Appeal against the judgment of the Hon’ble High Court confirming the conviction of section 353 IPC
1. The present appeal calls in question the judgment dated 14.10.2009 passed by the High Court of Judicature at Jabalpur, Madhya Pradesh in Criminal Appeal No. 1949 of 2007. By the said judgment, the appellant’s conviction under Section 353 of the Indian Penal Code, 1860 (for short ‘the IPC’) and sentence of six months simple imprisonment and fine of Rs. 1,000/- imposed by the Special Judge, Sagar has been confirmed. Aggrieved, the appellant is in Appeal.
Originally appellant was charged along with his wife including PC Act charges
2. Originally, the appellant along with his wife Mamta stood trial. While the appellant was charged for offences under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) as well as Sections 201 and 353 of the IPC, his wife Mamta was charged under Section 353 and 201 of the IPC.
Appellant’s wife was acquitted on all the charges and the appellant convicted only under section 353 IPC
3. We are, in this appeal, concerned only with the conviction of the appellant under Section 353 of the IPC. The appellant has been acquitted of other charges and his wife Mamta has been completely acquitted including for the offence under Section 353 of the IPC. Accordingly, only those aspects of the facts which have a bearing on the present appeal are set out hereinbelow.
Appellant in collusion with his wife exercised criminal force on the trap team performing their public duty
11. Insofar as the charge under Section 353 of the IPC was concerned, the allegation was that the appellant in collusion with his wife with an intention to obstruct the members of the trap team in performing their public duty during the trap proceeding, attacked them or exercised criminal force on them. It is this part of the case which has been believed by the courts below.
14. We have carefully considered the arguments of the parties and have perused the records of the case, including the original records.
Section 353 IPC explained
15. At the outset, we extract hereinbelow Section 353 of the IPC:
“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 perusal of Section 353 indicates that whoever assaults or uses criminal force (a) to any person being a public servant in the execution of his duty as such public servant, or (b) with intent to prevent or deter that person from discharging his duty as such public servant, or (c) 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 the imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 350 IPC: Criminal Force explained
16. It is important at this stage to notice the definition of criminal force as defined in Section 350 of the IPC.
“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.”
As would be clear, what is required to establish criminal force is intentional use of force to any person without that person’s consent in order to the committing of any offence.
Section 349 IPC: Force: Explained
17. Section 349 of the IPC which defines force is extracted hereinbelow :
“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 8 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.”
Section 351 IPC: Assault explained
18. Assault under Section 351 of the IPC would mean 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.
19. In this background, if we peruse the evidence on record, insofar as the charge under Section 353 of the IPC is concerned, it will transpire that none of the ingredients required for convicting a person under Section 353 of IPC were attracted
Doctor’s opinion on the injury
26. We have also examined the evidence of Dr. H.L. Bhuria PW-13, who recorded the injuries as mentioned hereinabove and stated that the injuries might have been caused with hard and blunt object.
(Emphasis supplied
Defence witness
27. We have also carefully perused the defence witnesses including the evidence of DW-2 Sitaram Chourasia who generally states that three to four persons came and there was pushing and shoving (‘dhakka mukki’ as is evident from the Hindi deposition) between the accused and those persons.
Prosecution has not established the appellant has assaulted or used criminal force on the trap party
28. Having considered the oral evidence and the medical evidence, we are constrained to conclude that the prosecution has not established that the appellant has assaulted or used criminal force against the trap party. In fact, what transpires is that when the appellant was apprehended there appears to have been an attempt by the appellant to wriggle out and jostling and pushing appears to have happened, in the process of the appellant trying to extricate himself from the arrest. None of the ingredients of assault or criminal force have been attracted.
No evidence to show that the appellant has used hard and blunt object
29. Further, there is absolutely no evidence to show that the accused used any hard and blunt object. PW-13 Dr. H.L. Bhuria had deposed that the injuries on PW-9 Niranjan Singh, PW-8 N.K. Parihar, Constable Raj Kumar and Constable Shivshankar might have been caused by hard and blunt object. In view of the above, there is no evidence to indicate that the accused assaulted or used criminal force on the trap party in execution of their duties or for the purpose of preventing or deterring them in discharging their duties. In short, none of the ingredients of Section 353 are attracted. The jostling and pushing by the accused with an attempt to wriggle out, as is clear from the evidence, was not with any intention to assault or use criminal force.
30. In fact, it will be interesting here to contrast Section 17 353 of the IPC with Section 186 of the IPC under which Section the appellant has not been charged. Section 186 of the IPC reads as follows.
“186. Obstructing public servant in discharge of public functions.– Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”
To take cognizance under section 186 IPC procedure under section 195(1)(a)(i) of the Cr.P.C shall be followed
31. To take cognizance of Section 186, the procedure under Section 195(1)(a)(i) of the Cr.P.C. ought to have been followed. There is not even a complaint by the officer against the appellant for any offence having been committed under Section 186 of the IPC.
32. In view of the above, we have no hesitation in setting aside the judgment of the High Court. The result would be that the appellant would stand acquitted for the offence under Section 353 of the IPC. The Conviction under Section 353 of the IPC and the sentence imposed are set aside. The appeal is allowed. The bail bonds shall stand discharged.
Party
Mahendra Kumar Sonker Appellant(S) versus The State of Madhya Pradesh Respondent(S) – Criminal Appeal No. 520 of 2012 – August 12, 2024 – 2024 INSC 600 [3 judge].
Mahendra Kumar Sonker vs. The state of M.P 122892010_2024-08-12
