Nizar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 CRL.APPEAL NO. 253 OF 2013** **AGAINST THE JUDGMENT DATED 22.01.2013 IN SC NO.965 OF 2006 OF ADDITIONAL SESSIONS COURT (ADHOC) III, KOLLAM ARISING OUT OF THE ORDER/JUDGMENT IN CP NO.93 OF 2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM** **APPELLANT/ACCUSED NO.1:** **NIZAR** **S/O. MUHAMMED KUNJU, SIBI NIVAS, NEAR CHIRAKKARA COLONY, THAZHUTHALA CHERRY, ADICHANALLOR VILLAGE.** **BY ADVS. SRI.VIPIN NARAYAN SRI.M.REVIKRISHNAN SRI.V.C.SARATH** ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.253 of 2013 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.253 of 2013** **----------------------------------------------------------Dated this the 4[th] day of June, 2024** ## **JUDGMENT** The 1[st] accused in S.C.No.965 of 2006 before the Additional Sessions Court (Adhoc-III), Kollam is the appellant. He along with the 3[rd] accused was tried by the Additional Sessions Judge on a charge for the offences punishable under Sections 341, 332, 506 Part II and 308 read with Section 34 of the Indian Penal Code, 1860 (IPC). The 2[nd] accused was absconding. The 1[st] accused alone was convicted. He was convicted for the offence under Section 332 of the IPC and sentenced to undergo rigorous imprisonment for a period of six months. The said judgment of conviction and the order of sentence are assailed in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3 Crl.Appeal No.253 of 2013 3. The case of the prosecution is as follows: The appellant was an accused in a case registered from the Excise Range, Chathannoor. PW4 was the Excise Inspector in Chathannoor Range. PWs.1 and 2 were Excise Guards working under him. They along with other excise officials went to the house bearing door No.XIII/57 of Adichanelloor Panchyat to arrest the 1[st] accused. When PWs.1, 2 and 4 entered the south-western room of that building for nabbing the 1[st] accused, he resisted and attacked PWs.1 and 2 by beating them using a steel hanger. The 2[nd] accused restrained them and the 3[rd] accused threatened them using a chisel. By putting them under threat, the 1[st] accused escaped and thereby evaded arrest. 4. Accused Nos.1 and 3 denied the charge. The prosecution has examined PWs.1 to 6 and proved Exts.P1 to P9. The accused denied the incriminating circumstances appeared in evidence during examination under Section 313(1)(b) of the Code. The case of the 1[st] accused was that the house where the incident allegedly occurred did not 4 Crl.Appeal No.253 of 2013 belong to him and he was not a resident there. He claimed to be innocent. The defence case was that PWs 1 and 2 tried to molest women in the house and therefore the people manhandled them. No defence was let in except Exts.D1 to D4, which are the contradictions in the oral testimonies of PWs.1 and 2. The trial court held that recovery of MOs.1 and 2 could not be believed and there were a few contradictions in the evidence of the occurrence witnesses. Albeit the misdescriptions about the weapon of offence, time, etc. in Exts.P1 and P2, the witnesses remain creditworthy. Accordingly, believing the evidence of PWs.1, 2 and 4, medical evidence and the circumstances leading to the registration of the crime, found the 1[st] accused guilty. 5. The learned counsel for the 1[st] accused assails the judgment on several grounds. It is submitted that so many persons; both hailing from the locality and other excise officials and the taxi driver would have seen, at least, part of the incident; but none of them was examined by the prosecution. The wound certificates Exts.P1 and P2 stand contradictory to 5 Crl.Appeal No.253 of 2013 the version of PWs.1 and 2 in court with reference to the cause of injury and also the time of incident. That makes their evidence unreliable. The version in Exts.P4 F.I.Statement does not tally with the oral testimonies of PWs.1 and 2 in court. The address given in Exs.P1 and P2 are not the official address of PWs.1 and 2, which would substantiate the defence version that PWs.1 and 2 were not on duty. It is further urged that nonproduction of any document to show that PWs.1 and 2 were in discharge of their duty at the time of occurrence belies the case of the prosecution. Although PWs.1 and 2 deposed that blood was oozed out, their blood stained clothes were not seized and produced in court. The evidence concerning recovery of MOs.1 and 2 was discarded by the trial court and that would show that the case of the prosecution is wrong. There is no proper identification of the 1[st] accused. It is not proved that the house where the incident allegedly occurred belongs to the 1[st] accused and that supports the defence case that he was falsely implicated. On those grounds, the learned counsel would canvass for setting aside the impugned judgment. 