Kerala High Court
Shaji & Others vs State Of Kerala on 19 July, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
CRL.REV.PET NO. 598 OF 2011
AGAINST ORDER/JUDGMENT DATED 16.11.2010 IN CRL.A NO.38/2008 OF
ADDITIONAL SESSIONS COURT (AD HOC I),KALPETTA
REVISION PETITIONERS/APPELLANTS/ACCUSED:
*1 SHAJI
S/O V.T.GEORGE
VETTICHIRAYIL HOUSE, MUTHUMARI, THRISSILERY,
WAYANAD DISTRICT.
2 [V.T.GEORGE SO. THOMAS
VETTICHIRAYIL HOUSE, MUTHUMARI, THRISSILERY,
WAYANAD DISTRICT.] (EXPIRED)
*3 ROY @ KUTTAYI S/O. V.T.GEORGE
VETTICHIRAYIL HOUSE, MUTHUMARI, THRISSILERY, WAYANAD
DISTRICT.
*REVISION PETITIONERS 1 AND 3 ARE RECORDED AS LEGAL
HEIRS OF REVISION PETIITIONER NO.2 VIDE ORDER DATED
6.11.2023 IN CRL.R.P NO.598/2011.
BY ADV SRI.JESWIN P.VARGHESE
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
SRI.G.SUDHEER, PP
THIS CRIMINAL REVISION PETITION HAVING FINALLY HEARD ON
19.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 598 OF 2011 2
JUDGMENT
The challenge in this Crl.Revision Petition is to the Judgment dated 16.11.2010 in Crl.A No.38 of 2008 passed by the Additional Sessions Court (Ad hoc I), Kalpetta. The revision petitioners are accused Nos.1 to 3 in C.C No.428 of 2004 on the file of the Judicial First Class Magistrate II, Mananthavady. The Trial Court convicted the accused under Sections 353, 332 and 225(B) of the IPC and Section 3(1) of the PDPP Act and sentenced them to undergo simple imprisonment for one week u/s 3(1) of the PDPP Act and to pay various amounts as fine under the other penal provisions.
2. The accused challenged the conviction and sentence before the Sessions Court, Kalpetta by filing Crl.A No.38 of 2008. The Sessions Court allowed the appeal in part and set aside the conviction under Section 225(B) of the IPC and Section 3(1) of the PDPP Act. The Sessions Court confirmed the conviction of the accused under Sections 353 and 332 of the IPC.
3. During the course of the proceedings, accused No.2 died. Accused Nos.1 and 3 being the surviving near relatives of accused No.2 sought permission to prosecute the matter. This Court as per order dated CRL.REV.PET NO. 598 OF 2011 3 6.11.2023 granted permission to accused Nos.1 and 3 to prosecute the Crl.Revision Petition for themselves and in the capacity as the near relative of the 2nd accused.
4. The prosecution case is as follows:-
Revision Petitioner No.1 was the accused in O.R No.1 of 1997 registered by the Forest Range Office, Begur. On 30.1.1997 at 5.40 a.m., PWs 4, 5, 10 and 11, the Forest Officials attached to the Begur range reached the residence of accused No.2 in search of accused No.1 to effect his arrest. Accused No.1 was arrested from the house. The Forest officials attempted to take him to a jeep belonging to the forest department. The parents and sisters of accused No.1 and accused No.3 restrained PWs 4, 5, 10 and 11 from taking accused No.1. The officials brought accused No.1 inside the jeep. Accused No.2 inflicted a blow at the knee of PW4 with a wooden stick. Accused No.3 pelted stones at the jeep. In the incident PW4 and PW11 sustained injuries.
5. The prosecution examined PWs 1 to 11 and proved Exhibits P1 to P7. PWs 1 and 2, the independent witnesses did not support the prosecution case.
CRL.REV.PET NO. 598 OF 2011 4
6. PWs 4, 5, 10 and 11 supported the prosecution version. They deposed that the Forest Officials arrested accused No.1. According to them after the arrest of accused No.1, his father and other members of the family created problems. They further stated that accused No.2 voluntary caused hurt to PW4. They added that accused No.3 pelted stones at PW4. PW4 and PW11 stated that they sustained injuries in the incident. The official witnesses gave evidence that accused Nos.2 and 3 forcefully rescued accused No.1 from the jeep. The official witnesses further deposed that accused No.1 escaped from their lawful custody.
7. Dr.Unniram, PW7, an Assistant Surgeon of the District Hospital, Mananthavady gave evidence that he had examined PW4 and PW11 and prepared Exts.P6 and P7 accident register cum wound certificates. Exts.P6 and P7 show that PW4 and PW11 sustained abrasions on their body.
