RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner, the first accused in C.C. No. 401/1993 on the file of Judicial First Class Magistrate's Court, Ranni, along with accused 2 and 3, were convicted and sentenced for the offence under Section 332 read with Section 34 of Indian Penal Code. They challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A. No. 97/1996. Learned Additional Sessions Judge, on re-appreciation of evidence, found that names of accused 2 and 3 were not mentioned before the doctor or in Exhibit P1 F.I. Statement and evidence of PWs 1 to 4 that they identified accused 2 and 3 cannot be believed Their conviction was, therefore, set aside and they were acquitted. But, learned Additional Sessions Judge relied on the evidence of PWs 1 to 3 and held that petitioner was one among the persons, who pelted stones on PWs 1 and voluntarily caused hurt to PWs 1 to 4. Therefore, his conviction for the offence under Section 332 of Indian Penal Code as well as the sentence were confirmed This revision is filed challenging the conviction and sentence. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard

(2.) Argument of the learned counsel is that courts below did not properly appreciate the evidence and on the evidence, it should have, been found that the case was foisted against the petitioner due to enmity. It was argued that, even according to PWs 1 to 4, there was enmity with the petitioner and in such circumstances, their evidence should not have been accepted. Learned counsel argued that the General Diary, which would show whether PWs 1 to 4 were on duty at that time, was not produced and mere is no material to prove that PWs 1 to 4 were discharging their official duty at 3 a.m. when the incident occurred and in such circumstances, conviction of the petitioner for the offence under Section 332 of Indian Penal Code is not sustainable. Reliance was placed on the decision of the Apex Court in D.Chattaiah v. State of A.P., 1978 AIR(SC) 1441 and it was argued that when there is no evidence to prove that hurt was caused with the intention to deter PWs 1 to 4 in discharging their official duty, conviction of the petitioner for the offence under Section 332 of Indian Penal Code is not sustainable. Learned counsel finally submitted that as the incident was in 1993, at this distant point of time, petitioner may not be sent to prison as the punishment provided is imprisonment or fine and therefore, the sentence may be modified to fine.

(3.) Learned Public Prosecutor pointed out that to attract an offence under Section 332 of Indian Penal Code, the fact that PWs 1 to 4 were public servants and petitioner voluntarily caused hurt to them, while they were discharging their duty as public servants, will be sufficient and in such circumstances, it is not necessary to prove that intention of the petitioner was to deter PWs 1 to 4 from discharging their official duty. It is also argued that evidence of PWs 1 to 4 establish that though they were returning from patrol duty, their duty ends only on reaching the station and in such circumstances, when there is evidence to prove that PWs 1 to 4 sustained hurt and petitioner was one among the persons, who voluntarily caused hurt and at that time, PWs 1 to 4 were discharging their official duty and therefore, conviction of the petitioner is perfectly legal.