The revision petitioner was tried by the learned District Munsif-cum-Judicial Magistrate, Orthanadu, Tanjore District, in C.C.No.27 of 2007, for the offences punishable under Sections 294-B and 353 I.P.C. The Trial Court by Judgment, dated 04.12.2007, had found the petitioner not guilty for the offence under Section 294-B I.P.C., and accordingly, acquitted him under Section 255(i) Cr.P.C., from the said charge, however, found the petitioner guilty for the offence under Section 353 I.P.C., and convicted him to undergo one year rigorous imprisonment. Challenging the same, the petitioner / accused had preferred an appeal in C.A.No.118 of 2007, before the learned Additional District Sessions Judge and E.C.Special Judge, Tanjore District, and the Appellate Court, by Judgment dated 08.05.2008, confirmed the conviction, however, set aside the sentence and imposed a fine of Rs.10,000/- , in default, to undergo two months simple imprisonment. Against the said Judgment, the revision has been filed by the petitioner / accused.
2. The case of the prosecution is that on 12.01.2006, at about 05.00 p.m., when P.W.1 / Sub-Inspector, Thiruvonam Police Station, was on duty at the Police Station, the petitioner / accused came to duty in a drunken stage and when P.W.1 questioned the petitioner / accused, he quarreled and abused P.W.1 in filthy language in the presence of P.Ws.2 to 5, who are none other than the Head Constables and Para Duty Constable. Immediately, P.W.1 informed the same to P.W.6 / Inspector of Police. Thereafter, on the next day i.e., 13.01.2006, at about 06.00 p.m., the petitioner / accused came to the Police Station and abused P.W.1 in filthy language in the presence of P.Ws.3 and 4 / Para Duty Constable and Head Constable and thereby, the petitioner / accused was charged for the offence punishable under Sections 294-B and 353 I.P.C. The petitioner / accused had denied the charges framed as against him and trial was conducted and on the side of the prosecution, six witnesses were examined as P.Ws.1 to 6 and three documents were marked as Exs.P1 to P3. After completion of the trial and after examining the oral and documentary evidence, the Trial Court, by Judgment, dated 04.12.2007, found the petitioner / accused not guilty for the offence punishable under
Section 294- B I.P.C., and acquitted him from the said charge by giving benefit of doubt, however, found the petitioner / accused guilty for the offence under
Section 353 I.P.C., and convicted and sentenced him for the said offence as stated above and the period during which, the petitioner / accused was in remand was directed to be set off.
3. Challenging the conviction and sentence imposed by the Trial Court, the petitioner / accused preferred an appeal in C.A.No.118 of 2007, before the learned Additional District Sessions Judge and E.C.Special Judge, Tanjore District and the Appellate Court, after hearing both sides and carefully perusing the entire materials placed on record, by Judgment dated 08.05.2008, confirmed the conviction, however set aside the sentence imposed by the Trial Court and imposed a fine as stated above. Challenging the same, the present revision has been preferred by the petitioner / accused.
4. The learned counsel appearing for the petitioner / accused submitted that the Court below had erred in relying upon the prosecution evidence, which is inadequate and suffers from serious infirmities and thereby, the impugned Judgment is inconsistent and liable to be set aside.
5. Further, the learned counsel for the petitioner / accused submitted that the case on hand is foisted against the petitioner / accused due to enmity in the Department and P.Ws.1 to 5, who are official and interested witnesses and who are inimical towards the petitioner / accused, have deposed against the petitioner / accused. It was the further contention of the learned counsel for the petitioner / accused that the evidence of the witnesses do not corroborate with each other and there are material contradictions in the evidence of the witnesses, thereby making the prosecution case false.
6. The further argument put forth by the learned counsel for the petitioner / accused is that even assuming for a moment the entire evidences of the witnesses taken to be true, no case has been made out against the petitioner / accused for the offence under
Section 353 I.P.C., and thereby, both the Courts below erred in convicting the petitioner / accused. The learned counsel further submitted that to make out a case for
Section 353 I.P.C., there should be ingredients that the petitioner / accused assaulted or used criminal force to a public servant and that the public servant at the time of offence was acting in discharge of a duty imposed on him by law and that in this case, there is absolutely no evidence that the petitioner / accused had either assaulted or used criminal force on the public servant. Furthermore, all the witnesses in unison had deposed that there was only a wordy quarrel and nothing more than that and they have not stated that the petitioner / accused touched or pushed the de facto complainant or that the petitioner / accused had caused motion or change of motion or cessation of motion of P.W.1. Further, though the alleged occurrence of abusing P.W.1 in filthy language is stated to have been taken in the Police Station and when charge was also framed against the petitioner / accused for offence under
Section 294(b) I.P.C., the Appellate Court had acquitted the petitioner / accused since P.Ws.2 to 5 had not deposed anything in evidence with regard to the same fact. In such case, when there is absolutely no material that the petitioner / accused either assaulted or used criminal force, the Courts below ought to have acquitted the petitioner / accused. Hence, for all these grounds the learned counsel prayed for acquittal of the petitioner / accused from the charges levelled against him.
