Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 82 (HP)

SUSHEEL KUMAR v. RAM NARAYAN

2003-04-21

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J. (Oral): - The judgment of acquittal, recorded by the learned Chief Judicial Magistrate, Una, dated 22.8.1998, is assailed by he complainant Sushi! Kumar in this revision petition. 2. It appears, respondents Ram Narayan Prabhakar and Vijant Bhardwaj, hereinafter referred to as A-1 and A-2, were prosecuted for offences punishable under Sections 353, 332 and 506 of the Indian Penal Code. 3. The case of the prosecution appears to be: 4. Complainant Sushi! Kumar was posted as Clerk in the office of District Ayurvedic Officer, Una, at the relevant time. On 5.7.1993, A-1 who was Medical Officer at Government Ayurvedic Hospital, Gondpur, visited the office of the District Ayurvedic Officer, Una at about 1 p.m. to collect the salary. He entered the room of the complainant and started abusing. Complainant ask to desist from abusing I A-1 picked up his Chappel and gave beatings to the complainant. In the process, cloths of the complainant were torn. A-2 Vijant Bhardwaj, who happened to be brother-in-law of A-1, abused the complainant. 5. Learned trial Magistrate noticed that the incident took place on 5.7.1993 whereas the complaint reached at Police Station, Una, on 8.7.1993. Though the report was lodged with the police on 5.7.1993 itself yet the complainant chose to be medically examined as a private person and produced medical certificate on 8.7.1993 when this case was registered by the police. 6. Sushil Kumar (PW-2) was Assistant in the Office of the District Ayurvedic Officer, Una. He was present at the relevant time. It is his evidence that an argument took place between the complainant and A-1. He further stated that A-1 threatened the complainant to come out and he would see him. It is his further evidence that the other co-accused was also arguing with th,e complainant. He deposed that he was not aware as to what arguments ensued between the complainant and accused, as he was busy in his own work. Though it is stated that the clothes of the complainant were torn but neither the complainant nor any witness stated about the clothes having been torn. The complainant merely stated that he was given beatings with Chappel. Evident as it is the ciothes would not be torn by beatings with Chappel. 7. The other witness did not support the prosecution case. The complainant merely stated that he was given beatings with Chappel. Evident as it is the ciothes would not be torn by beatings with Chappel. 7. The other witness did not support the prosecution case. Sushil Kumar (PW-4) who, according to the prosecution case, was present in the office at that point of time candidly stated that nothing happened in his presence. Similarly, Vinod Kumar, who is also stated to be an eyewitness, did not support the prosecution case. It is his evidence that no quarrel took place in his presence. To the same effect is the evidence of Roshan Lal, Pradhan of the Gram pa it, who was also present at the time of incident. 8. Accused examined Dr. Rajinder thakur as DW-1. It is his evidence that he had come to the Office to collect pay of the staff. According to him, A-1 had app compensatory leave which was converted by the complainant into causal leave and A-1 was inquiring from the complainant as to why he did so. It has his evidence that A-2 was not present on the spot. 9. Learned trial Magistrate took a view that the evidence led by the prosecution was not reliable and accordingly acquitted the accused. 10. The State did not file any appeal. It is in this background that the complainant has filed the present revision petition. 11. I have heard Mr. Ashok Chaudhary, learned Additional Advocate General and Mr. Subhash Sharma, learned Counsel for respondents No. 1 and 2. 12. Section 353 of the Code is a punitive provision providing for punishment for assault or use of criminal force to deter a public servant from discharge of his duty. Section 353 of the Code may be reproduced for convenience. "353. Assault or criminal force to deter public servant from discharge of his duty: Whoever assaults or uses criminal case 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. 13. 13. A bare perusal of the provision show that the assault or intimidation must be with intent to prevent or deter the public servant from discharging his duty as such public servant. The test in such cases is whether the public servant concerned at the time was lawfully discharging the duty imposed on him by law. If the public servant was not discharging his duty imposed on him by law and if he was not doing his duty as lawfully expected from him, then assault on such public servant would not fall within the mischief of Section 353 of the Code. Such an act may fall, in the given circumstances, under Section 352 of the Code. 14. In D. Chattaiah and another v. State of Andhra Pradesh, AIR 1978 SC 1441 the assault was not committed in consequence of anything done or attempted to be done as a public servant but was due to personal grudge against such public servant. In the facts, it was held that Section 353 of the Code was not applicable. There is no evidence on record to show that any of the accused assaulted the complainant so as to deter him from discharging his legal duties. In D. Chattaiah, a public servant was assaulted while in the office as a sequel of an earlier private quarrel and the assault had not real nexus or casual connection with the performance of the public servants duty as public servant. It was in this background that the Apex Court observed that the assault had no nexus or connection or relation with the performance of the public servants duty as public servant and, therefore, provisions of Section 353 would not be attracted. 15. In the facts of this case, as disclosed in the evidence. Section 353 of the Code is not attracted. 16. This apart, the learned trial Magistrate was right in not relying upon the sole evidence of the complainant to acquit the accused particularly when the other eye witness did not support him. 17. There is no merit in this revision petition, which is dismissed.