Hussain s/o Muhammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933** ## **CRL.A.No. 230 of 2003()** **-----------------SC.201/1998 of ADDL. DISTRICT & SESSIONS COURT, MANJERI ................** **APPELLANT / ACCUSED :** **-------------------------------------** **HUSSAIN S/O. MUHAMED, PULAMBALAVAN HOUSE, PARAPPUR, THARAYITTAL, MALAPPURAM DISTRICT.** **BY ADV. SRI. BABU S. NAIR** **RESPONDENT / STATE :** **-----------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, MALAPPURAM - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **N.K.BALAKRISHNAN, J. ---------------------------------------------------Crl.Appeal.No.230 of 2003 ---------------------------------------------------Dated this the 26[th] day of August, 2011** ## **Judgment** The appellant was convicted by Additional Sessions Judge, Manjeri for offences punishable under Sections 353 and 333 IPC. He was sentenced to undergo RI for 5 years and to pay Rs.50,000/- as fine. He was also sentenced to pay a fine of Rs.25,000/- for the offence under Section 353 IPC. A total amount of Rs.30,000/- out of the fine amount was directed to be given to PW1 as compensation. 2. The case of the prosecution is that on 05.02.1980 at about 06:00 P.M., PW10, the Sub Inspector of Police and other officers including PW1 were on patrol duty proceeding in their police jeep. When they reached near the place called Gandhidas Padickal, a reliable information was received by PW10, the S.I. of police that three persons occupying a house at a particular place were engaged in dealing with currency notes. Accordingly the S.I. prepared a search memo and caused to be sent to the Judicial First **Crl.Appeal.No.230 of 2003 2** Class Magistrate, Manjeri and thereafter proceeded to the house mentioned earlier. The house was not locked from inside. PW10 entered the room. Three persons including the accused/appellant herein were engaged in counting the currency notes. Those persons took to their heels through the rear door of the house. PW1, the Police Constable chased the accused. After running for a while, PW1 caught the appellant from behind. The accused wriggled out and then he fisted PW1 on his lower jaw causing dislocation of 5 teeth of the lower jaw. PW1 screamed. PW10 and others reached there. PW10 tried to apprehend the accused. There was an altercation. The accused used force on PW10 also. He and the accused fell down and rolled on the ground. PW10 sustained injuries on his knee and other parts during that struggle and fall. Ultimately PW10 could **Crl.Appeal.No.230 of 2003 3** over power the accused. Thereafter, the accused was taken to the scene house. PW1 was sent to the Community Health Centre along with two other Constables. PW10 thereafter completed search of the house and prepared the search list – Ext.P9 as per which a currency notes of a total of Rs.11,10,000/- were seized by PW10. It was signed by PW10 and two other witnesses and also by the accused as evidenced by Ext.P9. PW1 was examined by PW9, the doctor and thereafter, he was referred to the Government Hospital, Manjeri where PW1 was treated by PW7. PW1 was again examined by PW8, the Dentist District Hospital, Manjeri and three teeth of the lower jaw of PW1 were extracted. Four lower anterior incisors were found sub-luxated. (Out of them 3 teeth were removed.) The seized currency notes were produced before Court. The ## **Crl.Appeal.No.230 of 2003 4** investigation with regard to the obstruction caused to the public servants and grievous hurt caused to PW1 and injuries to PW10 in discharge of their official duties was conducted by PW11. 3. Before the Trial Court PW1 to PW11 were examined and Exts.P1 to P10 were noted. It was contended by the defence that he was man-handled by the police officials and it was in order to escape from the same the police officials foisted this case. 4. One witness was examined and Ext.D1 was marked to prove that the currency notes which were produced by PW10 before court were subsequently released by the court. 5. After scanning the entire evidence the accused was found guilty, convicted and sentenced by the Additional **Crl.Appeal.No.230 of 2003 5** Sessions Judge as mentioned above. 6. The learned counsel for the appellant would submit that the evidence given by the prosecution witness is highly contradictory. There is no independent evidence to corroborate the prosecution version. The corrections in Ext.P3 wound certificate with regard to the name of the accused and also as to the person who took PW1 to the hospital were not properly considered by the trial court. The fact that the currency notes seized as Ext.P9 search list were subsequently released by the Income Tax department would show that there was no justification for searching of the house. It is further submitted that the evidence given by PW1 that he was fisted by the accused and thus caused dislocation or sub-luxation of teeth cannot be accepted, since that part of the evidence was not supported by any ## **Crl.Appeal.No.230 of 2003 6** other evidence. 