Babu Varghese alias Babu Pazhuthara Babu and Benny Joseph v. State of Kerala

CRL.A.No.799 OF 2005 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942** **CRL.A.No.799 OF 2005** **AGAINST THE JUDGMENT IN SC 456/2003 OF THE SESSIONS COURT, THODUPUZHA** ## **APPELLANTS/ACCUSED:** **1 BABU VARGHESE@ BABU @PAZHUTHARA BABU, S/O.VARGHESE, THOTTIYIL VEETTIL, (CHARATHAMKUNNEL), PUTHUPARAIYARAM KARA, MANAKKADU VILLAGE, THODUPPUZHA.** **2 BENNY JOSEPH ,S/O.JOSEPH CHILLUPARAMBIL VEEDU, MANAKKADU VILLAGE, ARIKKUZHAKKARA, THODUPUZHA.** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.K.A.ANAS SRI.GEORGE MATHEW SRI.P.N.SUKUMARAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI.K.B.UDAYAKUMAR, SR.GP.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-102020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.799 OF 2005 2 ## **JUDGMENT** ## **Dated this the 15th day of October 2020** The appellants are the accused in S.C.No.456/2003 on the file of the Sessions Judge, Thodupuzha. The above case is chargesheeted by the Deputy Superintendent of Police, Thodupuzha against the appellants alleging the offences punishable under Section 326 and 324 r/w 34 IPC. The offence under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (fort short 'Act, 1989) is also alleged. 2. The prosecution case is that on 30.10.2002 at 8.45 pm., the accused voluntarily caused hurt to PW1 Jaison by beating with an iron rod and a wooden stick which are deadly weapons and also caused grievous hurt to PW1 by the first accused by beating PW1 with an iron rod, which was marked as MO1. It is alleged that PW1 sustained a fracture. It is also alleged that the accused who are neither the members of Scheduled Caste nor Scheduled Tribe intentionally insulted PW1, who is a member of the Scheduled Caste. 3. To substantiate the case the prosecution examined PW1 to PW10. Exts.P1 to P15 are marked on the side of the prosecution. MO1 to MO3 are the material objects. 4. After going through the evidence and the documents, the CRL.A.No.799 OF 2005 3 trial court found that both accused are found guilty under Section 324 IPC. The trial court also found that the 1[st] accused is guilty under Section 326 IPC and under Section 3(1)(x) of the Act, 1989. The first accused is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- for the offence under Section 324 IPC. He is also directed to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/- for the offence under Section 326 IPC. The 1[st] accused is also directed to undergo simple imprisonment for six months and to pay a fine of Rs.1000/- under Section 3(1)(x) of Act, 1989. The 2[nd] accused is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- for the offence under Section 324 IPC. In default of payment of fine, the 2[nd] accused is directed to undergo simple imprisonment for a further period of one month. If the fine amount is realised, there is a direction to pay an amount of Rs.10,000/- to PW1 as compensation. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. 6. The learned counsel for the appellants submitted that evenif the entire allegations are accepted, the offence under Section 326 IPC is not made out. The counsel submitted that the weapon used in this case is a small iron rod. The counsel submitted that it is not a dangerous weapon as described in CRL.A.No.799 OF 2005 4 Section 326 IPC. The counsel takes me through the seizure mahazar to substantiate his case that, it will not come within the definition of 'dangerous weapon'. The counsel also submitted that there is absolutely no evidence to attract the offence under Section 3(1)(x) of the Act, 1989. The counsel also submitted that the prosecution miserably failed to prove that the medical evidence is consistent with the ocular evidence. The counsel submitted that PW1 and PW3 are brothers. PW2 is not an eye witness. The counsel submitted that the evidence of PW1 and PW3 is contradictory. Moreover, the counsel submitted that they are brothers and they are interested persons. According to the counsel, PW2 and PW3 came together to the spot but according to PW3 he witnessed the entire incident, but PW2 only saw the injured lying on the ground. The counsel submitted that therefore, these witnesses are unrealiable and hence the appellants/accused are entitled the benefit of doubt. 7. The Public Prosecutor submitted that there is oral and documentary evidence to prove that the accused committed the offences. The Public Prosecutor submitted that oral evidence is supported by the medical evidence and there is nothing to interfere with the conviction and sentence imposed by the trial court. 8. The point for consideration in this case is whether the CRL.A.No.799 OF 2005 5 accused committed the offence under Sections 324 and 326 IPC and Section 3(i)(x) of the Act, 1989. 