Gopi, S/o Shenmugavel and Sabu, S/o Xavier v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938** **CRL.REV.PET.NO. 2138 OF 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.110/1999 OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA DATED 11-06-2003** **AGAINST THE JUDGMENT IN SC NO.107/1994 OF ASSISTANT SESSIONS JUDGE, THODUPUZHA DATED 07-10-1999** **-------------------------** ## **REVISION PETITIONER(S):- APPELLANT/ACCUSED 1 & 2 :** **----------------------** **1. GOPI, S/O SHENMUGHAVEL, PASUPARA KARA, RESIDING AT PUTHUVALIL HOUSE, MANJUMALA.** **2. SABU, S/O XAVIER, KALARIKAL HOUSE, VANDIPERIYAR.** **BY ADVS.SRI.S.NIDHEESH SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN** ## **RESPONDENT(S):- RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SMT.M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev. Petition No.2138 of 2003 --------------------------------Dated this the 14[th] day of June, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Crl. Appeal No.110 of 1999 of the Additional Sessions Judge (Adhoc-I), Thodupuzha. The accused were charge sheeted in S.C. No.107 of 1994 by the Assistant Sessions Judge, Thodupuzha under Secs.143, 147, 148, 333, 332, 506(ii), 427, 307 read with Sec.149 of the Indian Penal Code ('IPC' for short). The learned Assistant Sessions Judge convicted A1 and A2 under Secs.307, 332 and 333 IPC and sentenced to simple imprisonment for 5 years each under sections 307 and 333 IPC and fine of Rs.5,000/each, in default to undergo simple imprisonment for one year, no sentence was awarded under Sec.332 IPC. Accused A3 to A16 , A18 to 24, A26 to A31 were acquitted by the trial court. Against that, A1 and A2 preferred Criminal Appeal No.110 of 1999 before the Additional Sessions Court, Adhoc-I, Thodupuzha where the learned Crl. Rev. Petition No.2138 of 2003 2 Sessions Judge set aside the conviction under Section 307 IPC and acquitted the accused. But the conviction under Secs.333 and 332 IPC was confirmed and modified the sentence to simple imprisonment for three years under Sec.333 IPC and simple imprisonment for two years and fine of Rs.5,000/-. Fine imposed under Sec.333 IPC is confirmed. Being aggrieved by that, A1 and A2 preferred this revision petition. 2. The charge against the accused is that on 22.05.1991 at 11.45 a.m., accused 1 to 41 formed themselves into an unlawful assembly on the road in front of the Periyar View lodge and in prosecution of the common object of the unlawful assembly, committed rioting armed with deadly weapons like sticks, branches of trees, reaper etc. and attempted to trespass into room no.6 of the Periyar View lodge in the 2[nd] floor. The Police officials present there attempted to disburse the unlawful assembly, at that time, the accused pelted stones and attacked the police officers thereby, the police officers sustained injuries. They damaged the windows, doors of the lodge and also damaged two vehicles parked near the Crl. Rev. Petition No.2138 of 2003 3 place of occurrence, thereby sustained a loss of Rs.10,000/-. Vandiperiyar Police registered a crime and after completing investigation, Dy.S.P., DCRB, laid charge in the Judicial First Class Magistrate Court, Peerumedu, from there, the case was committed to Sessions Court, Thodupuzha and subsequently, it was made over to Assistant Sessions Judge. In pursuance of trial, prosecution examined PW1 to PW14, admitted Exts.P1 to P17 as documentary evidence and admitted MO1 to MO9 as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They produced Exts.D1, D2 and D2(a) in support of their defence. 3. After filing this revision petition, the 1[st] revision petitioner died. In the circumstance, this court directed Dy.S.P., Kattappana to file a report and produce the death certificate. In compliance of the direction, Dy.S.P., furnished a report and produced the death certificate, which was marked as Ext.C1. As per Ext.C1, the 1[st] revision petitioner died on 25.07.2008 at Medical College Hospital, Arpookkara, Kottayam. Crl. Rev. Petition No.2138 of 2003 4 4. Five Judges Bench of the Apex Court in **Pranab Kumar Mitra** v. **State of W.B. and another** [AIR 1959 SC 144] considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person pending the revision, it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. Normally High Court apply its revisional jurisdiction in peculiar cases only when it feels that substantial injustice has been done by a subordinate court. If fundamental rules of assessment of evidence has been violated by a lower court, High Court is justified in interfering in such decision of its lower courts. 5. Learned counsel appearing for the revision petitioners contended that PW2 sustained injury due to the attack of the 1[st] accused and PW3 sustained injury due to an attack by the 2[nd] accused, but one witness alone Crl. Rev. Petition No.2138 of 2003 5 identified the accused, that identity is not sufficient to convict the accused. 6. The prosecution evidence reveals that PW1 to PW3 were examined in the trial court to prove the occurrence. The evidence of PW3 shows that while he was working as Police driver, Kumali Police station on 22.05.1991 at 9.00 a.m, he reached near Periyar View lodge at Vandiperiyar, at that time, 700 people gathered there demanding to release one Thankappan. The assembled crowd carried stones, sticks, bricks etc. and PW2 directed them to disperse from that place, but ignoring that direction, the accused attempted to enter inside the lodge. The police force resisted them, at that time, the people pelted stones. One of the stones hit on the forehead of PW1 and another hit on the forehead of PW2. Both of them were removed to hospital. He identified the accused who pelted stones towards PW1. He identified A2, Sabu and identified MO3 brick during his examination. Since the witnesses are the media through which many facts have necessarily to be placed before Courts, their direct oral evidence that the mob Crl. Rev. Petition No.2138 of 2003 6 attacked the police party is relevant. The totality of the circumstance was examined by the trial court and observed that the injury was caused by pelting of stone and he saw the direct overt act of A2. Nothing has been brought out by the defence counsel during cross examination to discredit the evidence of PW3. PW1 and PW2 supported the evidence of PW3 which is corroborating the above case. Their proportionate knowledge of facts, their disinterestedness and veracity