7. The fact that PW10 received a reliable information that in that house currency notes were being handled by 3 persons, cannot be assailed in view of the fact that search of that house was actually conducted as evidenced by Ext. P9 which was signed by the accused himself whether he was the owner of the house or was only a tenant is of no consequence. As per Ext.P9 search list, Rs.11,10,000/- was seized and produced before the authorities. Therefore, it can be found with certainty that the evidence given by PW10 that he got reliable information regarding the handling or counting of such huge number of currency notes is only to be accepted. It is vehemently argued by learned counsel for the appellant that the search memo alleged to have been prepared by PW10 has not seen the **Crl.Appeal.No.230 of 2003 7** light of the day. PW11, the Investigating Officer has not ventured to produce the copy of the search memo or the original search memo sent to the Magistrate to be produced in trial. The learned counsel further submits that though PW10 says that a constable was entrusted with the search memo for sending the same to the Court, there is no acceptable evidence with regard to the same. It is also argued that the evidence given by some of the police officials would show that nobody in the police party was asked to send/ to despatch the search memo to the Court. Therefore, according to the learned counsel it has to be held that no search memo was prepared at all and as such the search is illegal. In the particular fact situation of the case, it can be found that there was justification for PW10 to search the house after preparing and sending the search ## **Crl.Appeal.No.230 of 2003 8** memo. The search was justified and fortified by Ext.P9 search list and the production of the currency notes. Illegality if any in the conduct of the search will not render nugatory the evidence/materials collected through such search. Even if is assumed that there was illegality in the search conducted, it will not render the evidence collected invalid as was held by the Constitution Bench in **Pooranmal's case (AIR 1974 SC 348)** which was followed by the Apex court in the subsequent decision also. One such decision is reported in **Khet Singh v. Union of** ## **India, 2002 SCC (Cri) 806** where it was held “Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice has been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or ## **Crl.Appeal.No.230 of 2003 9** seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” 8. The question is whether PW10 and other officials were discharging their official duties. Ext.P9 itself gives the answer for that purpose. It cannot be said that the search of the house conducted by PW10 was not part of their official duties. 9. The next question is whether the accused caused obstruction to the police officials in discharging their official duties. The evidence would show that the accused sped away from that house through the rear door of the house and so PW1 chased him for a while and he caught hold of the accused from behind. The evidence given by PW1 that he was fisted by the accused on his lower jaw and caused dislocation of the teeth is well fortified by Ext. P3. PW6, the doctor found fresh bleeding on the lower gum of ## **Crl.Appeal.No.230 of 2003 10** PW1 and noticed four lower teeth shaking. Learned counsel for the accused would submit that firstly the name of the assailant was shown as Muhammedkutty and subsequently it was scored and in its place name 'Hussain' was written there. All these are seen done by the doctor then and there. More over, it cannot have any relevance in the view of the fact that the question is not whether PW1 was taken to the hospital by Subramanian, Balan or Ramakrishnan, the admitted fact is that PW1 was taken to the hospital. The injured was seen by the doctor at 07:00 P.M., that means, about one hour after the incident. Therefore, the evidence given by PW1 gets strengthened by Ext.P3, the wound certificate and the fresh injuries noted by PW6. 10. It was vehemently contended by the defence that the injuries noted in Ext.P3 and the subsequent extraction ## **Crl.Appeal.No.230 of 2003 11** of three teeth and mobility of another tooth noted by the other two doctors could have been sustained by PW1 when he fell down on a rough surface. It was explained by Doctor Jalaja, (PW8) that in such a case it would be associated with external injuries. The learned counsel would submit that PW1 could have as well fallen on a surface which was not rough. Such suggestions will remain in the realm of suggestion alone. The question here is whether the evidence given by PW1 that he was fisted by the accused radiates confidence in the mind of the Court. The fact that PW10 did reach the scene immediately on hearing the alarm of PW1 and saw PW1 with bleeding injuries would also lend credence to the case of the prosecution. 