9. The first point to be decided is whether the offence under Section 3(1)(x) of the Act, 1989 is attracted in this case. It will be better to extract the Section 3(i)(x) of Act 1989. “3. **Punishments for offences atrocitie** s.—3 [(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribexxxxxx xxxxxx xxxxxx (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; xxxxxxx xxxxxxx (xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.” 10. To attract the offence under Section 3(1)(x) of the Act 1989, the prosecution has to prove that the accused intentionally insult or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. 11. The Apex Court in **Gorige Pentaiah v. State of A.P and others (2008 KHC 6772)** considered this point in detail. The relevant paragraph of the above decision is extracted hereunder: CRL.A.No.799 OF 2005 6 “8. In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accusedappellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law. “ ## 12. Similarly, the Apex Court in **Asharfi v. State of Uttar Pradesh (2017 KHC 6845)** also considered this point. The relevant paragraph is extracted hereunder: “7. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of S.3(2)(v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.” ## 13. Again this Court also considered this point in **Johnson** ## **T.T v. State of Kerala and another (2016 KHC 963)** . The relevant portion is extracted hereunder: “7. Another contention of the learned counsel was that there was no allegation that accused had intentionally abused her by degrading her as a member of the SC community. The settled legal position is that in the absence of evidence that accused intentionally insulted or intimidated with intend to humiliate the complainant as a member of that caste, offence under Act is not attracted. This is reported in CRL.A.No.799 OF 2005 7 Ram Balachander v. state of MP, 2012 KHC 2003 : 2012(1)KLD 285:2011(4) Crimes 495, Asokan Nambiar v. State of Kerala, 2005 KHC 4 : 2005(1) KLT 12 : 2005(1) KLJ 151 and in Mohammad Kutty v. State of Kerala, 2004 KHC 57 : 2004(1) KLT 331 : 2004(1) KLJ 618 : ILR 2004(1) Ker.467 : 2004 CriLJ 1603. In Mohammed Kutty's case, it was held that a mere mention of caste of a person will not constitute the offence, unless there was an intention to humiliate or to insult. Definitely, intention is something which should be specifically alleged and can be gathered from the conduct of the parties or from attending circumstances.” 14. Therefore, it is settled by several decisions of this Court and the Apex court that the evidence is necessary to the effect that the accused intentionally, insult or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. 15. Evenif we accept the evidence of PW1 to PW3 in toto, there is absolutely no allegation by these witnesses that there was an intention on the part of the accused to insult or intimidate with intend to humiliate a member of a Schedule Caste or Schedule Tribe. A reading of the evidence of PW1 to PW3 it is clear that the intention of the accused is to assault them. In such situation, the offence under Section 3(1)(x) of the Act 1989 is not attracted in this case. Moreover the evidence is also necessary that the insult or intimidation should be in any place within public view. PW1 to PW3 has no case that it is a place within public view, as stated in Section 3(1)(x) of Act, 1989. In such circumstances, I am not in a position to accept the conviction under Section 3(1)(x) of the Act CRL.A.No.799 OF 2005 8 1989 against the 1[st] appellant. 16. The next question to be considered is whether the offence under Section 326 IPC is made out. The counsel for the appellants submitted that the weapon used in this case is a small iron rod and the description of the iron rod is mentioned in Ext.P5 seizure mahazar. The counsel submitted that this will not come within the definition of a dangerous weapon mentioned in Section 326 IPC. The counsel relied the judgment of the Apex Court in **Mathai v. State of Kerala (2005 KHC 121** ). The relevant paragraph is extracted hereunder. “15. Some hurts which are not like those hurts which are mentioned in the first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense pain, prolonged disease or lasting injury to the victim, although it does not fall within any of the first seven clauses. Before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly. 16. The expression "any instrument which used as a weapon of offence is likely to cause death" has to be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made. 17. The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are : (1) voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means. As was noted by this Court in State of U.P. v. Indrajeet Alias Sukhatha (2000(7) SCC 249) there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious CRL.A.No.799 OF 2005 9 wound or grievous hurt or injury has to be determined factually. As noted above the evidence of Doctor (PW 5) clearly shows that the hurt or the injury that was caused was covered under the expression 'grievous hurt' as defined under Section 320 IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous weapon. It would depend upon the facts of the case. