Martins v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938** **CRL.REV.PET.NO. 3263 OF 2005 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.420/2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), ERNAKULAM DATED 17-10-2005** **AGAINST THE JUDGMENT IN CC NO.1388/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,PERUMBAVOOR DATED 22-04-2005** **----------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **MARTINS, S/O. JOSE, KAJIRATHINGAL VEEDU, AGED 39 YEARS, PARAPPURAM KARA, KAJOOR KIZHAKUMBHAGAM VILLAGE.** **BY ADVS.SRI.S.ABHILASH SRI.S.HARIKRISHNAN** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT::** **---------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.V.P.SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** -------------------------- ## **Crl.R.P. No.3263 of 2005** ---------------------------------------------Dated this the 15[th] day of July, 2016 ## **O R D E R** **-------------** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.420 of 2005 of the Additional Sessions Judge (Adhoc-I), Ernakulam. He was charge sheeted in C.C. No.1388 of 1999 of the Judicial First Class Magistrate Court, Perumbavoor for having committed the offences punishable under Secs.353 and 323 of the Indian Penal Code (for short, 'IPC'). The learned Magistrate convicted the accused under Secs.353 and 323 IPC and sentenced to simple imprisonment for six months under Sec.353 IPC, sentenced to simple imprisonment for three months under 323 IPC. Against that, the accused preferred the above Criminal Appeal before the Additional Sessions Judge, Adhoc-I, Ernakulam, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on Crl.R.P.No.3263 of 2005 2 05.03.1999 at 2.15 p.m., he used criminal force to deter the Commissioner and the Taluk Surveyor appointed by the Munsiff Court, Perumbavoor in O.S. No.159 of 1997 and assaulted them thereby, deter public servants from discharging their duty. Kalady Police registered a crime and after completing investigation, Sub Inspector, Kalady laid charge in the trial court. In pursuance of trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P4. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. The main contention advanced by the learned counsel appearing for the revision petitioner is that there was no obstruction of PW1, the Commissioner and PW2, the Taluk surveyor appointed to measure out the property in O.S. No.159 of 1997 of Munsiff Court, Perumbavoor. PW2 was standing in the Panchayath road and there was no obstruction of the public servant. 4. In reply to the argument, the learned Public Prosecutor submitted that there was specific obstruction Crl.R.P.No.3263 of 2005 3 in discharging the official duty of PW1 and PW2 when they appeared in the disputed property to comply the directions issued by the Court. The assault was proved and there is no illegality or irregularity in the findings of the courts below. No interference is necessary, hence she prays to dismiss the revision petition. 5. While adverting to the above argument, I have gone through the oral and documentary evidence adduced in this case. In order to attract the offence under Sec.353 IPC, the prosecution has to prove that the victim was a public servant. Secondly, at the time of assault, he must have been acting in execution of his official duty. Thirdly, the assault was intended to deter him from discharging his duty or it was in consequence of anything done or attempted to be done by him in the lawful discharge of his duty. 6. Assault or use of criminal force is a necessary ingredient of the offence under Sec.353 IPC. Secs.350 (Criminal force), 351 (Assault) and 353 (Assault or criminal force to deter public servant from discharge ## Crl.R.P.No.3263 of 2005 4 of his duty) of IPC reads as follows: Secs.350 -Criminal force- “ Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. ” Sec.351: Assault- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit and assault. Sec.353 : Assault or criminal force to deter public servant from discharge of his dutyWhoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be Crl.R.P.No.3263 of 2005 5 punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. ## 7. Apex Court in **Chandrika Sao v. State of Bihar [AIR 1967 SC 170]** held that: “When there is no evidence of assault or use of criminal force against a public servant no offence is made out. Whether a particular act amounts to an assault or use of criminal force depends upon the facts of the particular case.” 8. Now the question is whether assault or criminal force was used against a public servant in the execution of their duty. Prosecution examined PW1 and PW2 to prove that while they were discharging the duties as public servants accused assaulted them. The evidence of PW1 shows that he was appointed as Commissioner in O.S. No.159 of 1997 as per the direction of the Munsiff Court, Aluva and he appeared in the petition schedule property on 05.03.1999. Taluk Surveyor was also present in the property. He arrived at the property for taking the measurement of the properties comprised in Survey No.291/1 and Survey No.295/5 having 7 acres 22 cents Crl.R.P.No.3263 of 2005 6 and 2 acres and 10 cents of Kanjoor Kizhakum bhagom village. At 11 o’ clock, he started the measurement and at 2.45 p.m., the revision petitioner came there and assaulted PW2, thereafter pushed him and he fell on the ground. PW1 gave Ext.P1 statement to the Kalady Police. Even though these witnesses were cross examined, nothing has been brought out in evidence that they were appointed as Advocate Commissioner. PW1 categorically stated that his official duty was obstructed and he could not continue his official duty as a Commissioner. The Taluk Surveyor (PW2) supported the evidence of PW1. The doctor who treated George, was examined as PW3. His evidence shows that at 7.00 p.m. on 05.03.1999, he examined PW1 and issued Ext.P2 wound certificate. In Ext.P2 it is noted that there was contusion on the right flank and right lower chest. During cross examination, he admitted that these injuries could be due to a fall on a rough surface. No doubt Advocate Commissioner and Taluk Surveyor appointed by the Munsiff Court are public servants and obstructing them from discharging their Crl.R.P.No.3263 of 2005 7 official duty as Advocate Commissioner and the Taluk Surveyor amounts to an offence under Sec.353 IPC. In the absence of any documentary evidence to prove the appointment of PW1 and PW2 conviction under Sec.353 IPC is unsustainable in law. 9. Execution of duty has been discussed by the Apex Court in **Dattatraya Narayan Patil v. The State of Maharashtra [AIR 1975 SC 1685]** which reads as follows: “Any person who was not a public servant appointed as a Chairman of the Committee may not be a public servant because the office of the Chairman of the Advisory Committee is not such that would make him a public servant. But the matter is different when a public servant under the instructions issued by the Government in exercise of its executive power which is co-extensive with the legislative power of the State, is appointed the Chairman of the Committee. (Para 7 & 8)” 10. The obstruction of PW1 by the accused from discharging his duty was deposed by PW1, PW2 and PW4. While working as a Head Constable PW6 recorded Ext.P1. On the basis of that statement, he registered the case and Ext.P4 is the FIR. He appeared at the place of ## Crl.R.P.No.3263 of 2005 8 occurrence and prepared Ext.P3 mahazar. Analysing the evidence of the occurrence witnesses, it is true that PW1 was assaulted by the accused. The courts below wrongly analysed the evidence and convicted the accused under Sec.353 IPC. It is true that he committed an offence under Sec.323 IPC alone. Therefore, the conviction under S.353 IPC is set aside and he is convicted under Sec.323 IPC and sentenced to imprisonment till rising of the Court and fine of Rs.1,000/- (Rupees one thousand only) u/s.323 IPC. The revision petitioner is directed to surrender in the trial Court to undergo the modified sentence forthwith. This Criminal Revision Petition is disposed of as above. Sd/- ## **P.D. RAJAN ,** ## **JUDGE** NS/19/07/2016 / True Copy / P.A. To Judge