11. PW10 has stated that after reaching there he caught hold of the accused and then there was an ## **Crl.Appeal.No.230 of 2003 12** altercation and thus both of them fell down and he sustained injuries on his knee and other parts. 12. PW10 was examined by PW6 on the day of incident at 08:15 P.M. and he noted two abrasions on right knee and on the right ankle and also superficial scratches on the lower part of the leg. Ext.P4 is the certificate issued for that purpose. He could go to the hospital only after effecting seizure of the currency notes and after preparing the search list. That is why the reason for the delay in his reaching the hospital. The evidence given by PW10 to that extent get corroboration from Ext.P4 and the evidence given by PW6 as well. The learned counsel further submits that, though the accused was stated to have sustained some injuries in the incident, the prosecution did not produce that wound certificate. However, that does not affect the ## **Crl.Appeal.No.230 of 2003 13** case of the prosecution since it is not a case where the accused caused injuries to PW1 and PW10 in exercise of the right of private defence. 13. The learned counsel for the accused submits that there are contradictions in the evidence given by PW1, 4, 5, 9 and 10. Since five witnesses spoke with regard to the incident, some inconsistencies occurred in the evidence given by them. Such inconsistencies are only natural variations which are bound to occur since the perception, reception, retention and reproduction would vary from person to person. Had it been free from inconsistencies and a parrot like version then the Court must be cautious since the possibility of tutoring in such case would be more. Therefore, slight inconsistencies projected by the learned counsel for the accused with regard to the incident spoken **Crl.Appeal.No.230 of 2003 14** to by the five witnesses mentioned above cannot in any way affect the credibility of the prosecution case. 14. The learned counsel for the appellant has relied upon the decision of the **Orissa High Court in Krushna Chandra Behera v. State [1984 CRI.L.J. 1409]** in support of her submission that before proceeding for conducting search the reasons for belief for search should be recorded. Here, there was justifiable reason for conducting search. The search was followed by the seizure of currency notes as deposed by PW10. The factum of search and seizure of currency notes was not disputed. It was also not seriously disputed that the accused ran away from the house on seeing the police party and so PW1 chased the accused. Hence the aforesaid decision is not applicable to the facts of this case. The decisions of the ## **Crl.Appeal.No.230 of 2003 15** **Calcutta High Court in V.R. Murthy v. State 1995 CRI.L.J. 1819** and of the **Bomaby High Court in Muralidhar K. Virulkar v. State of Maharashtra 2005 CRI. L.J.3378** and **Punjab and Haryana High Court in Nathu Ram and others v. State of Haryana 1995 CRI.L.J.2817** cited by learned counsel for the appellant are also to be distinguished on facts. Here, there is evidence to show that grievous hurt was caused to PW1. It is not mere loosening of three teeth but actual loss of teeth that could be proved by the prosecution . There is evidence to show that PW1, PW10 and others were discharging their official duties. 15. It is proved that the accused assaulted or used criminal force to PW1and PW10 who were in the execution of their duties as public servants. The force was used by ## **Crl.Appeal.No.230 of 2003 16** the accused with intend to prevent them from discharing their official duties as public servanats. Hence offence under Sec.353 is fully established. Similarly the accused is proved to have voluntary caused grievous hurt to PW1 in discharge of his duty as public servant and as such offence under Sec. 333 of IPC is also well established. The finding of guilt entered by the court below is to be thus confirmed. As such the conviction of the appellant for the offences under Sections 353 and 333 IPC is hence confirmed. 16. Learned counsel for the appellant submits that the accused is now aged 63 years and so leniency may be shown to him. It is a case where the accused used his muscle power to obstruct the police officials in discharging their official duties. 17. However, considering all the aspects the sentence ## **Crl.Appeal.No.230 of 2003 17** can be modified. In supersession of the sentence imposed by the court below, the accused/appellant is sentenced to R.I. for two years and to pay Rs.50,000/- as compensation to PW1 and Rs.5,000/- as compensation to PW10 and in default to undergo R.I. for one year for the offence under Section 333 IPC. The accused/appellant is also sentenced to pay Rs.10,000/- as fine and in default of payment of which he will undergo R.I. for six months for the offence punishable under Section 353 IPC. **N** . **K. BALAKRISHNAN, JUDGE** smvd **==> picture [432 x 66] intentionally omitted <==**