Murlidhar K. Virulkar vs State Of Maharashtra
2005 Latest Caselaw 337 Bom

JUDGMENT

A.H. Joshi, J.

1. This appeal is arising out of judgment of conviction and order of sentence passed in Sessions Case No. 175/94, dated 11th June, 1996. The learned Additional Sessions Judge, Amravati, held the accused guilty of offences punishable under Sections 332, 353 and 324 of Indian Penal Code and sentenced under Section 332 of Indian Penal Code for R.I. for six months and fine of Rs. 500/-.

2. The prosecution story is that the complainant Dadarao Sheshrao Bhumbar while serving in irrigation Department on Water Supply Tanker and while performing the work of supply of water during" the water scarcity, the accused person assaulted him with stick. According to the prosecution, the complainant tried to prevent the assault by use of iron rod known as Tomy, which effort of defence by the complainant also result in causing minor head injury to the accused person. According to the prosecution, the act of the accused in assaulting the complainant amounted to an act of causing assault and use of criminal force with an intention to deter the public servant from performing his official duty. The complainant reported the matter to the Police Station, Morshi and after recording the complaint, he was referred to the Medical Officer and the medical examination report was received. The Police filed chargesheet under Sections 332, 353 and 324 of Indian Penal Code.

3. As it is seen from the charge-sheet filed by the Police which is Exh. 16 of the Sessions Trial, in fact, the imputations contained in the charge-sheet spelt out the allegations that the "assault was a result of the complainant's having refused to provide water to the accused". After committal of case to Sessions Court and appearance of the accused, the learned Sessions Judge has framed the charge in which the imputations which were put against the accused in relation to offence under Sections 332, 353 and 324 read as follows :-

"FIRSTLY, that on 6-5-90 at 4.30 p.m. at Prashant Colony, Morshi, you voluntarily caused hurt to Dadarao Sheshrao Bhumbar, who was discharging his duties as a public servant by distributing water to the public and thereby committed an offence punishable under Section 332, of the Indian Penal Code and within my cognizance."

"SECONDLY, that on the aforesaid date, time and place you assaulted Dadarao Sheshrao Bhumbar, Government Driver on Water Tanker No. MTG-2290, working under Irrigation Department of Government of Maharashtra when he was discharging his duties of distribution of drinking water by the said Truck to prevent or deter such public servant from exercising his official duty or In consequence of your act of assault and thereby you have committed an offence punishable under Section 353 of the Indian Penal Code and within my cognizance.

THIRDLY, that on the aforesaid date, time and place you have voluntarily caused simple hurt to Dadarao Sheshrao Bhumbar by means of stick and thereby committed an offence punishable under Section 324 of the Indian Penal Code and within my cognizance.

And, I hereby direct that you be tried on the aforesaid charge.

Dated this on 23rd day of February, 1996."

4. The substance of charge as can be spelt out is that-

(i) Accused committed assault on Dadarao Sheshrao Bhumbar; and

(ii) The assault was committed with an intention to deter or prevent the complainant from discharge of his public or office duty and causing simple hurt by use of stick.

5. In support of the charge, the prosecution had examined the PW-1 -Complainant-Dadarao as witness of the incident and in addition, the Doctor who had examined the complainant Dadarao to prove the nature of injuries. Other witnesses are relating to assignment of duties to the complaint and relating to Panchnama etc. The case thus rests on evidence of PW-1-Dadarao.

6. In the oral testimony of PW-1-Dadarao, he has narrated the story of assault. However, Dadarao has not deposed in his statement that the act of assault caused either as a consequence of the complainant's having discharge certain public duties due to which the accused was aggrieved or that the assault was caused with an intention of preventing the complainant from discharge of his public duties or from deterring him therefrom. Taking reference from the investigation papers, the complaint as well as the charge-sheet, it was open to the prosecution to move the Sessions Judge to have altered the charge and proceeded with the trial, to render the charge to correspond to the contents of the F.I.R., investigation and charge-sheet. Even the learned Sessions Judge could have suo motu altered the charge. Had this been done so, this would have enabled the accused to have defence against such altered charge.

The learned trial Judge thus proceeded on the basis of charge of intention of deterring the complainant from discharging public duties.

7. After examining the evidence, the learned Sessions Judge has reached the conclusion and recorded the findings that the accused person was the aggressor and that the complainant was performing the official duty assigned to him and combining these two circumstances, the learned Judge recorded the finding that it was amply clear to him that the complainant who was discharging public duty was assaulted by the accused and thereby, the accused had committed the offence punishable under Section 332 of Indian Penal Code which is inclusive of Section 353 and Section 324 of Indian Penal Code.

8. It is clear from the evidence of PW-I -the complainant that the accused was required to face a trial for the charge for which no evidence whatsoever has been brought on record.

9. Law does not raise presumption that a public servant when assaulted while in discharge of public duty; that any assault or offence committed in relation thereto would or shall be liable to be "presumed to have been committed" in relation to performance of public duty by the complainant or that such offence was committed to deter or prevent the public servant from performing official or public duty.

10. It is well born on record, that the accused had already filed the case against the complainant and had resulted into a sessions trial under Section 307 of Indian Penal Code. The grievance of the present accused, who was the complainant in that case, was that the injury caused to his head due to the assault committed by the accused, who is complainant in the present case, which was part of the said incident. All that can be concluded in the present case is that whatever is the truth, that had led to the scuffle as remained away from the Court. It certainly goes without saying that present accused filed F.I.R. under Section 307 of Indian Penal Code and filing of a complaint by the complainant which has resulted into the trial under Sections 332, 353 and 324 of Indian Penal Code is counter blast to the said complaint.

11. In view of what is held above, that the charge of obstruction in discharge of public duty with intention to deter the public servant in performing his duties is not proved against the appellant-accused. The aspect of deterring public servant from discharging public duty thus being excluded. What remains is the assault under Section 324 of Indian Penal Code. To examine legality of conviction and sentence under Section 324 of Indian Penal Code, the other part of evidence of the complainant as to whether the injuries caused by the accused to the complainant need to be examined. In view of plea of appellant that he too had suffered hurt due to head injury requires to be attended to and his right of private defence comes into play. The evidence of complainant therefore needs cautious scrutiny and careful assessment. The injury suffered by complainant is too trivial and general and could be accidental as a consequence of defence by the accused. Moreover, since the prosecution evidence has failed to prove the crucial ingredients on Sections 332 and 353 of Indian Penal Code, the testimony of prosecution witness is impeached and the weight whatever thereto is lost. The story put up by the accused in the present case, as complainant in cross case, becomes available as a positive suggestion of self defence and is hereby accepted. The result is that the judgment and order passed by the Sessions Court calls for interference.

Appeal is accordingly allowed. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Amravati, in Sessions Case No. 175/ 94 is hereby quashed and set aside.