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable.” 17. I perused Ext.P5 seizure mahazar. In the seizure mahazar it is stated that the circumference of the iron rod is 4 cm and the length of the iron rod is 64 cm. Admittedly, it is an iron rod. In such circumstances, I am not in a position to accept the contention of the appellants that this is not a dangerous weapon. Therefore, that contention of the appellants cannot be accepted in the facts and circumstances of the case. 18. Then the learned counsel for the appellants submitted that the evidence of PW1 to PW3 regarding the infliction of grievous hurt cannot be believed. According to the counsel, PW1 stated that the 1[st] accused beat him using an iron rod on his forehead. Then he fell down. Thereafter the 1[st] accused beat him on his chin. Accordingly, PW1 he sustained grievous hurt. A perusal of Ext.P4 will show the following injuries: CRL.A.No.799 OF 2005 10 - i) Avulsion fracture mandile with loosening of teeths lower incisors). - ii) Lacerated wound 6 x 2 cm lower lip. iii) Lacerated wound 3 x 0.5 cm at the forehead. 19. According to the doctor injury No.2 is corresponding to injury No.1. As I stated earlier PW1 deposed that the 1[st] accused attacked him using an iron rod on his forehead and then he fell down. Thereafter the 1[st] accused attacked on his chin, which resulted the fracture. But PW3 has not supported this version. He only says about the attack of the 1[st] accused on the forehead. Then it is stated that PW1 fell down and again assaulted. But PW3 is not supporting the case of PW1 that the 1[st] accused attacked him on his chin, which resulted the fracture. It is to be noted that PW2 and PW3 reached the place together. PW2 has not witnessed the incident. PW2 only says that he saw PW1 lying on the ground. In the light of the above facts there is only interested testimony of PW1, the injured, about the fatal injury sustained to him. Admittedly, there is some enmity between PW1 and the 1[st] accused. According to the 1[st] accused the fracture sustained to PW1 because he fell down. This is probabilised by the evidence of the doctor, who is examined as PW4. In such circumstances, I am not in a position to accept the evidence of CRL.A.No.799 OF 2005 11 PW1 that 1[st] accused inflicted the second injury which resulted grievous hurt to PW1. But of course, there is evidence to show that the accused assaulted PW1 and PW1 sustained injury. That will attract Section 324 IPC. But I am not in a position to accept the evidence of PW1 to PW3 that the 1[st] accused is guilty under Section 326 IPC because there is no clear evidence that the 1[st] accused inflicted the injury which resulted in grievous hurt. Therefore, I am not in a position to confirm the conviction of the 1[st] accused under Section 326 IPC also. 20. As far as Section 324 IPC is concerned there is ample evidence to show that the accused attacked PW1 and PW1 sustained injury. The injuries sustained by PW1 is proved through Ext.P3 wound certificate, which is marked through PW4 doctor. Therefore, the offence under Section 324 IPC is made out against the appellants. 21. Then the next question is whether the sentence imposed under Section 324 IPC is justifiable. The alleged incident in this case happened in 2002, Now 18 years elapsed after the incident. From the second page of the impugned judgment it is clear that the 1[st] accused undergone pre trial detention for about six days. Therefore considering the entire facts and circumstances of the case, I think, the sentence of fine will be sufficient. But I have to consider the injury sustained by PW1 also CRL.A.No.799 OF 2005 12 while imposing the fine. I think, after imposing the fine, there can be a direction to pay compensation to PW1 under Section 357(1) Cr.P.C. Therefore, this Criminal Appeal is allowed in part. i) The conviction and sentence imposed on the 1[st] appellant under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is set aside. ii) The conviction and sentence imposed on the 1[st] appellant under Section 326 IPC is set aside. iii) The conviction imposed on the appellants under Section 324 IPC is confirmed. iv) The sentence imposed under Section 324 IPC against the appellants is set aside. v) The appellants are sentenced to pay a fine of Rs.15,000/- each under Section 324 IPC. In default of payment of fine, the appellants are directed to undergo simple imprisonment for three months. vi) If the fine amount is realised, the entire fine amount (Rs.30,000/-) should be paid to PW1 under Section 357(1) Cr.P.C as compensation. Sd/- ## **P.V.KUNHIKRISHNAN** **JUDGE** ab