6 Crl.Appeal No.253 of 2013 6. The learned Public Prosecutor, on the other hand, would submit, after taking me through the oral evidence of PWs.1, 2 and 4, that there are no material contradictions in their evidence and therefore they can well be believed. It is submitted that the 1[st] accused was also an accused in Ext.P3 crime. As long as the 1[st] accused does not deny that fact, there cannot be any dispute as to his identity. Even in the absence of any proof regarding the ownership of the building, the case of the prosecution has to be accepted since occurrence has been duly proved. When PW4 was in uniform and PWs.1 and 2 were Excise Guards working under him, the fact that they were discharging their public duty cannot be controverted. Therefore, the learned Public Prosecutor urges that the contentions of the appellant, particularly, no offence punishable under Section 332 of the IPC is constituted is untenable. 7. Ext.P3 is the occurrence report in NDPS Crime No.3 of 2005 of Excise Range, Chathannoor. The 2[nd] accused in it is the 1[st] accused herein (appellant). PWs.1, 2 and 4 deposed in 7 Crl.Appeal No.253 of 2013 categorical terms that they went to the house in question for apprehending the 1[st] accused. In Ext.P3 the 1[st] accused was shown not arrested. PW1 during cross-examination explained that since the 1[st] accused was involved in a non-bailable offence, they tried to arrest him. The 1[st] accused was arraigned in this case in the same address as given in Ext.P3. He was brought to the court and tried in that address. There is no case that his address given in Ext.P3 is incorrect. PWs.1, 2 and 4 identified the 1[st] accused before the court. In the said circumstances, the appellant cannot be heard to contend that the person, who was attempted to be arrested by PWs.1, 2 and 4 was not him. Therefore, there is no doubt about his identity. 8. PW4 deposed that he along with his subordinates went to the house of the 1[st] accused for apprehending him. He narrated that on seeing the 1[st] accused sleeping in the southwestern room of the house, they approached him and tried to arrest. He resisted and using a steel hanger obtained from the top of the almirah there he assaulted PW2 first causing him an 8 Crl.Appeal No.253 of 2013 injury to his face. When attempted to apprehend, he attacked PW1 also using that hanger. It is his further version that the 2[nd] accused caused blockade at the door and attempted to restrain the arrest of the 1[st] accused. The 3[rd] accused also joined him and threatened the Excise party waving a chisel. It was in that course the 1[st] accused escaped from the said room. 9. The versions of PWs.1 and 2 regarding those overt acts are similar. They added as to how each of them sustained injuries in the attack by the 1[st] accused. The learned counsel for the appellant pointed out a few contradictions in their evidence that came out during cross-examination. Exts.D1 and D2 are contradictions in the evidence of PW1. Exts.D3 and D4 are the contradictions in the evidence of PW2. Ext.D1 is with respect to the fact whether or not accused Nos.1 and 3 ran away with the weapon. The effect of that contradiction was considered by the trial court and held that on account of that contradiction as well as want of independent evidence, recovery of MOs.1 and 2 effected by PW6 could not be believed. I find no reason to deviate from the said findings. 9 Crl.Appeal No.253 of 2013 10. The other contradictions are essentially regarding the chronology of the incident. The contradictions concerning the overt act of the 2[nd] accused, whether blood oozed out and the dress of the injured blood stained, etc. are not material. On a detailed consideration of the evidence of PWs.1, 2 and 4, it can certainly be said that those contradictions are not with respect to the material particulars, and do not have the effect of discrediting those witnesses. 11. In the wound certificates, Exts.P1 and P2, the cause of injury stated is not as stated by the injured before the court. Both PWs.1 and 2 deposed in court that they were attacked by the 1[st] accused using a steel hanger. What PW1 stated to the Doctor, PW3, was that he was fisted, while PW2 stated that he was beaten up by using a wooden plank. Time of incident stated in Ext.P1 is also discrepant inasmuch as it is noted as 9.45; whereas the time of occurrence is 2.45 p.m. In Ext.P2, however, the time of incident is stated as 2.45 p.m. PW3 during examination explained that the time was noted in Ext.P1 mistakenly. Both PWs.1 and 2 were examined by PW3 10 Crl.Appeal No.253 of 2013 at 3.05 p.m. on the same day. If so, the time of occurrence could not be 9.45 p.m., it can only be a prior time. When PWs.1, 2 and 4 deposed before the court that the incident occurred at 2.45 p.m. on 21.06.2005, what is noted in Ext.P1 can only be a mistake and it does not have any bearing on the reliability of the witnesses. 