Madhya Pradesh High Court
Vijay Singh vs The State Of M.P. on 12 April, 2023
Author: Rajendra Kumar (Verma)
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CRIMINAL APPEAL No.2624 of 1997
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE RAJENDRA KUMAR (VERMA)
CRIMINAL APPEAL NO. 2624 OF 1997
BETWEEN :-
VIJAYSINGH SON OF SHERSINGH
PURABIYA, AGED 37 YEARS,
LABOURER, RESIDENT OF
TALAKHEDI, P.S. PIPARIYA,
TAHSIL PIPARIYA, DISTT.
HOSHANGABAD (M.P.)
....APPELLANT
(BY SHRI SIDDHARTH DATT - ADVOCATE
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION
PIPARIYA, DISTT. HOSHANGABAD
(M.P.)
....RESPONDENT
(BY SHRI C.M. TIWARI - GOVERNMENT ADVOCATE)
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Reserved on : 15/03/2023
Pronounced on : 12/04/2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Shri Justice Rajendra
Kumar (Verma) pronounced the following :
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
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CRIMINAL APPEAL No.2624 of 1997
JUDGMENT
This Criminal Appeal under Section 374 (2) Cr.P.C. has been
preferred by the appellant being aggrieved by the judgment of conviction
and sentence dated 10.12.1997 in S.C. No.107/1997 passed by learned
Special Judge, District-Hoshangabad whereby the learned Judge has
convicted the appellant for the offence punishable under Sections 353 and
506 of Indian Penal Code (hereinafter referred as 'IPC') as well as
Section 3(I)(X) of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989 and sentenced him to undergo R.I. for six months
in each offence.
2. According to prosecution story, on 12.02.1996, complainant-
Hemaraj was carrying out the inspection in the area of Talakhedi sub
canal. At that time appellant/accused came there and told Hemraj that he
gets the irrigation water from the well and do not enter the same from
canal. Complainant refused to do so and advised him to give an
application in this regard to higher official. He also demanded arrears of
past years. Being annoyed from the response received from complainant,
appellant/accused abused the complainant, made remark upon his caste
and pounced upon him to assault. Complainant reported the said incident
to S.D.O on which the FIR got registered against the appellant/accused.
3. After due investigation, police filed the charge sheet. The trial
court framed the charges and the appellant/accused abjured his guilt and
claimed to be tried and took the plea of falsely implication.
4. In order to substantiate the prosecution case, the prosecution has
produced as many as 05 prosecution witnesses namely; S.P. Malviya-ASI
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
CRIMINAL APPEAL No.2624 of 1997
(PW-1), Hemraj-Complainant(PW-2), Angad Singh Baghel (PW-3),
Vinod Kumar Tiwari-S.D.O (PW-4) and Baijnath-Villager (PW-5). The
trial Court also examined the accused under Section 313 of Cr.P.C. The
defence has also examined 03 witnesses namely; Keshav Singh (DW-1),
Pooran Singh (DW-2) and Vinod Kumar (DW-3). After considering the
evidence adduced by the parties, the learned trial Judge came to
conclusion that the appellant found guilty for the alleged offence and
sentenced him as mentioned in Para-1.
5. The learned counsel for the appellant submitted that the judgment
passed by the learned trial Court is bad-in-law and contrary to facts and
evidence of the case. The evidence led by the prosecution witnesses
suffers from serious infirmity. He further submitted that the record of trial
Court clearly suggests that there is no evidence to show that any criminal
force or assault were used by the appellant/accused towards complainant
to deter him from discharging his official duty. There was also no
ingredient to constitute the offence under Atrocities Act. There was also
delay in lodging the FIR. There are material contradiction, ommission
and improvement in the testimony of prosecution witnesses. Baijnath
(PW-5) who said to have been seen the incident, did not support the
prosecution story even then the learned trial court has convicted the
appellant. Indeed, on the date of incident, the appellant/accused along
with other villagers were going towards town Pipariya by tractor and
complainant also wanted to go in tractor but on refusal by the
appellant/accused, he falsely implicated the appellant/accused in the
present case. All the witnesses have clearly stated that the
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
CRIMINAL APPEAL No.2624 of 1997
appellant/accused was irrigating his land from the well of Vinod and he
only requested the complainant not to mention the same from sub-canal
even then the learned trial court denied the real circumstances and passed
the sentence only on the basis of assumption. The learned trial Judge also
committed error in not accepting the testimony of defence witness.
