So, even if the evidence of the witnesses is accepted as true, it is not at all possible to say that the offence punishable under Section 353 of the Indian Penal Code was committed since even as per the statements made by PW.2 and PW.7, PW.2 was not discharging any official duty as a public servant at the place where the occurrence took place.
6. The evidence is that PW.2 was going from his quarters to the place where he had to discharge his official duty. He was in uniform. A person, who is going from his residence to the place where he has to attend to public duties, cannot be said to be on duty. He can be said to be in execution of public duty only when he reaches the place where he has to perform his duties and he engages himself in discharge of his public duties.
7. In Richard Saldana and Ors. v. State (AIR 1960 Kerala 200) this Court had the occasion to consider the question whether a person who is going for attending his duty can be said to be on official duty. In the above decision it was held that travelling as such was riot part of his duty even though in order to attend to such duty he had to do some travelling. In the above decision this Court said that Section 353 of the Indian Penal Code can apply only when the public servant is discharging the duty imposed on him by virtue of his office and he must be performing an act which is so integrally connected with the duty attached to his office as to form part of it. Travelling to the place of duty was not treated as something done in discharge of official duty. So, the finding by the trial Court that the appellant committed the offence punishable under Section 353 of the Indian Penal Code can be found to be not correct for the reason that even if the evidence adduced by the prosecution is accepted as such, Section 353 is not at all attracted.
8. Coming to the question whether the finding by the trial Court that the appellant committed the offence under Section 3(1)(x) of the Act is correct or not, it has to be said that in order to attract the above provision there must be evidence that the appellant intentionally insulted or intimidated PW.2 with the intent to humiliate a member of a scheduled tribe in any place within public view. There is evidence to show that PW.2 is a member of a scheduled tribe. PW.1, Tahsildar, Mananthavady issued Ext.Pl certificate stating PW.2 belongs to Kurichian Tribe which is recognised as Scheduled Tribe under the Constitution (Scheduled Tribes), Order, 1950 as amended by the Scheduled Tribes Order, 1976. Appellant is a Muslim. The case of the prosecution is that the offence punishable under Section 3(1)(x) of the Act was committed by the appellant by mentioning the caste of PW.2. That being the allegation regarding the commission of the offence, what this Court is expected to do is to decide whether the evidence of witnesses regarding the mentioning of the caste of PW.2 and also about the alleged humiliation can be accepted. The appellant can be found to have committed the above offence only if the evidence of the witnesses that appellant mentioned the caste of PW.2 is wholly reliable.
9. PW.2 says that wife of the appellant went for collecting firewood from the forest and then he prevented her from collecting firewood from there and also registered case against her. According to PW.2, appellant was having grudge towards him for the reason that his wife was prevented from collecting firewood and appellant caught hold of the uniform of PW.2 and insulted him by mentioning his caste. PW.2 says that appellant asked PW.2 whether he was the king of the forest to prevent his wife from collecting firewood from the forest. PW.2 went on to say that appellant asked PW.2 why did he call wife of the appellant "Edi" with disrespect. Then he went on to say that appellant asked him who gave the authority to him who was a Kurichian to call wife of the appellant "Edi" with disrespect. The evidence is that appellant asked PW.2 who gave him the authority to abuse the wife of the appellant and along with that he mentioned that PW.2 was a member of Kurichian. The prosecution case is that by mentioning the caste PW.2 was humiliated and insulted.
10. PW.4, who says that he was on duty in the Forest Check Post, has a different version regarding what the appellant asked PW.2. PW.4 said that appellant asked PW.2 whether he was a minister and he saw the appellant catching hold of uniform of PW.2 and asking him who gave authority to Kurichian. But PW.4 did not say that the appellant asked PW.2 why did he call his wife "Edi" with disrespect. A close scrutiny of the evidence regarding the commission of the offence under Section 3(1)(x) of the Act is necessary because the question whether there is commission of offence under the above provision is confined to the fact whether the appellant mentioned the caste of PW.2 with the intention of insulting or humiliating a member of a scheduled caste. The mere fact that caste of a person is mentioned will not attract Section 3(1)(x) of the Act.
11. PW.7 says that appellant used criminal force to PW.2 because he registered case against the wife of the appellant for collecting firewood from the forest. Version of PW.7 is that appellant caught hold of the collar of the shirt of PW.2 and pushed him. This witness says that he was also given the duty which PW.2 had to do and both of them were going together to the place of their duty. The evidence of PW.2, PW.4 and PW.7 regarding what the appellant said at the place of occurrence mentioning the tribe to which PW.2 belongs does not inspire confidence of this Court. It is not possible to come to the conclusion that the appellant committed the offence punishable under Section 3(1)(x) of the Act merely on the basis of the above statements made by PW.2, PW.4 and PW.7. I find that the conclusion arrived at by the trial Court that the appellant committed the offence under Section 3(1)(x) of the Act is not correct. Appellant has to be acquitted.
This appeal is allowed on acquitting the appellant of the charge against him for the offences punishable under Section 353 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Appellant shall be set at liberty forthwith.