Johnson John, J
1. This appeal is filed by the accused in S.C. No. 442 of 2004 on the file of the Additional Sessions Judge (Adhoc-I), Manjeri against the conviction and sentence passed against him for the offence under Section 332 IPC as per the impugned judgment dated 03.10.2007.
2. As per the prosecution case, the appellant herein is the second accused in Crime No. 468 of 2004 of Nilambur Police Station and as per the final report, the appellant, along with the co-accused (first accused), voluntarily caused grievous hurt to CW1 and other police officers of Nilambur Police Station by beating and kicking them on 11.08.2014 at about 9.45 p.m. in furtherance of their common intention to prevent the police officers from discharging their official duties and during the course of the same transaction and in furtherance of their common intention, they also caused hurt to CW2 and the incident occurred at the compound of Urvasi Bar on the side of Vazhikadavu Manjeri public road and the accused is thereby, alleged to have committed the offence under Sections 333 and 332 r/w 34 IPC .
3. On the basis of Exhibit P1 First Information Statement of PW1, Exhibit P1(a) FIR was registered by PW8, Sub Inspector, and thereafter, he conducted the investigation and filed the final report.
4. When the accused appeared before the trial court, after hearing both sides, charge was framed for the offences under Sections 333 and 332 r/w 34 IPC and when the charge was read over and explained to him, he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 9 and marked Exhibits P1 to P13 and MO1 to prove the charge against the accused. After the closure of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C and he denied all the incriminating circumstances appearing against him and maintained that he is innocent. Since the trial court found that the accused is not entitled for an acquittal under Section 232 Cr.P.C.,he was called upon to enter on his defence. But, no evidence was adduced from the side of the accused.
5. After considering the oral and documentary evidence on record and after hearing both sides, the learned Additional Sessions Judge, by the impugned judgment dated 03.10.2007, convicted and sentenced the accused to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000/- for the offence under Section 332 IPC and he is found not guilty of the offence under Section 333 IPC.
6. Heard Sri. Babu S. Nair, the learned counsel for the appellant and Smt. Nima Jacob, the learned Public Prosecutor.
7. The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused is legally sustainable.
8. The learned counsel for the appellant argued that even though the trial court recorded a specific finding in paragraphs 20 and 23 of the impugned judgment that the prosecution has not succeeded in proving that the appellant herein shared any common intention with the absentee, first accused, for committing the alleged overt acts, the trial court recorded a finding that the appellant herein caused simple hurt to CW2 so as to prevent him from discharging his official duties and the said finding was made, despite the fact that the prosecution has not examined CW2 as a witness in this case and also without considering the serious omissions and inconsistencies in the evidence of PWs 1 and 2 regarding the occurrence.
9. It is also pointed out that the evidence of PWs 1 and 2 before the court regarding the place of occurrence and the overt acts committed by the appellant does not tally with Exhibit P1, First Information Statement, and that the trial court ought to have found that the appellant/second accused is entitled for the benefit of reasonable doubt.
10. The learned Public Prosecutor supported the impugned judgment and argued that the evidence of PWs 1 and 2 regarding the occurrence is supported by medical evidence and there is no valid ground to interfere with the impugned judgment.
11. PW1 deposed that on 11.08.2004, he was working as ASI in Nilambur Police Station and at about 9.30 p.m., on that day, he got information about a fight in Urvasi Bar, Nilambur and along with CWs 2 to 5, he proceeded to the said Bar in police jeep and on reaching there, accused Nos. 1 and 2 are seen near the counter of the Bar and there was a bleeding injury on the head of the first accused. PW1 stated that both the accused were taken near the police jeep and when they were asked to enter the jeep, the appellant/second accused obeyed the direction and entered the jeep; but the other accused refused to enter the jeep and he became suddenly enraged and after pushing down CW2, the first accused ran towards the parking space and when CW2 chased the first accused, the first accused caught on the shirt collar of CW2 and torn the uniform flap and the said accused also beat PW1 on his face. According to PW1, at that time, the appellant/second accused stepped down from the jeep and beat CW2 on his back with hand.
12. In cross examination, PW1 admitted that nobody caused hurt to them, while they were inside the Bar and that they sustained injuries while they were in the parking area of the Bar. PW1 admitted that he was well aware of the said fact at the time of giving Exhibit P1 statement; but he has nothing to say when it is pointed out that the said fact is not stated in Exhibit P1 First Information Statement. When it is brought to the notice of PW1 that it is also not stated in Exhibit P1 that the appellant/second accused stepped down from the jeep and beat CW2, the witness answered that it may be an omission.
13. PW2 was a probationary Sub Inspector at Nilambur Police Station on 11.08.2014. According to PW2, on that day, after 9.30 p.m., PW1 got information about a fight in Urvasi Bar, Nilambur and he also accompanied PW1 in the police jeep and when they reached the Bar, they saw two persons coming towards the counter of the Bar and one of them was having a bleeding injury on his head. PW2 also deposed that the second accused obeyed their direction and entered the jeep; but, the first accused pushed down CW2 and ran towards the parking area. According to PW2, at that time, the second accused stepped down from the jeep and beat CW2 on his back with hand.