Learned counsel for the appellant has placed reliance in the case of
Bharatsingh and another vs. State of Madhya Pradesh; 2007 (1)
MPHT 451.
6. On the other hand, learned counsel for the respondent-State
opposed the submission made by appellant's counsel submitting that the
prosecution succeeded to prove its case beyond any reasonable doubt.
There is specific evidence against the appellant for committing the
alleged offences. The prosecution witnesses have stated sufficient against
the appellant to secure his conviction. The learned trial court has rightly
considered the evidence of the case. With the aforesaid submissions, he
prays for dismissal of the instant appeal.
7. I have heard learned counsel for the parties at length and perused
the record.
8. It is undisputed that the complainant belongs to SC category
whereas the appellant does not belong to SC/ST community.
9. Before going into merits of the case, it would be appropriate to
consider the legal aspect first.
10. On careful reading of Section 353 of IPC, it says that 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
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
CRIMINAL APPEAL No.2624 of 1997
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.
The essential ingredients of Section 353 of IPC are :-
"(i) A public servant must be assaulted or
subjected to criminal force,
(ii) It had to have been made on a public
servant when he was performing his duties,
(iii) The accused had intention to prevent or
deter the public servant from discharging his duties."
11. The main ingredient of Section 353 of IPC are "criminal force" and
"assault" which have been defined in IPC under Section 350 and 351. The
word 'criminal force' is defined under Section 350 of IPC and according
thereof whoever intentionally used force to any person without his
permission in order to conduct an offence and with the intention of
inflicting harm to that person in the form of injury, fear, or irritation, the
person is said to have been used criminal force. The word "force" has
also been defined under Section 349 of IPC and it says that "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
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Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
CRIMINAL APPEAL No.2624 of 1997
ways hereinafter described. Therefore, the essential ingredients of
criminal force are :-
"(i) Use of force must be deliberate.
(ii) Without consent and
(iii) The force has to be utilized in order to conduct an offence
or to cause hurt, fear or irritation to another person."
12. Further, the word "assault" has been defined in Section 351 of IPC
and on perusal thereof it appears that 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 apprehended that he who
makes the gesture or preparation is about to use criminal force to that
person, is said to commit as assault. The ingredients of using assault are
as under :-
"(i) The accused must make a gesture or plan to use unlawful
force,
(ii) Such gesture or preparation should be done in the presence
of the person in whose respect it is made,
(iii) The conduct was done with the intention of causing fear or
injury."
13. As far offence under Section 506 of IPC is concerned, it has been
consistently held by the Hon'ble Apex Court that mere vague and bald
allegations that the accused threatened the victim with dire consequences
is not sufficient to attract the provisions under Section 506 I.P.C. The
threat should be a real one and not just a mere word when the person
uttering does not exactly mean what he says and also when the person
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
CRIMINAL APPEAL No.2624 of 1997
against whom the threat is launched, does not feel threatened actually. It
should appear that the complainant was feeling fear for his life.
14. As far offence under Section 3(1)(x) of SC/ST is concerned, on
reading thereof, it appears that whoever not being a member of a
Scheduled Caste and Scheduled Tribe intentionally insults or intimidates
with intent to humiliate a member of a Scheduled Caste or a Scheduled
Tribe in any place within public view, shall be punished with the sentence
mentioned thereon.