8. I have heard the learned counsel for the revision petitioners and the learned Public Prosecutor.
9. The learned counsel for the revision petitioners submitted that the evidence of PW4 and PW11 is not credible as their oral CRL.REV.PET NO. 598 OF 2011 5 evidence regarding the injuries allegedly sustained by them does not tally with the injuries noted by PW7, in Exts.P6 and P7. The learned counsel further submitted that prosecution failed to establish any offence against accused No.1.
10. The learned Public Prosecutor submitted that the prosecution has succeeded in establishing that PWs 4 and 11 and other official witnesses arrested accused No.1 from the scene of occurrence and PW 4 and PW11 sustained injuries when accused Nos.2 and 3 attempted to rescue accused No.1 from the custody of the Forest Officials. It is further submitted that there is credible evidence to show that accused No.1 used force against the forest officials while escaping from their custody.
11. The Trial Court as well as the Sessions Court analysed the oral evidence and the documents proved on the side of the prosecution and came to the conclusion that PW4 and PW11 sustained injuries in the incident. The learned counsel for the revision petitioners has taken me to the finding recorded by the Sessions Court to the effect that the injuries sustained by PW4 could not be caused by pelting stones. The attempt of the learned counsel for the revision petitioners is that this CRL.REV.PET NO. 598 OF 2011 6 finding goes against the genesis of the prosecution case as the foundation of the prosecution case is that PW4 and PW11 sustained injuries in the pelting of stones by accused Nos.2 and 3. The oral evidence of PWs 4, 5, 10 and 11 consistently supports the prosecution case that PW4 and PW11 sustained injuries when accused Nos.2 and 3 beat them with a wooden stick. The evidence of PW7, the Doctor, corroborates the evidence of PWs 4, 5, 10 and 11 regarding the injuries sustained by PW4 and PW11. Exts.P6 and P7 wound certificates also support the prosecution version.
12. There is also evidence to show that the official witnesses arrested accused No.1 in O.R No.1 of 1997 of Begur Range. PWs 4, 5, 10 and 11were admittedly on official duty.
13. A careful scanning of the evidence shows that prosecution failed to establish that accused No.1 voluntarily caused injuries to any of the witnesses. The conviction now stands against the accused are under Sections 332 and 353 of the IPC.
14. To attract the offence under Section 332 IPC, the prosecution has to be establish the following ingredients:-
1. hurt must have been caused to a public servant and CRL.REV.PET NO. 598 OF 2011 7
2. It must have been caused:-
a) while such public servant was acting in the discharge of his duty as such, or
b) in order to prevent or deter him from discharging his duty as a public servant.
c) in consequence of his having done or attempted to do anything in the lawful discharge of his duty as such a public servant.
15. To attract the offence under Section 353 IPC, the prosecution has to establish the following ingredients:-
(i) There was assault or use of criminal force against any person.
(ii) Such assault or use of criminal force was otherwise than on grave and sudden provocation given by that person.
(iii) the victim of assault or user of force was a public servant within the meaning of Section 21 IPC. CRL.REV.PET NO. 598 OF 2011 8
(iv) the assault or user of force was made on such public servant while he was executing his duty as a public servant.
16. The prosecution has established that accused Nos.2 and 3 committed the offences under Sections 332 and 353 of the IPC.
17. The prosecution could only establish that accused No.1 used criminal force against the official witnesses in his attempt to escape from the lawful custody. The prosecution failed to prove that accused No.1 caused hurt to any of the witnesses. The prosecution, therefore, failed to establish the offence under Section 332 IPC against accused No.1. As far as the rest of the findings, I hold that the view taken by the Sessions Judge is reasonable.
18. Unless the order passed by the Court below is perverse or the view taken by the Court is unreasonable, or there is non- consideration of any relevant materials or there is palpable misleading of records, the revisional court is not justified in setting aside the order merely because another view is possible. It is trite that the revisional court is not meant to act as an appellate court. The whole purpose of the CRL.REV.PET NO. 598 OF 2011 9 revisional jurisdiction is to preserve the power under the Court to do justice in accordance with the principles of criminal jurisprudence.
The conviction of accused No.1 under Section 332 of IPC is liable to be set aside. The other findings of the Sessions Court are liable to be confirmed. The conviction and sentence passed against accused No.1 under Section 332 of the IPC stands set aside. He is acquitted of the offence under Section 332 of the IPC. The rest of the findings recorded by the Sessions Court stand confirmed.
The Crl.Revision Petition is partly allowed as above.
Sd/-
K.BABU JUDGE Sru