14. In cross examination, PW2 would say that the appellant/second accused obeyed their direction to enter the jeep only after they repeated the direciton 5 or 6 times and that when the second accused resisted, they forcibly made him to enter the jeep. The learned counsel for the appellant pointed out that PW1 has no case that the appellant/second accused made any resistance, when he was asked to enter the jeep and the evidence of PW1 clearly shows that the second accused obeyed the direction of police officers and entered the police jeep without any resistance and therefore, I find force in the argument of the learned counsel for the appellant that the exaggerated version of PW2 in cross examination regarding the resistance of the appellant/second accused for the first time in court cannot be relied upon.
15. PW3 is a witness to Exhibit P2 scene mahazar. PW4 was working as Radiologist at KIMS Hospital, Thiruvananthapuram and he proved Exhibit P3 CT scan report of PW1. The evidence of PW4 and Exhibit P3 CT scan report shows that PW1 came to the hospital with the history of hit over the table. The evidence of PW5 and Exhibit P4, discharge certificate of PW1, shows that PW1 was admitted in Amala Hospital, Thrissur on 14.08.2004 and discharged on 15.08.2004.
16. PW6 is a witness to Exhibit P5 mahazar and PW7 is a witness to Exhibit P6 mahazar. PW9 was the doctor who examined PW2 on 11.08.2004 at Taluk Head Quarters Hospital, Nilambur and issued Exhibit P12 wound certificate. The evidence of PW9 and Exhibit P12 shows the alleged history as follows:
“屲 爾屲 爿 അ屲爿 ന屲ἀ屲牍屲 ന്ന屲爾屲牛爿 പ屲ぜ爾屲爿 屲 爿屲牍屲 . അ屲尨屲䵜爵屲屲㝜爿屲牍屲 屲牆ന്ന സമ屲一屲牍屲 屲 牃屲牍 屲尨 വഹണ屲牍屲屲尨屲␀屲ἀ屲㡜牍屲㡜 ഉ屲⍜牍屲 屲牍屲 . മര്屲♜爿ച്ചവ屲ぜ爿 വ屲牍屲屲 屲⍜牍屲 അ屲 爿屲牛爾屲 ന്ന 屲 ണ്ട് 屲片േപ 屲片േ 屲尨屲䵜 സമ屲牛爂 9.45 p.m on 04.08.2004 at Urvasi Bar.”
17. It is pertinent to note that the trial court recorded a specific finding that the prosecution has not succeeded in proving that there was a common intention for the accused persons in committing the alleged overt acts. The evidence of PW8 in cross examination also shows that in connection with the fight that occurred inside the Bar, case and counter case are filed against the accused persons.
18. It is well settled that common intention refers to the agreement between the accused persons to commit a criminal act and therefore, if the alleged criminal act is an independent act springing wholly from the mind of the doer, the others are not liable, merely because when it was done they were intending to be partakers with the doer in a different criminal act. In this case, it is pertinent to note that apart from the allegation that the appellant/second accused stepped down from the jeep and beat on the back of CW2 with his hand, there is no other evidence or allegation to show that the appellant/second accused prevented the police officers from discharging their duties at the time of occurrence.
19. The learned counsel for the appellant pointed out that the evidence of PWs 1 and 2 regarding the occurrence does not tally with Exhibit P1, First Information Statement, and that as per Exhibit P1, when the police party reached the Bar, there occurred 2 incidents i.e., one inside the Bar and the other inside the jeep while the accused are being taken to the hospital. It is stated in Exhibit P1 FIS that when the police officials attempted to remove the accused persons from the Bar, the first accused caught on the shirt collar of the probationary Sub Inspector, Santhosh, and pushed him down and the other accused beat him with hand. The second incident alleged in Exhibit P1 is that while the accused are being taken to the hospital in the jeep, the first accused beat PW1 on his right cheek with a footwear and when PW1 resisted the attack, the first accused also beat probationary Sub Inspector, Ismail on his head. Therefore, it can be seen that the evidence of PWs 1 and 2 regarding the occurrence does not tally with Exhibit P1 First Information Statement.
20. Even though an FIR is not a piece of substantive evidence, the same is the most immediate and first version of the incident and has great value in ascertaining the truth. It cannot be disputed that great importance is attached to a prompt FIR, as it reduces the chances of improvement in the prosecution story.
21. The only overt act alleged against the appellant/second accused is that he beat on the back of CW2 with hand. But, it is pertinent to note that CW2 is not examined as a witness in this case and further, there are serious omissions amounting to contradiction in the evidence of PWs 1 and 2 and their evidence also does not tally with Exhibit P1, First Information Statement, and in that circumstance, I find that the accused is entitled for the benefit of reasonable doubt and the impugned judgment is liable to be set aside.
In the result, this appeal is allowed and the conviction and sentence passed by the trial court against the appellant/accused for the offence punishable Section 332 of IPC as per the impugned judgment is set aside and the accused is acquitted under Section 235(1) Cr.P.C. His bail bond shall stand cancelled and he is set at liberty forthwith.