15. Now, this Court will examine the evidence available on record to
arrive at conclusion whether the finding given by learned trial Court is
correct or not ?
16. In the case on hand, as per the prosecution, while the complainant
was discharging his duties, the appellant/accused abused the complainant
making caste remark and pounced upon him with an intention to assault.
On perusal of statement of complainant Hemraj Choudhary (PW-2), it
appears that on the date of incident i.e. 12.02.1996, he was performing
inspection of land regrading irrigation thereof from canal water and in
order to said inspection, he met the appellant/accused in respect of his
land bearing survey No. 71. The appellant/accused was trying to prevent
the complainant from mentioning his land being irrigated from water of
sub-canal wherefrom the appellant/accused was using water. When the
complainant did not listen to him and advise him to go before higher
officer as well on demanding arrears of past years, being annoyed from
the action taken by the complainant, the appellant/accused committed
alleged offence. In his cross-examination, the complainant accepted the
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
CRIMINAL APPEAL No.2624 of 1997
suggestion that the incident was also seen by Barelal, Vinod, Pooran
Singh, Keshav Singh, Raghuraj Singh and Baijnath.
17. The record of trial Court indicates that out of above persons, only
Baijnath has been examined as prosecution witness No.5 whereas Keshav
Singh, Pooran Singh and Vinod Kumar have been examined as Defence
Witnesses No.1, 2 and 3. On perusal of statement of Baijnath (PW-5), he
stated that on the date of incident, the appellant/accused, Keshav Patel
and he himself were going towards village Shobhapur by tractor and on
the way the complainant met and stopped them. Thereafter, the
appellant/accused told the complainant not to mention his land being
irrigated from sub-canal as he was carrying irrigation water from the well
of Vinod (DW-3). The complainant refused to do so. Baijnath (PW-5)
denied any altercation between the appellant and complainant. In his
cross-examination, he accepted the suggestion made by defence counsel
that the appellant/accused used to irrigate his land from the well of Vinod
and not from canal.
18. On perusal of statement of Vinod (DW-3), it is reflected that he
accepted in his cross-examination that on the date of incident he had
given water to appellant/accused from his well.
19. On due consideration of statements of above witnesses, it is found
that there is no any cogent evidence to show that the appellant has used
any criminal force on the complainant or uttered abusive word on his
caste. The only facts came to the notice are that on the date of incident
some chat was made between the appellant and complainant regarding
entry of his land in revenue record being irrigated from sub-canal and
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
CRIMINAL APPEAL No.2624 of 1997
apart from these words, there was absolutely no use of criminal force or
even an attempt to use such force. Only simple argument between the public
servant and any other person can not be termed as obstruction in discharging
the duties of public servant. It is settled principle of law that to constitute the
offence under Section 353 of IPC, the prosecution has to prove that the
accused had used criminal force with the intention to cause injury, fear or
annoyance to the public servant. In the absence of such evidence, offence
under Section 353 of IPC would not be attracted. Similarly, there is also no
sufficient evidence to constitute offence under Section 506 of IPC as well as
Section 3(I)(X) of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act.
20. Hence, in the face of lack of any cogent evidence, it is unsafe to
convict the accused. Therefore, this Court is of considered opinion that view
taken by the learned trial Court in convicting the appellant/accused under
Sections 353 and 506 of IPC as well as Section 3(I)(X) of Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act, 1989 cannot be
sustained. Consequently, impugned judgment dated 10.12.1997 in S.C.
No.107/1997 passed by learned Special Judge, District-Hoshangabad is
hereby set aside. The appellant is acquitted from the said offences. The
appellant is on bail, his bail bond stands discharged.
21. Appeal is allowed.
Copy of this judgment along with record of the learned trial court be
sent to the learned trial court for information and compliance.
Certified copy, as per rules.
(RAJENDRA KUMAR (VERMA))
JUDGE
Kafeel
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/13/2023
5:49:46 PM