7. In support of his contentions, the learned counsel for the petitioner / accused placed reliance upon the decision in Jayaseeli v. State, reported in (2010) 3 MLJ (Crl) 269.
8. The learned Additional Public Prosecutor submitted that both the Courts below, after carefully perusing the oral and documentary evidence adduced and hearing the arguments advanced on either side, convicted the petitioner / accused. The charges levelled against the petitioner / accused have been categorically proved by the prosecution witnesses. Furthermore, there is no infirmity in the prosecution evidence and there is no contradiction in the evidence deposed by P.Ws.1 to 5 and their evidence has been corroborated with each other. Hence, the impugned Judgment of the Court below does not call for any interference from this Court and the revision preferred by the petitioner / accused is not maintainable and it is liable to be dismissed.
9. I have heard the learned counsels on either side and perused the materials placed on record.
10. It is profitable to refer to the following provisions of the Indian Penal Code:
349. Force.? A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other?s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other?s sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described:
First. ? By his own bodily power.
Secondly. ? By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
Thirdly. ? By inducing any animal to move, to change its motion, or to cease to move.
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.
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 an assault. Explanation.? Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.
353. Assault or criminal force to deter public servant from discharge of his duty.?Whoever 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 punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
11. Analyzing the entire evidence, it is seen that there is nothing on record to show that the petitioner / accused used criminal force, much less force on the de facto complainant so as to bring the case within the ambit of offence under
Section 353 I.P.C.
12. In Jayaseeli v. State's case (cited supra), this Court has held as follows:
?7. As far as the charge under
Section 353 IPC is concerned, before considering the evidence on record, it will be useful to refer to
Section 353 IPC which reads as follows:
?353. Assault or criminal force to deter public servant from discharge of his duty.?Whoever 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 punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.?
A reading of the above provision shows that the essential ingredients of the offence under
Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. Therefore, the main ingredients of the offence is that the accused should be shown to have assaulted the public servant or used criminal force.
8. In the decision Durgacharan v. State of Orissa AIR 1966 SC 1775 (V 53 C
358) : (1967) 1 MLJ (Crl) 537, it has been laid down that under
Section 353 of the Indian Penal Code, the ingredients of assault or use of criminal force while the public servant is doing his duty as such is necessary. In the decision Chandrika sao v. State of Bihar AIR 1967 SC 170, the Supreme court has laid down that mere use of force, however is not enough to bring an Act within the terms of S.353, IPC. It has further to be shown that force was used intentionally to any person without that person's consent in order to commit an offence or with the intention or with the knowledge that the use of force will cause injury, fear or annoyance to the person against whom the force is used.
13. In a later decision, the Honourable Supreme Court in Manik Taneja and another vs. State of Karnataka and another, reported in (2015) 7 SCC 423 has held as follows:
?A reading of the above provision shows that the essential ingredients of the offence under
Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, the ingredients of the offence under
Section 353 IPC are not made out.?
14. In view of the above, when no criminal force much less force has been used on the de facto complainant, the Courts below erred in convicting the petitioner / accused for the offence under
Section 353 I.P.C., thereby the Judgments of the Courts below are liable to be set aside.
15. In the result, the criminal revision is allowed and the Judgment, dated 08.05.2008, made in C.A.No.118 of 2007, on the file of the Additional District Sessions Court and E.C.Special Court, Tanjore District, confirming the Judgment, dated 04.12.2007, made in C.C.No.27 of 2007, on the file of the District Munsif-cum-Judicial Magistrate, Orthanadu, Tanjore District, are set aside. The petitioner is acquitted from the charges framed against him. The fine amount, if any, paid by the petitioner is directed to be refunded to him and the bail bond executed by the petitioner shall stand cancelled.
To:
1.The Additional District Sessions and E.C.Special Judge, Tanjore District.
2.The District Munsif-cum-Judicial Magistrate, Orthanadu, Tanjore District
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Inspector of Police, Tiruvonam Police Station, Tanjore District.
.