shows that their testimony is admissible. They recollected the story without any omissions, inconsistencies and improbabilities. Broadly speaking these witnesses belonging to police force is not a ground to discard their evidence. Apex Court in **Tahir v. State (Delhi) [(1996) 3 Supreme Court Cases 338]** held as follows: “ No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The rule of Crl. Rev. Petition No.2138 of 2003 7 prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. (Para 6) ” 7. The medical evidence of PW6 shows that he examined PW2 and issued Ext.P2 wound certificate. There was fracture on the frontal bone, which is a grievous injury which could be possible with MO1. He also examined Indrajith, Thomson Mathew, Shanmughan and PC 1270 and issued Exts.P3 to P6 wound certificates. Ext.P8 is the wound certificate of one Kunjumon. The doctor, who treated PW2 was examined as PW7, who deposed that on 22.2.1991 while working as Asst. Surgeon, P.H.C. Vandiperiyar he examined one Lalichan, and issued Ext.P7 wound certificate. He noticed a lacerated wound upper part of middle of forehead 3 x 1 Crl. Rev. Petition No.2138 of 2003 8 cm bone deep and contusion 2 x 1 cm left wrist outer aspect. The injury was caused by pelting bricks. PW7 opined that the injury No.1 could be possible with MO3, and injury No.2 could be possible with stone. A perusal of the medical evidence, it is found that PW3 sustained simple injury in that incident. Analysing the evidence, it is clear that PW2 sustained a grievous injury which was inflicted by the 1[st] accused, who is no more. The evidence of PW1 to PW3 shows that they were discharging their official duty at the place of occurrence and accused attacked them. 8. While considering the ingredients of the offence, it is found that PW1 to PW3 were discharging their official duty. According to Secs.332 and 333 IPC when hurt or grievous hurt is caused to a public servant, (b) or preventing him or deter him from discharging his duty as a Public Servant (3) or in consequence do anything or attempted to do anything in the lawful discharge of his duty as a public servant. The essential ingredients of this section are: (i) the offender should voluntarily cause hurt or grievous hurt to a public Crl. Rev. Petition No.2138 of 2003 9 servant; (ii) it should be caused: (a) when the public servant acted in discharge of his duties, (b) to prevent or deter that public servant or any other public servant from discharging his duty; or (c) in consequence of anything done or attempted to be done by the public servant in the discharge of his duty. The term 'public servant' is defined under s.21, IPC. This section will apply only if the public servant was acting in the discharge of his duty as a public servant, or it should be proved that it was the intention of the accused to prevent or deter the public servant from discharging his duty. ## 9. Apex Court in **Manumiya v. State of Gujarat [AIR 1979 SC 1706]** held as follows. “We are, however, unable to agree with this contention fully because the appellant was not only a citizen but a Deputy Sarpanch of the village and as such a public servant and he should have known that be ought not to have interfered with another public servant in the performance of his duties. This, therefore, aggravates the offence committed by the appellant. However, in the circumstances, we feel that the sentence of one year rigorous Crl. Rev. Petition No.2138 of 2003 10 imprisonment rather errs on the side of severity.” The evidence of PW3 shows that the 1[st] accused caused/inflicted grievous hurt. In this case courts below appreciated the evidence and convicted the 1[st] and 2[nd] accused u/s.333 and 332 IPC. The grievous injury was inflicted by the 1[st] accused and there was no common object to inflict grievous injury. 10. Apex Court in **Kanbi Nanji Virji and others v. State of Gujrat [AIR 1970 Supreme Court 219]** held that; Having come to the conclusion that right from the beginning a prosecution witness was giving a distorted version of the incident, the appellate Court is not right in holding that any portion of evidence deposed by such prosecution witness can be relied upon merely because that some portion of his testimony in Court accords with the version given by him to another prosecution witness. It is true that oftentimes the Courts have to separate the truth from falsehood. But where the two are so intermingled as to make it impossible to separate them, the evidence has to be rejected in its entirety. Where there was a melee at the time of the Crl. Rev. Petition No.2138 of 2003 11 incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two, if the court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight then only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them. (para 8) In a fight between two groups of persons, individual liability can be fastened against those persons who have inflicted injuries. In this case the first accused who committed the offence under Sec.333 IPC, who is no more. The 2[nd] accused committed offence under Section 332 IPC. There is no evidence to show that they have a shared common intention to inflict grievous injury. There is no evidence to show that they met together to share the common object or common intention. From the proved facts it is not possible to draw a conclusive inference that they acted in concert which is an essential element under Sec.34 or Sec.149 IPC. Therefore, the individual liability of the accused was considered in this case by the Courts below. The evidence shows that the 2[nd] Crl. Rev. Petition No.2138 of 2003 12 accused committed the offence under Sec.332 IPC alone. 11. Apex Court in **Narayansingh Nathusingh** v. **Natvarlal Harilal Thakkur and another** [1981 SCC (Crl)895] held that “the period of detention undergone by the accused and fine is sufficient to meet the ends of justice”. In view of the above discussion, the conviction against the 2[nd] accused (2[nd] revision petitioner) is confirmed and he is sentenced to imprisonment till rising of the Court and fine of Rs.5,000/- (Rupees five thousand only), in default simple imprisonment for one month. He is directed to surrender in the trial Court to undergo the modified sentence, failing which the learned Asst. Sessions Judge, Thodupuzha shall issue non bailable warrant against the 2[nd] accused (2[nd] revision petitioner). Crl.R.P. is disposed of. NS Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge