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Madhya Pradesh High Court · body

2004 DIGILAW 888 (MP)

Rakesh Tiwari v. State of M. P.

2004-11-03

A.K.SHRIVASTAVA

body2004
Judgment ( 1. ) THIS appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 against his judgment of conviction and order of sentence dated 14-11-1990 passed by the 1st Additional Sessions Judge, Shahdol in Sessions Trial No. 27 of 1989 convicting the appellant under Section 332, IPC and sentencing him to suffer rigorous imprisonment of six months and fine of Rs. 1,000/-, in default of payment of fine amount further rigorous imprisonment of two months. ( 2. ) IN brief the case of the prosecution is that on 28-3-1988 at 13. 30 hours when complainant N. L. Shivhare (P. W. 1), Executive Engineer of P. W. D. was discharging his official duty at that juncture accused/appellant Rakesh Tiwari arrived in his office and showered filthy abuses of mother and sister as he (appellant) was transferred and a departmental enquiry was set up against him. Thereafter he uplifted a wooden rack and gave its blow on the person of the complainant, though he tried to escape but failed, as a result of which the said rack which was used as a weapon landed on his head and eventually he sustained injuries and blood came out. The incident was witnessed by Laxminarain Agrawal, Hardev Tiwari and Ramsurat Singh. ( 3. ) AFTER the incident took place, the complainant went to District Hospital, Shahdol where he was attended, treated and examined by Assistant Surgeon, Dr. Ashok Kumar Gautam (P. W. 3) at 13. 45 hrs. and he found an injury 2" x 1/2" bone deep lacerated wound on his right fronto parietal region. The doctor further noticed another injury on his right forearm 1 1/2" x 1/4". According to the doctor, both the injuries were caused by hard and blunt object. The doctor also informed the matter to police, as a result of which P. P. S. Chouhan, who was serving as an Assistant Sub Inspector in Police Station, Shahdol came to the hospital and recorded the statement of the complainant. ( 4. ) ON lodging of the FIR the criminal law was triggered off and set in motion. The Investigating Officer seized the wooden rack which was used as a weapon in the commission of offence; seized the other articles like table glass etc. ; recorded the statements of the witnesses and seized certain papers. ( 5. ( 4. ) ON lodging of the FIR the criminal law was triggered off and set in motion. The Investigating Officer seized the wooden rack which was used as a weapon in the commission of offence; seized the other articles like table glass etc. ; recorded the statements of the witnesses and seized certain papers. ( 5. ) AFTER completing the investigation a charge-sheet was submitted in the Competent Court which on its turn committed the case to the Court of Session where it was received by the Trial Court for trial. ( 6. ) THE Trial Court, on bare perusal of charge-sheet framed a charge under Section 333, IPC which the accused/appellant denied and requested for the trial. ( 7. ) IN order to prove the charge, the prosecution examined as many as 9 witnesses and placed Exs. P-1 to P-10, the documents, on record. ( 8. ) THE Trial Court after appreciating and marshalling the evidence minutely came to the conclusion that the appellant committed the offence punishable under Section 332, IPC and eventually convicted him and passed the sentence which I have mentioned hereinabove. Hence this appeal. ( 9. ) IN this appeal, Shri Manish Datt, learned Counsel appearing for the appellant has vehemently contended that if the evidence of prosecution is considered in its entirety, no offence under Section 332, IPC is proved and, therefore, learned Trial Judge erred in convicting the appellant. In support of his arguments, learned Counsel has placed reliance on the decision of the Apex Court in the case of D. Chattaiah V. State of A. P. ( AIR 1978 SC 1441 ). On this premised argument it has been contended by the learned Counsel for the appellant that the appeal be allowed and conviction of the appellant be set aside. ( 10. ) AN alternate submission has also been putforth by the learned Counsel for the appellant that since the incident had taken place on 28-3-1988, the benefit of Sections 3 and 4 of the Probation of Offenders Act be extended to the appellant. ( 11. ( 10. ) AN alternate submission has also been putforth by the learned Counsel for the appellant that since the incident had taken place on 28-3-1988, the benefit of Sections 3 and 4 of the Probation of Offenders Act be extended to the appellant. ( 11. ) COMBATING the aforesaid submission of the learned Counsel for the appellant, Sushri Vijaya Bhatnagar, learned Counsel appearing for the State has contended that on the basis of evidence and material placed on record, the Trial Court rightly found the offence to be proved and did not commit any error in convicting the appellant and passing the sentence. In reply to alternate submission, it has been contended by her that if a Govt. servant in a Government office is allowed to behave with his superior officer in such a manner it would give a wrong lesson to other employees and, therefore, no leniency in sentence should be adopted by this Court. According to her, the appeal being sans merit, the same be dismissed. ( 12. ) IN order to consider rival contentions of the learned Counsel for the parties, I would like to discuss the evidence which has been placed on record. Before I appreciate and marshal the evidence it would be appropriate to re-write Section 332, IPC which reads thus :- "332. Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that 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 three years, or with fine, or with both. " In order to bring home the charge under this section, the prosecution is obliged to prove the following:- (i) that the accused voluntarily caused hurt; (ii) that the person so hurt was a public servant; (iii) that such public servant was then discharging his duties as such; (iv) that the accused did so with intent to prevent or deter such public servant or any other public servant from discharging his duties or that he did so in consequence of something done or attempted to be done, by such public servant, in the lawful discharge of his duty. On going through abovesaid provision, it is clear that Legislature has quoted several instances and if under any of such instance a person hurts a public servant he would come under the ambit and sweep of Section 332, IPC. ( 13. ) I shall now test the abovesaid enunciation of law on the anvil of present factual scenario and evidence. ( 14. ) THE star witness to the incident is complainant N. L. Shivhare (P. W. 1) himself. Though prosecution took pains to examine certain eyewitnesses, however, they did not support the prosecution case and turned hostile. However, merely supporting eye-witnesses have turned hostile would not dilute the case of prosecution if the evidence of complainant himself is worth reliable. ( 15. ) IN his testimony complainant N. L. Shivhare (P. W. 1) has specifically stated that on the fateful day the appellant entered in his chamber without obtaining any permission from him. It is no more in dispute that the complainant was serving on the post of Executive Engineer in the Office of P. W. D. as there is no cross-examination on that part of his statement. When the appellant entered without obtaining permission in the chamber of the complainant, he (complainant) noticed that the appellant was appearing to be aggressive and when he asked the purpose of coming in his chamber, the appellant replied that he wants to discuss with him. Thereafter the complainant allowed him (accused/appellant) to put his grievance. Thereafter the appellant put a question why the complainant had transferred him from the post of Auditor to Budget Clerk. The complainant pacified him that the senior officers are not satisfied with his work and, therefore, they had transferred him (accused/appellant ). Thereafter the complainant allowed him (accused/appellant) to put his grievance. Thereafter the appellant put a question why the complainant had transferred him from the post of Auditor to Budget Clerk. The complainant pacified him that the senior officers are not satisfied with his work and, therefore, they had transferred him (accused/appellant ). Thereafter the accused again put a second question that why he had set up a departmental enquiry and submitted a charge-sheet against him. In reply to this querry, the complainant said that he (accused/appellant) was possessing certain important documents which are missed and, therefore, in compliance to the direction of Superintending Engineer he has prepared a charge-sheet and he is obeying and following the directions of his superior officers. Thereafter the appellant became annoyed and lost his tamper and showered filthy abuses of mother and sister and said that he (complainant) will not be saved. Thereafter the appellant uplifted a wooden rack and threw it, as a result of which the complainant sustained injuries on his forehead and hand. On account of the injuries sustained by him blood came out. Thereafter complainant came out from his chamber. The co-employees, on account of fear, were unable to rescue him. Later on his driver Shivlal came to him and he asked to carry him at District Hospital. He also sent the message of the incident by telephone to this superior officers. In the hospital police party arrived and his statement was recorded. This witness was cross-examined at length but he remained vivid in his testimony. On going through the entire evidence of this witness only singular inference which can be drawn is that the appellant entered in the chamber of the complainant, who was not only serving on the post of Executive Engineer, but was also his officer. The moment he entered in the chamber of the complainant (without obtaining any permission), he was aggressive and though he was not supposed to ask questions from his officer in regard to his transfer and setting up charge-sheet for conducting a departmental enquiry, he asked questions in an unusual manner beyond the dignity of official ethics. Thereafter the appellant uplifted a wooden rack and threw it on the complainant. Thereafter the appellant uplifted a wooden rack and threw it on the complainant. The complainant though tried to save himself but failed, as a result of which the rack which was used as a weapon in the commission of the offence struck the forehead and hand of the complainant and he sustained injuries and blood came out. ( 16. ) THE evidence of complainant N. L. Shivhare (P. W. 1) is corroborated by the testimony of Dr. Ashok Kumar Gautam (P. W. 3), who examined him soon after the incident on the same day and noticed following injuries:- (i) Lacerated wound 2" x 1/2" bone deep over fronto parietal region of scalp; (ii) Bruise 1 1/2" x 1/4" across the ulna aspect of right forearm. According to the doctor both these injuries were caused by hard and blunt object. The doctor on being asked gave reply that those injuries may come if the wooden rack is used as a weapon. Thus, the evidence of the complainant is corroborated by the medical evidence also. ( 17. ) ON the basis of the evidence of complainant and doctor it is proved beyond all possible doubt that the appellant did cause the injuries by a wooden rack, as a result of which the complainant sustained injuries. ( 18. ) THE question is whether the act of the appellant would come under the ambit and sweep of Section 332, IPC. Shri Datt, learned Counsel for the appellant has placed reliance on the decision of the Supreme Court in the case of D. Chhataiah (supra ). On going through the said case it is revealed that it is tangentially off the point. In that case it was found that the complainant was not discharging the official duty and, therefore, it was held by the Apex Court that Section 332, IPC was wrongly applied. However, conviction was made under Section 323, IPC. Here in the present case the facts are entirely different. It is proved by cogent evidence of complainant N. L. Shivhare (P. W. 1) that he was in his office and performing official duty at 1. 30 P. M. the appellant entered inside his chamber, he was annoyed and aggressive. He altercated with him (complainant) and also showered filthy abuses of mother and sister and thereafter uplifted the wooden rack and threw it on the person of the complainant. 30 P. M. the appellant entered inside his chamber, he was annoyed and aggressive. He altercated with him (complainant) and also showered filthy abuses of mother and sister and thereafter uplifted the wooden rack and threw it on the person of the complainant. Thus, according to me, the act of the appellant would definitely come under the ambit of Section 332, IPC. In this view of the matter, since there is clear, cogent and trustworthy evidence of the complainant against the appellant, the Trial Court did not commit any error in convicting him under Section 332, IPC. I hereby affirm the finding and conviction accorded by the Trial Court. ( 19. ) NOW I shall deal the alternative submission putforth by the learned Counsel for the appellant. No doubt the incident took place on 28-3-1988, but the manner in which the appellant committed the said offence just to outrage the dignity and decorum of the office of Executive Engineer. He entered inside the chamber of complainant without obtaining any permission from him, he was annoyed and thereafter not only showered filthy abuses of mother and sister, but also uplifted a wooden rack and threw it on the complainant. In this state of affairs if any leniency is adopted it would amount to throttling the dignity and ethics of an office. However, instead of passing any jail sentence, it would be appropriate to enhance the amount of fine, which I enhance upto Rs. 5,000/- (Rs. Five thousand ). Let balance amount of fine Rs. 4,000/ (Rs. Four thousand) be deposited within two months, failing which the appellant shall undergo rigorous imprisonment of six months. ( 20. ) THE appeal is dismissed.