12. The weapon mentioned before the doctor is wooden plank whereas, PWs.1 and 2 deposed that they were attacked using a steel hanger. It may be noted that at about 4.15 p.m. PW5 reached Holy Cross Hospital where PWs.1 and 2 were undergoing treatment and recorded Ext.P4 F.Istatement from PW1. In Ext.P4 it was stated that PWs.1 and 2 were attacked by the 1[st] accused using a steel hanger. When Ext.P4 statement was also given soon after the incident, what the Doctor noted in Exts.P1 and 2 is a misdescription and that does not affect the credibility of the said witnesses. 13. It is true that the evidence concerning recovery of MOs.1 and 2 cannot be acted upon. PWs.1 and 2 as well as 11 Crl.Appeal No.253 of 2013 PW4 deposed that the injuries were inflicted using a weapon and PW3 opined that the injuries could be caused in an attack using a weapon. In the light of that evidence, the findings of the trial court that the injuries were inflicted using a weapon is not open to challenge. Moreover, the injury sustained by PW1 was a contusion having a dimension of 4 x 2 cm. above the eyelid. That cannot ordinarily be the result of a fisting or slapping. PW2 had a lacerated wound and contused abrasion on his scalp. Those injuries could ordinarily be caused by an attack using some blunt object. Therefore, the medical evidence corroborates the oral testimonies of P.Ws.1 and 2. Hence, the charge that PWs.1 and 2 were attacked and inflicted injuries by the 1[st] accused using a weapon stands proved. 14. Non-examination of any independent witness does not affect the credibility of PWs.1, 2 and 4 for, the incident had occurred inside a room. PW6 explained that the neighbours were questioned and nobody claimed to have seen the incident. The learned counsel for the appellant still would 12 Crl.Appeal No.253 of 2013 submit that PWs.1, 2 and 4 are officials and their uncorroborated testimonies cannot be acted upon. The Apex Court in **Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311]** held that,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” In **Baldev Singh vs State of Haryana [(2015) 17 SCC** **554]** the Apex Court reiterated that view. Therefore, nonexamination of neighbours or persons assembled at the place would not affect credibility of P.Ws 1, 2 and 4. 15. No document is produced by the prosecution to prove that PWs.1 and 2 were on duty at the time of occurrence. The contention of the learned counsel for the 1[st] accused is that in the absence of any material or document in 13 Crl.Appeal No.253 of 2013 that regard an offence under Section 332 of the IPC cannot be attracted. In that regard, the learned counsel places reliance on the judgment dated 06.12.2017 in Crl.R.P.No.2893 of 2003 ( **Cherian Skaria v. State of Kerala** ). It was held by this Court that when the accused questions the status of the injured as a public servant and he failed to produce any document showing his status as a public servant, it may not be possible to find commission of an offence under Section 332 of the IPC. In that case the injured was a Deputy Collector. A stranger cannot understand that such a person is a public servant or on public duty. In that context the necessity to produce documents to prove the injured was a public servant was emphasised. 16. The scenario here is totally different. PW4 was in uniform. PWs.1 and 2 reached the house along with PW4 and attempted to apprehend the 1[st] accused. The fact that the 1[st] accused is involved in Ext.P3 crime stands established. While attempting to apprehend, the 1[st] accused attacked and inflicted injuries to PWs.1 and 2. Although they were not not 14 Crl.Appeal No.253 of 2013 in uniform, the evidence came on record proved that PWs.1 and 2 were public servants and on duty at the time of occurrence. Therefore, the contention of the learned counsel for the petitioner in this regard cannot be accepted. 17. Similar is about the non production of any document concerning ownership of the house where the incident occurred. Even if the house does not belong to the 1[st] accused, he was found inside that house, and while PWs.1 and 2 along with PW4 were attempting to apprehend him the incident occurred. Whether or not the house belongs to him, the attack and infliction of injury to PWs.1 and 2 amount to an offence. Therefore, lack of evidence regarding ownership of that house does not have any bearing in the case of the prosecution. Accordingly, the finding of guilt of the 1[st] accused by the trial court is confirmed. 18. The 1[st] accused was sentenced to undergo rigorous imprisonment for a period of six months. The learned counsel canvasses to alter the sentence to fine. Considering the nature and gravity of the offence, I am unable to accept the 15 Crl.Appeal No.253 of 2013 said plea. However, considering the delay occurred after the incident and also other mitigating circumstances, the term of sentence can be reduced to three months. 19. Accordingly the appeal is allowed in part. While confirming the conviction, the sentence is altered and the appellant is sentenced to undergo rigorous imprisonment for a period of three months. Set off is allowed under Section 428 of the Code. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr